Posted by: Adam Roake | June 15, 2010


It’s always nice to get free Counsel’s Opinion, so many thanks to Peter Village QC for his opinion that Eric Pickles’ letter is unlikely to stand up to legal challenge. I’d already heard a similar, but informal, opinion from a QC neighbour of Mr Village and you do have to wonder who is advising Mr Pickles and his ministerial team. The busiest Planning Advisory Service forum is awash with debate on the alleged abolition of Regional Spatial Strategies asking the simple question what numbers should we use if not the RSS numbers. But as Mr Village points out, RSS do still exist and until Parliament says they are no longer part of planning law, they will remain part of the Development Plan and must be considered as such when determining planning applications.

As a matter of fact, RSS numbers have been tested in public at RSS Inquiries and have either been confirmed or amended within the published RSS. This was an open and democratic process and is still actually part of planning law, regardless of Mr Pickles‘ letter. The Option 1 numbers, where Local Authorities continued to promote them at RSS Inquiries, were found to be unsound in an open and democratic process. It seems odd to suggest, as the Conservative Green Paper does, that these Option 1 numbers are in some way more robust than those which finally emerged through the RSS process; on the contrary, it seems obvious that they must have been found wanting through the Public Inquiry process and consequently quite rightly were rejected.

The alleged abolition of “garden grabbing” is also attracting negative comment. The evidential basis put forward by CLG for excluding “private gardens” (whatever they might be because unhelpfully there is no definition in the PPS) from brownfield land is that there has been “a dramatic increase in the number of new houses being built on previously residential land“. This, it seems, is responsible for “robbing communities of green breathing space, safe places for children to play and havens for urban wildlife“. Surely it is perfectly appropriate to build new houses on land which was previously residential land. Obviously some of that previously residential land will have been garden space, which has therefore been lost. However planning policies will require appropriate garden space for the new housing, so there must be a reasonable re-provision of private garden space. If the proposed development delivers a reasonable quantum of private amenity space, measured against Development Plan policies and guidance, presumably there is no demonstrable harm in planning terms (I am of course assuming “private gardens” and “private amenity space” are one and the same). Without an analysis comparing the previous private garden to the re-provided garden space, the statistics quoted by CLG are at best irrelevant and at worst totally misleading. As for the allegation that communities are somehow “robbed” by this sort of development, they never had rights to the private gardens in the first place; that’s why they’re private!

The knockout blow however is that there is no presumption against development on land excluded from the definition of previously developed land. On the contrary, the national target of 60% of new housing on previously developed land assumes that up to 40% of new development will occur on undeveloped land such as private residential gardens. If a private garden is within an area deemed suitable for development (e.g. within the settlement boundaries defined in a DPD) then its development per se must be acceptable, unless some other harm can be shown. And that of course was precisely the situation prior to the change in PPS3.

Perhaps I am being unfair, but it seems to me that the Coalition government is driving headlong down the path of populist policy-making and to hell with the evidence. This is clearly not a “progressive” move, to use the minority partner’s favourite word. Pickles’ mantra of localism seems to be leading to policies which promise much in terms of allowing local objections to prevent “unacceptable overdevelopment” but are actually no better than red herrings when tested against current planning law. “These ad hoc decisions do not a housing system make“, to quote the excellent Tim Williams in his Regeneration blog. The interventions from Mr Pickles and his colleagues into housing and planning policy have been notable only for their ineptness. Whilst purporting to offer Local Authorities greater control over development, in fact neither change makes the slightest difference. Can we expect better in the future? According to the Sunday Telegraph, this week will see Mr Pickles abolish of regional Development Authorities. Brace yourself for more policies founded on misconception and devoid of any evidential basis.



  1. As an interested amateur can I offer my thanks for a very help analysis of the recent ‘knee jerk’ responses from Mr Pickles and his team of expert(?) advisors.

    Unfortunately, this populist response appears to be due to a couple of things. The first is the general lack of interest displayed by members of government with no planning input or interest. In the absence of such due diligence by other disinterested members, the ‘planners’ can run riot – first it was Prescott now it appears to be Pickles.

    The second problem, is that those members who did raise genuine concerns about the impact of gardens being class as PDL and increased, densities, maximum parking standards etc, were treated in the same way climate change sceptics are, as climate change deniers and therefore not worthy of a hearing let alone an opportunity to influence things.

    Regional government has imposed a one size fits approach to too many areas of England and is suffering a backlash from those who now have the ear of government. Instead of acting as an interpreter and co-ordinator of government policy, regional offices were seen as the enforcers – we know best, just do it!

    A bit simplistic I know, but in the absence reasoned debate, top down imposition is bound to cause a build up of resentment and the populist reaction you are now witnessing.

    The professionals need to be swift and pro-active in this. They need to produce a set of alternative options that address the concerns voiced so far and offer some of the localised control that has suddenly become flavour of the month. If real localism takes hold in planning terms, we might as well go back to the fuedal system and have done with it!
    Waving law books at Mr Pickles and co might give short term wins, but it will offer no more than a stay of execution, not a royal pardon – the Tories will have their revenge on Labour’s regionalisation agenda!

  2. Thanks Roger for your comment.

    My perspective as a developer is perhaps slightly different from that of a local authority planner. As a developer, I see confusion in planning policy generating opportunities unintended by legislators. Unfortunately those opportunities almost always result in development in inappropriate locations which don’t create decent places. So with my citizen’s hat on, I want well considered planning policy which allows sufficient development to meet demand in appropriate locations.

    All the professional advice I have seen suggests that the total housing numbers “imposed” by the previous central government were about right. The Option1 numbers, discredited at Examinations in Public but promoted by your parties Green Paper aren’t that dissimilar, so the need for significant new housing development, particularly throughout the south and east of England, for most professionals is a given and there are no alternatives. Rather it is up to politicians to lead on how and where development should happen.

    As you rightly point out, real localism might not be such a good idea! With the best will in the world, it is not fair to expect you and your colleagues, with majorities of no more than a couple of hundred votes, to ignore a five hundred signature petition from your constituents against proposed development. And, rightly in my view, you don’t seem too impressed with Grant Shapps’ idea of incentives to development. So can a localist agenda really deliver the housing numbers that professionals are quite clear we need?

    I don’t see this as a problem professionals can solve. Surely it’s an age old political problem – who makes the decisions? If it’s at local level, it won’t happen. If it’s at central or regional level (they’re both too remote), it feels like imposition. I suspect that until politicians (sorry to chuck it straight back!) can provide the leadership to say ‘sorry guys we need more houses and this is the best place for them’, we won’t deliver the homes our children desperately need. How you do that and still get elected next time, is a tricky problem, as perhaps Labour just found out!

  3. […] area. How different those targets might be from the RSS figures is difficult to say, because the Option 1 figures are probably unsound (see also Peter Village QC’s opinion in Regeneration and Renewal), if they were rejected at […]

  4. […] our programme for government, page 11), and how the Coalition now appears to see evidence as an unnecessary burden on policy-making.  Just before Christmas, CLG asked anyone who’s interested to tell them what should be in the […]

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