49. Permission in Principle, but not without principles

The Housing and Planning Bill currently working its way through Parliament suggests something quite dramatic that will depart radically from how we have long done planning in the UK, namely the move to permitting development via a ‘Permission in Principle’ (PiP) relating to sites on a register of brownfield land held by each local authority, or otherwise identified in a local or neighbourhood plan[1]. The provision sits as part of the larger and on-going drive to deregulate planning in England driven forward by the Government’s belief (which many contest) that this will help to deliver more new homes, faster. So far the prime target for this attention has been the Use Classes Order, but the new provisions in the Bill continue the direction of travel,

Zoning not zonal

In the run up to publication of the Bill the Government talked about the introduction of a ‘zonal’ system for brownfield sites, and in doing so directly equated the change to a move from our long-established ‘discretionary’ system of decision-making to an ‘as of right’ system as practiced by most of the rest of the world. Yet ‘zonal’ is not the same as ‘zoning’.

The division of development plans into zones allocated for particular land uses has long been a feature of British land use plans with its origins in the desirable aspiration to separate heavy industry from homes in urban areas. Yet whilst these aspirations were laudable, history tells us that as heavy industry declined, the tendency to separate land uses from each other persisted, often for no good reason. In this country it lasted at least until 1997 when changes to planning policy (PPG1) reflected a realisation that single land use zones were rarely justified and led increasingly to an unsustainable city. There should be no desire to go back to the days of crude single-use zones (if we ever truly escaped from them).

So how does a fully fledged system of zoning differ from this? At its simplest zoning attempts to control three things: bulk (the amount of development on site, largely controlled through defined Floor Area Ratio), form (how the development sits on site and its shape – plot width, area, coverage, set backs, open space, heights, parking. etc.) and use (the functions being accommodated). In other words, zoning controls the extent, nature and type of development, and not just the use!

Such zoning systems range from: incredibly crude and simple systems with often perverse design outcomes such as found in Japan[2]; to more sensitive but ultimately hugely complex systems such as New York’s with its 900 page zoning ordinance and legions of zoning lawyers to interpret it[3]; to very sophisticated models as found in many continental European countries such as Germany. In Germany, land use provisions are accompanied with carefully constructed site-specific regulating plans (B-plans) that establish the morphological framework within which development occurs[4]. In effect this guarantees design quality by establishing the unifying urban framework through which subsequent developments (large and small) coalesce to form coherent and connected bits of the city.

Kirchsteigfeld, Potsdam: Extract of B-plan

Any move towards zoning in the UK should certainly emulate this final model with its combination of certainty of provision and certainty of outcome. It should strongly avoid the former models. But how can this be done?

LDOs + design codes

Speaking at The Place Alliance BIG MEET 4, Brandon Lewis, the Minister of State for Housing and Planning, argued that “an increased focus on good quality design could help us to deliver more homes, at a quicker pace, which communities can feel proud of”[5]. He suggested that the Housing and Planning Bill is establishing the bones of a new system but conceded that the detail of delivery has still to be worked out.

The Bill itself specifies in Section 58A that an “application for technical details consent must be determined in accordance with permission in principle”, and later that an application for Technical Details Consent is in effect a planning application relating to development in an area covered by a permission in principle. Nowhere is the form and content or matters to be considered under such an application specified.

It could be, for example, that all material considerations that would normally apply to a planning application elsewhere (those specified in the NPPF) would also apply to land subject to a PiP, and therefore that the designation merely establishes and gives certainly about the principle of development (the equivalent of an outline permission). Yet this is unlikely to sit comfortably with the Government’s wider aspirations as reflected in the Ministerial quote (whether justified or not) to speed up planning.

An alternative solution would emulate an idea first mooted at the time of the Government funded design code pilot programme of the mid noughties[6]; namely tying the designation of Local Development Orders (LDO) to the provisions of design codes. The practice guide that stemmed from the pilot programme argued: “if used alongside design codes, LDOs offer considerable potential to deliver high quality development with considerable certainty to applicants and speedy implementation of development. When linked to a LDO, developments in accordance with the design code would effectively be permitted development for which no planning application would be required”[7].

Given that a Development Order (albeit national rather than local) is also the means by which the Housing and Planning Bill aims to implement PiP, there is a clear logic to this proposition. Indeed long before the current changes were mooted, LDOs have in effect been doing exactly the same job by granting planning permission for the types of development specified in each order and therefore removing the need for a planning application. In effect they simply extend on a localised basis the provisions of the General Permitted Development Order.

PiP + codes

To date, the combination of LDOs and codes remains largely untested in practice, although research following up the original design code pilot programme six years on confirmed that design codes themselves help to deliver high quality outcomes and once in place can also streamline planning decision-making associated with design[8]. More recent research conducted by the Planning Advisory Service (PAS) into the use and utility of LDOs concluded: “the majority opinion from participating councils is that LDOs speed things up”[9]. LDOs currently being adopted in Havant and Cherwell are finally exploring the potential of a combined LDO / design code process but it is early days.

Of course the preparation of design codes themselves requires an up-front investment that is only reaped much further down the line. There are also good and bad codes and many design codes being produced today are far too long and detailed! Moreover the investment in coding multiplies if multiple codes are required for many sites. The design code pilot programme nevertheless revealed that design codes could be prepared either on the basis of large individual sites, or across multiple smaller related sites in contextually homogenous areas.

The question then is, why go to all the bother and expense of preparing site specific codes when a national checklist or local authority wide guide might do? In contrast to such generic forms of guidance, design codes operating on the basis of individual sites or closely defined areas have a number of distinct advantages:

They can be easily updated or renewed as the market or policy changes
They can be speedily prepared as and when sites come up for development and do not have to anticipate every eventuality years in advance and for every site covered in a brownfield register
Developers typically pay for the production of design codes and welcome the certainty they provide (at little cost to the public purse)
Their preparation can be mandated as a requirement of the award of PiP through the Development Order, whilst the technical details consent can act as the ‘light-touch’ check that the provisions of the design code are being delivered
The qualities they espouse can be subject to public discussion and engagement very early in the development process, and long before proposals have become too detailed for public concerns to be taken on board
Such a localised approach to particular sites ensures a greater focus on high quality contextually appropriate design, and will ultimately deliver higher quality design and greater public support.

Don’t leave it to chance

Used in this way, site specific design codes can help to define a kind of urban DNA similar to that of the German B-plans to sit alongside the PiP, and ultimately the right framework for the provision of the sorts of high quality sustainable housing that this country needs. Indeed recent research has again confirmed that design codes themselves help to deliver high quality outcomes, and once in place can also streamline planning decision-making associated with design[10]. Rather than undermining certainty, which the use of unrestrained PiP could do, the use of PiP + codes might help to deliver far greater certainty around outcomes for all concerned; and in particular for the developers and local communities.

There is no harm discarding a little of our beloved discretion in planning, as long as this can be done without abandoning the principles that underpin good planning and in particular the achievement of high quality design. Without the necessary safeguards in place provided by carefully designed design codes, the danger is that PiP will lead to more sub-standard housing development and to a further undermining of local community support.

No one, not least the Government, will benefit from that. We shouldn’t leave it to chance!

Matthew Carmona

Professor of Planning & Urban Design

Bartlett School of Planning, UCL

m.carmona@ucl.ac.uk

February 2016

[1] Sections 102 and 103, http://www.publications.parliament.uk/pa/bills/cbill/2015-2016/0075/16075.pdf

[2] Design Matters 34 and 35 https://www.bartlett.ucl.ac.uk/cross-faculty-initiatives/urban-design/latest/design-matters

[3] Design Matters 33: New York as-of-right – is the time right for the UK? https://www.bartlett.ucl.ac.uk/cross-faculty-initiatives/urban-design/latest/design-matters

[4] Stille K (2007) “The B-Plan in Germany”, Urban Design, 101: 24-26

[5] https://www.bartlett.ucl.ac.uk/placealliance

[6] Carmona M & Dann (2006) Design Coding in Practice, An Evaluation, London, DCLG