UK: Red Tape Challenge Targets Planning Regulations

Last Updated: 11 February 2013
Article by Angus Walker

Todays entry analyses the red tape challenge, currently being applied to planning.

Last week the searchlight of the 'red tape challenge' reached planning regulations, including infrastructure planning.  What does that mean?  In short, some regulations could be merged, simplified or revoked in the next few months, and there is an opportunity to suggest changes, or defend existing regulations.

Red tape is a term popularised by Thomas Carlyle in the 19th century to mean (unnecessary) bureaucracy, taken from the practice of tying government documents in red ribbon.  The red tape challenge is a government initiative to reduce the amount of secondary legislation (orders, rules, regulations etc.).  Every couple of months it visits a new area of law and invites comments on how that area could be slimmed down.  A list is provided of all existing regulations, but nothing more than that.  As heralded in this blog post - albeit a little late - the spotlight has just turned to planning.

From 31 January until 8 March (not easy to find that deadline), comments are invited on 180 planning regulations.  The main consultation page is here. The regulations have been divided into four categories, listed in spreadsheets as follows: planning procedure, planning infrastructure and major projects, planning authorities and local planning.  Having said that, 120 of the regulations are in the first category so it's a somewhat uneven split.

Two 'champions' have been appointed to publicise the challenge: Mike Kiely of the London Borough of Croydon and Roger Hepher of Savills - public and private sector respectively.  Their role is principally one of profile-raising, but they may get involved further later.  Mike puts the task neatly into three parts:

  • get rid of what's no longer needed,
  • consolidate the bits that have frankly got out of hand and
  • amend the stuff that could just work a bit better

The official line is a little wider and more neutral:

  • Could their purpose be achieved in a non-regulatory way (eg through a voluntary code)? How?
  • Could they be reformed, simplified or merged? How?
  • Can we reduce their bureaucracy through better implementation? How?
  • Can we make their enforcement less burdensome? How?
  • Should we scrap them or leave them as they are? Which?

Meanwhile, blog subscriber Roger tells me the that "the Planning Encyclopaedia is littered with regulations relating to the 1946 New Towns Act, ironstone workings in 1948, and many other events that now seem deeply embedded in planning history". He sees this as "a great opportunity to clear the decks of material that no longer serves a useful purpose - or which would at least benefit from being brought up to date".

This is therefore both a challenge and an opportunity - it is a challenge (although the opposite of the intended one) because some will wish to defend the continuation of some regulations in the face of calls to abolish them, but also an opportunity to make improvements that would be of general benefit. And changes are indeed made - see some stats on other areas at the end of this post.

You can respond in a web 2.0 way by adding your comments directly and publicly to the consultation web page, or be more 1.0 and send them privately by email. At the time of writing, no-one has been moved to respond to the infrastructure section, but there are a couple of comments on planning procedure already.

The infrastructure regulations

The infrastructure sub-category has 24 sets of regulations in its spreadsheet.  11 of them are made under the Planning Act 2008 and the other 13 are from a hotchpotch of other Acts.  I won't comment on the latter set, although as Roger suggests I think no-one will mourn the passing of the Town and Country Planning (Ironstone Areas Special Development) Order 1950 - indeed in the spreadsheet it is described as 'spent'.  One down, 179 to go...

Curiously, the 11 Planning Act regulations aren't all the regulations made under the Planning Act - there are 22 in total.  Two of those are the two development consent orders (DCOs) for projects that have been approved, and I don't think Network Rail would take kindly to them being revoked just yet, but that still leaves nine that aren't on the list,  They must either be (a) in another challenge category, (b) omitted by mistake or (c) omitted on purpose.

I have four suggestions to get the ball rolling:

Part of the Infrastructure Planning (Miscellaneous Prescribed Provisions) 2010 should be revoked - the list of consents where the consenting body has to consent to their inclusion in a DCO.  This is part of creating the full 'one stop shop' that the National Infrastructure Planning Association (NIPA) has been pressing for and an amendment on this is due to be debated in the House of Lords today. 

Incidentally, acts of parliament are 'repealed' but secondary legislation is 'revoked', should you be responding to the consultation and want to get the terminology right.

The Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 should be revoked and merged with the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009.  Having steps required to be taken for the same process given in two different sets of regulations is just asking for project promoters to make mistakes.

The Infrastructure Planning (Interested Parties) Regulations 2010 should be revoked and merged with the Interested Parties (Examination Procedure) Rules 2010.  Again it would make things simpler if the provisions about the same part of the process were all in one place.

The Infrastructure Planning (Model Provisions) (England and Wales) Order 2010 should be revoked and replaced with government guidance.  Model provisions aren't really legislation, they are just recommendations or suggested precedents to be followed.  Nevertheless they shouldn't just be revoked without anything to replace them as they are useful to promoters and examiners.

What happens next

Once the consultation closes for comments on 8 March, the relevant government department - the Department for Communities and Local Government in this case - will analyse the comments and decide whether to scrap the regulations, keep them, improve them or transfer them to another department.  The department then has to justify its proposals to a Cabinet Office 'Star Chamber' and announces what it is going to do. 

In the case of the 'retail' theme, this took two months (scrap: 44%, keep: 40%, improve: 16%), in the case of the 'water' theme it took eight (scrap 27.5%, keep 42.5%, improve 30%).  Actually doing the scrapping and improving then happens over the next few months.

Watch this space for what happens to planning regulation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Angus Walker
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