The Sad Ignorance of the Planning System has been on full display recently

The level of politics currently rotting the UK planning system is destroying housing supply

Social Housing

Christopher Worrall is a housing columnist for LFF. He is on the Executive Committee of the Labour Housing Group, Co-Host of the Priced Out Podcast, and Chair of the Local Government and Housing Member Policy Group of the Fabian Society. 

As previously reported, we recently witnessed a Labour-led council reject a 50 per cent affordable housing scheme in Wandsworth. Subsequently, Labour members of the planning committee that voted alongside the Tories against the scheme have featured in a Wandsworth Conservative campaign YouTube video titled “The Springfield Decision”.  The video is further evidence of the capture of our planning system by NIMBYs, in this instance embodied through a decision outcome weaponised for political gain. This planning piñata highlights the sheer inadequacies of participants in a system who are meant to be undertaking a role of public scrutiny. For those involved in the front line of the growing Yes In My Back Yard (YIMBY) movement, we must turn to scrutinising the scrutinisers as the war on NIMBYism unfolds.

The weaponised campaign video featured comments at the recent planning committee from Tory Councillor Peter Graham. He had lauded the 529 NIMBY objections, highlighting the ratio of 60 to 1 against 9 letters of support. Such a result shines a light on the selective bias of the consultation processes in our planning system. It is worth noting, thousands of Wandsworth residents languish on the social housing waiting list, without a single voice of theirs heard at such committees. Instead it is the elected politicians, more often than not sharing such circumstances, who review such cases in the name of public interest.

A clip of Cllr Graham in the campaign video showed him citing the Wandsworth Society, who accused the council of “sleight of hand”. Nothing short of an attempt to damage their reputation. Cllr Graham went onto describe the 5 storey proposal as “overdevelopment”. A term that has no planning basis in policy terms. And is often used as an immeasurable term to suit NIMBY objectives.

Cllr Graham added further claims that the proposal was an example of “developer greed with an NHS sticker slapped on top”. To note, the comments made by the councillor for two roads in the locality of the site are clearly political, with the intent of polarising public opinion. None of these comments being in any way relevant to what are known as ‘material considerations’, which are what are meant to be considered on a planning committee. Many supporters of keeping the current system with minor tweaks would describe the planning system we have today as suitably sufficient. Simply not implemented as they were intended. Yet the weaponisation of planning decisions for political gain, ahead of a Mayoral and London Assembly election process, calls the whole system, and the role NIMBYs play, into question. 

Labour councillors featuring in the Tory campaign video made comments that for some fair-minded and informed observers, could potentially warrant predisposition or apparent bias. One stated they “do have some issues with developing on any Metropolitan Open Land”. This comment may lead someone to believe that a committee member with issues developing on “any” Metropolitan Open Land (MOL) may lead a fair-minded and informed observer to conclude there was a real possibility the decision maker may have been biased or evidence of predetermination. After all, there are situations in planning terms where developing on MOL is appropriate. Ruling out “any” development on MOL may suggest they have a predetermined opinion.

Others may argue that it is merely a predisposition, which is not the same as predetermination. In particular, through caveating the statement with the use of “some” issues. Another Labour councillor featuring in the Tory campaign video was clipped making comments relating to their opinion of the site on the whole. Stating “I think is impossible not to take the whole thing as whole, and if you take the whole thing as a whole there is only 29 per cent affordability here and that is not really that good for such a big site”.

Such a comment may lead one to believe that the approach has not been made with an open mind. Comments pertaining to a hypothetical calculation not relating to the case put in front of them may find that a member has not made an impartial assessment. As the case they were making was not partial to the facts presented. Councillors after all must not consider irrelevant and inappropriate matters that may be popular with voters, as some may argue is the case with the aforementioned affordable percentage comments. It is worth noting, the planning application that achieved 50 per cent affordable was made for a component part of the site. Yet did not appear to be a material consideration on the point made by the councillor in question. This councillor in particular also represented two roads adjoining the site within the locality.

Yet these are odd times when the Tory leader of the opposition, Cllr Humphries, pointed out it was a first time the Labour councillor and the Tories agreed on something relating to housing. In this case a shared love of NIMBYism and opposition to desperately needed housing. But whether such comments evidence of bias, or a predisposition of bias, is one for expensive barristers to decide, should the applicant decide to appeal.

Whether such use of strawman arguments are unlawful, or are simply decisions taken that conflict with the local plan based on merits of the case in light of all other material considerations, would only come to light in the event of said appeal. After all, it is the developers with the money who can sponsor such expensive endeavours. Not those languishing on the housing waiting list in an already deeply gentrified neighbourhood like Wandsworth. 

Naturally, some of the Labour councillors involved with refusing this application took umbrage on X, the platform formerly known as Twitter, at previous coverage of the decision outcome. London Assembly Member, Cllr Leonie Cooper, described the coverage as “poor reporting” and a “sad ignorance of the planning system”. Going on to claim that councillors “have to leave their politics outside planning committees, which are quasi-judicial”. Stating further that local elected councillors make decisions “on planning grounds only”, giving an example from the case in question that “opposing building on Metropolitan Open land (as in this case)” excuses any questioning or scrutiny of their decisions.

Unfortunately, the only sad ignorance of the planning system on display is the claim that the process is indeed “quasi-judicial”. Unlike licensing committees, planning committees are not quasi-judicial. Councillors are not unelected judges. As such comments would lead you to believe. Committee members are elected politicians. Within this context we must remember that typically over 90 per cent of planning decisions are made on delegated  authority, which means the qualified officers make the decisions on cases that are not complex or potentially controversial.

Committees that involve elected officials are used when it is believed to require public scrutiny or when it may have significant impact to the local area. But this is where the problem lays. Those who are undertaking the scrutiny hijack the process, often throwing policy to the wind, turning such committees into a political Punch and Judy-esque performance. Officers are often left faced with asking uncomfortable questions that highlight the lack of understanding of said elected officials. Providing viewing that results in significant levels of cringe.

An example of this is where Jules Pipe, the GLA Deputy Mayor for Planning, asked the Chair of Tower Hamlets planning committee for evidence the scheme could provide more affordable housing that the council had rejected. It came after the Mayor of London called in the 1,500 home regeneration scheme on the Aberfeldy Estate, on grounds it did not have enough affordable. The inference was the applicant was capable of providing more affordable housing, asking “where is the evidence the applicant was wrong, the independent consultants were wrong, and the GLA review of affordable housing levels is wrong”.

Cllr Amin Rahman was unable to provide any evidence on behalf of the council in this vain. On a side note, this was the very same councillor who has been reported to request a bribe to a renew licence that could end up with the council having to pay 16 months’ loss of business in costs. In regards to the Wandsworth committee, and Cllr Paul White’s claims the proposal did not provide enough affordable, goes to show how going against your own councils recommendations for approval can be fraught with incompetence or lack of scruples.

The fact remains, determination of a planning application is a formal administrative process involving the application of national and local policies, reference to legislation and case law, as well as rules of procedure, rights of appeal, and an expectation that people will act reasonably and fairly. This has previously been outlined in the Local Government Association Planning Advisory Service (PAS) document titled ‘Probity in planning’ guidelines for councillors and officers. While made explicit in the 2013 update, the more recent update still clarifies the exact point. A document all participants on a planning committee should be referring to throughout their undertakings. And yes, it is as complicated as it sounds.

More importantly, in terms of democratic accountability and general principles of sound decision-making, the Court of Appeal has held that planning committees are not acting in a judicial or quasi-judicial role when deciding planning applications. As these meetings are held in situations of “democratic accountability”. This means that members of the planning committee are not acting in the same way as judges or quasi-judges. For Cllr Leonie Cooper to claim councillors have to leave their politics outside a planning committee is factually incorrect. As aforementioned, politicians are supposed to be providing public scrutiny. But in this instance, as there are many other such cases, confused as to what their role actually entails.

The Court of Appeal recognised that members are elected to formulate and pursue policies, which therefore means they are not required to cast aside views on planning policy they will have formed when seeking election, or when acting in their role as councillor. Unlike judges, such members are not required to be independent or impartial. They are required to address the planning issues before them fairly and on their merits, though they may approach them with a predisposition in favour of one side of the argument or other. Unlike if they were acting as an impartial judge themselves.

Speaking of judges, the judge in R (Lewis) v Redcar & Cleveland BC specifically stated that “no pretence that such democratically accountable decision makers are intended to be independent and impartial just as if they were judges or quasi-judges”. One should take note when making suggestions to another of sad ignorance of the planning system. But this is just yet another example of the politicisation of our planning system. It is set up for a game of political football, which merely turns into a boxing match for well-paid planning barristers on appeal or judicial review, with planning consultants and architects as their corner men (or women).  Or cheap attempts at point scoring on social media.

Such decisions at planning committee are currently meant to be based on balancing competing interests, while making informed judgement against a local and national policy framework. All in the name of the wider public interest. The decision should not favour any person, company, group, or locality, or appear to be doing so. What committee members cannot show is bias or predetermination. Bias is where one shows, or is perceived to show, inclination or prejudice for or against one party or interest in a way that is unfair. Predetermination on the other hand is where one approaches a decision with a “closed mind”.  What is clear is that local councillors often mask their bias behind trumped up claims of balance, which often find themselves getting caught out behaving unreasonably. Often resulting in hundreds of thousands of pounds being awarded to developers who successfully appeal on such grounds.

Bias comes in two forms. Actual bias and apparent bias. The former is very difficult to prove and effectively redundant because unnecessary to allege given apparent bias is sufficient. Meanwhile, apparent bias can be found by applying the Magill Test from Magill v Porter [2002], which assesses “would a fair-minded and informed observer, having considered the facts, conclude there was a real possibility of bias”.

An example of apparent bias can be found in the Piffs Elm Ltd v Tewkesbury BC [2016] case, where a planning officer was married to the planning manager of a rival developer.  The council had rejected three applications from Piffs Elm Ltd. It just so happened the husband of the planning officer worked for a developer that owned land on the green belt near to where the applicants to the rivals site in question.

In any case, the overarching point is that our discretionary case-by-case planning system is so flimsy and susceptible to incompetence, wishy washy arguments, and weaponisation for political gain, that it is simply not fit for purpose. Matthew Pennycook recently discussed at a Westminster Hall Debate that Labour believes a discrete number of targeted changes to the existing system, coupled with decisive action to ensure that every element of it functions optimally, will ensure we significantly boost housing supply. He describes calls for a zonal system as something that would entail “an entirely new system”, which he claims is not the answer.

However, when we have Permissions in Principle (PIP) and Permitted Development, much of what is being called for would not require a root and branch overhaul. It is likely that Labour’s brownfield ‘Planning Passports’ will utilise PIPs. Routes to a PIP can be found where sites are entered into a brownfield land register. But not “major development”. These circumstances may be discretely tweaked, but to what extent these are financeable remains uncertain. Often PIPs require a Technical Detailed Consent (TDC). In effect, where the council assesses the detailed scheme applied. It is under this consideration lenders can still remain uncomfortable, something an incoming Labour government will need to unpick.

Ultimately, what councils, planning consultants, elected officials, planning barristers, to name a few, enjoy about the current system is its flexibility. But this flexibility comes with costs. Notably huge uncertainties and destructive harm to housing numbers. The nature of our case-by-case system results in the need for huge amounts of documents for planning validation, which provides substantial work requiring specialist input. Often at huge costs if parred in relation the lives of normal Joe Soap.

These issues have not gone unnoticed. The Housing Forum set out a number of concerns of such an approach. Where they have recommended a move to one focused on planning statements. The large amount of information at an early stage increases the workload for applicants and local authority officers, often leading to a number of changes over time. The result, ultimately undermining community confidence.

A move away from the minefield of policy and opinion that plagues our system, that we see weaponised, misunderstood, or incorrectly interpreted by elected officials, should be a key focus of planning reform. The Springfield Decision is a perfect example of what is wrong with our planning system, where those involved will seek ways that fit the definition of material considerations to make the case such issues outweigh the importance of a scheme that can deliver 50 per cent affordable. Sometimes these material considerations are unlawfully claimed.

The level of political decay in the UK planning system is destroying housing supply, eviscerating investor confidence, and harming those who need housing most. If Labour is to plan for growth it must first start at the top through national policies that require more detailed planning at the local level, which through flexible zoning can provide. Such rule change would provide clear parameters to developers, while delegating more authority, front-loading political input from the community at outset. Only this will reduce the ability of NIMBYs to weaponise planning outcomes, remove the potential for bias or predetermination of elected officials, and avoid unreasonable behaviour.

Sadly, those on the housing waiting list have little to no ability to legally challenge these negative outcomes, most notably due to the costs and difficulty to organise. But it is often those very same people on the bottom of the housing ladder who end up paying for such poor outcomes. Inevitably through increased council taxes to cover the costs of appeals that are successfully challenged. In addition to higher rents and house prices.

Still, it is sad to say that the war on NIMBYs is not just one that is purely aimed at Labour’s political opposition. We still have leaders of councils, including Wandsworth, who openly oppose housing schemes on preferences concerning height. As opposed to supporting what could be achieved for those on the waiting list if such schemes were built. The YIMBY movement should watch carefully comments from councillors, and leaders, who oppose new homes. And call them out. Public scrutiny after all, runs both ways.  

The leader of Wandsworth Council has been approached for comment

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