Hannah Hickman and Martin Boddy

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Between a Rock and a Hard Place the challenging
role of the planning inspectorate in the new
English national planning system

• Hannah Hickman and Martin Boddy

2
Presentation Structure

• Research proposition why look at the planning
  inspectorate
• Planning inspectorate role and purpose
• Planning reform and PINS
• Recent planning cases as examples of challenge
• Views from those close to the system
• Initial conclusions

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Traditional role of PINS in England

• (1) reports and recommendations to enable the SoS
  to make decisions on national infrastructure
  projects
• (2) making decisions on planning and related
  appeals, applications and orders, referring
  recommendations to the Secretary of State or
  Welsh Minister where appropriate
• (3) the examination of Local Plans in England,
  Local Development Plans in Wales and Community
  Infrastructure Levy schedules

4
PINS constitution and Status

• Executive Agency of Department for Communities
  and Local Government
• Accountable to Ministers and ultimately
  Parliament
• Key part of the machinery of the planning
  system (Cullingworth and Nadin, 2006)
• Values of fairness, openness and impartiality
• Evidence-based decision-making - quasi-judicial
  function
• Staff of 730, plus contractors, 2013/14
  expenditure of 37m

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Abolition of RSS and the NPPF

• Abolition of strategic planning, top-down housing
  targets
• Local Plans now the keystone (CLG 2012) of
  formal planning framework
• Tensions at heart of NPPF between localism
  (powers and freedoms to town halls) and
  presumption in favour of sustainable
  development
• Local authorities required to
• demonstrate five-year land supply
• meet the requirements of the duty to cooperate

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Impact on PINS work

• Core work remains the same - recommendation on
  soundness of Plans and on appeals against
  refusal/approval
• But increase focus on
• o adequacy of provision for five year land
  supply
• o evidence relating to the Duty to Cooperate
• And in the context of
• o fundamental shifts in structure of planning
  system
• o (shifting) context of local plan policy,
  material conditions, and planning guidance

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Evidence of challenge to PINS work

• Decisions are increasingly (?) subject to legal
  challenge and recourse to legal processes
• Wave of vocal criticism of PINS in the media and
  by politicians
• Possible shift in relationship between PINS and
  SoS
• Specific expression of more general
  politicisation of civil service and anxiety
  around accountability
• Yet one of the very few parts of Government to
  have grown in size and responsibility since 2010

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Recent examples (1) Solihull Inspector
challenged by Courts

• Courts overturned local plan following appeal
  from developers
• Council had placed two sites in greenbelt and
  used pre-NPPF evidence on housing land supply
  from the RSS to justify this
• "I do not consider that the inspector's approach
  to the policy requirements of the NPPF in
  relation to housing provision was correct or
  lawful. As a result, he failed to comply with the
  relevant procedural requirements and the local
  plan with modifications, which he endorsed and
  the council adopted, is not sound because it is
  not based on a strategy which seeks to meet
  objectively assessed development requirements nor
  is it consistent with the NPPF." Mr Justice
  Hickinbottom
• Yet Grand Union Investments v Dacorum Borough
  Council is another story pragmatism by the
  Inspector endorsed by Lord Justice Lindblom.

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Recent examples (2) The green belt housing
conundrum

• Tewkesbury SoS approves 1000 homes - no other
  credible way of reducing shortfall, upheld by
  the courts despite challenge on the grounds of
  localism.
• But
• Coventry (190 homes in green belt) Inspector
  argued in context of severe housing shortfall
  that development very clearly outweighs the
  harm. SoS disagreed.
• Saltford, BANES (90 homes) Inspector
  recommended approval on the basis of need and
  minimal impact. SoS disagreed harm by reason of
  inappropriateness not outweighed by other
  considerations despite accepting little prospect
  of BANES identifying five year supply.
• Thundersley, Essex (165 homes) Inspector
  recommended approval of scheme. SoS disagreed and
  upheld by Courts. "Exceptionally low" housing
  land supply of 0.7 years did not outweigh
  presumption against green belt development.
• Bucks, Pinewood Studios. Granted despite serious
  harm to the green belt needing to be accorded
  weight.

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Recent example (3) Cheshire Inspector
challenged by SoS on localism

• Secretary of State disagrees with his inspector
  over localism
• Inspector gives weight to emerging neighbourhood
  plan as a basis for rejecting a housing scheme on
  high grade agricultural land.
• Secretary of State argues that as no NP plan yet
  published, five year supply arguments should
  prevail.
• In reaching this decision the secretary of state
  acknowledged that in a case such as this there is
  an inescapable tension between the need for
  housing development to be plan-led at local level
  and the broader needs to promptly deliver
  sufficient new homes.
• I do not suppose that it would be the first time
  that more has been claimed for a legislative
  reform than has actually been delivered (Mr
  Justice Males Tewkesbury Judgement)

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Criticism of PINS - increased suspicion from all
sides?

• The Planning Inspectorate is prioritising
  development over the views of local people, and
  undermining localism (LGIU 2013)
• Local / National Press Headlines - Why is PINS
  doing this? Harrogate goes to war over planning
  inspectors housing ruling, We will complain to
  Government Scheme approved by the Planning
  Inspectorate
• Communities X is quite right to criticise
  the Planning Inspectorate, which is riding
  roughshod over localism either because of
  instructions from the Government or because of
  its own institutional bias. (Daily Telegraph
  letters)
• MPs The Sir Mike Pitt letter and proposals
  for PINS abolition
• Development sector largely silent on PINS until
  it comes to the courts.

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Views from those close to the system (1)

• Its utterly impossible to be an inspector
  currently Decisions on policy are being made
  in PINS
• there is an atmosphere of challenge in PINS, a
  greater level of ministerial interference, nudge
  is ok, public interference is not
• Conflict is not between PINS and SoS, it is
  between the SoS and the SoS. Once a policy has
  been written down, Inspectors will stick to it,
  PINS is not a policy making organisation
• There is democratic illiteracy when it comes to
  PINS Politicians dont understand planning and
  they dont understand inspectors
• If things are difficult it makes sense to give
  them to an arms-length agency- do it at
  arms-length and blame inspectors
• Planning Inspectors are on the one hand
  independent, and on the other hand not

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Views from those close to the system (2)

• People are up in arms at the planning
  inspectorate over undersupply. Yet
• Sometimes it feels like localism and
  neighbourhood plans v the inspectorate. Localism
  means that Local Authorities will question PINS
  interventions.
• It's a myth that top-down targets have been
  abolished it's just that top-down targets are
  now being imposed by the Inspectorate in a random
  way without any kind of strategic framework
  within which they can be sensibly accommodated.
• LAs say why is PINS doing this? Actually,
  its LA unwillingness to put plans in place with
  impunity
• Many inspectors would like to be more pragmatic,
  but developers will challenge and they are clued
  up to the holes in the NPPF

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Views from those close to the system (2)- Its
not all bad surely?

• The Inspectorate is one of the best bits of the
  system
• Inspectors play by the rules, providing honesty.
  They are the glue in the system
• Planning inspectors are trying their best to
  keep the show on the road
• What reforms have done is expose PINS as the
  only mechanism left to deliver reforms for
  government
• PINS is the only safeguard in the system
• Hats off to Inspectors for helping local
  authorities where they cant make their own
  decisions

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Some initial conclusions

• PINS left attempting to manage tensions between
  contradictory policy drivers for local
  determination and pressures for economic growth -
  putting inspectors in the limelight.
• De facto strategic planning function - mediating
  between local and central levels
• Perceived at least to be partly delivering
  top-down strategic steer, undermining
  impartiality
• Challenge of the quasi-judicial nature of PINS
• Impartial objective actors or a politicised
  part of the civil service

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And finally

• The next 12 24 months are looking very
  turbulent, with many changes ahead, including
  growth in the economy, tighter financial
  constraints, increased ministerial interest in
  what PINS does and potentially a new government.
  Localism may also come back on the agenda again.
• (PINS Board Minutes, April 2014)

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Contact details

• Hannah Hickman
• hannah_at_hannahhickman.co.uk
• Visiting Research Fellow at UWE and
• Hannah Hickman Consulting