4 Possible Improvements To The Planning System Using Black Box Thinking

If you’ve read Matthew Syed’s Black Box Thinking  , which you probably have, you’ll know that the theme is that people, teams and systems perform at their best when they learn continuously from mistakes and failures. The more complex the system, the more important it is that there is an open loop rather than closed loop culture. 

How to apply this to the planning system?
1. The Government should clarify the NPPF whenever necessary

I get it that consistency in overall policy direction is important. But it is scandalous that the ambiguities of this one document have caused and continue to cause such scope for disputes. Landmark Chambers keep a very useful digest of court rulings in relation to the interpretation of the NPPF. Just look at the hundreds of cases listed and reflect on the time, cost and delay that each has caused to public sector and private sector alike. 

Three examples, each of which could be immediately resolved with the insertion of a classificatory footnote:

– I am obviously pleased to be one of numerous lawyers acting in the Hopkins Homes v Suffolk Coastal; Cheshire East v Secretary of State and Richborough Estates litigation, to be heard in the Supreme Court in February 2017. But why is this hearing even necessary? The case turns upon whether the Court of Appeal was correct when it ruled on 17 March 2016 that when the Secretary of State wrote in para 49 of the NPPF “relevant policies for the supply of housing” this is to be properly interpreted as “relevant policies affecting the supply of housing”.

– Heading towards the Court of Appeal is Dartford Borough Council v Secretary of State  (Deputy High Court Judge Charles George QC, 21 January 2016), the issue being whether the court was right to conclude, from the inclusion of “residential gardens” in “built up areas” from the definition of “previously developed land” or “brownfield land” within the NPPF, that residential gardens in outside built up areas are not to be regarded as previously developed land. 

– Similarly currently heading to the Court of Appeal is R (DLA Delivery) v Lewes District Council  (Foskett J, 31 July 2015), on the question whether a neighbourhood plan can precede an up to date local plan. 

These are narrow points that do not require any wholesale re-writing of the NPPF. 

It is ironic that the gestation of the NPPF lies in the conservative party’s 2010 Open Source Planning document. This is far from open source planning.

Isn’t it also odd in the extreme for so many lawyers and planners to be attempting to make sense of what the NPPF really means, when this document is no Oracle of Delphi: it is a practical plan written on behalf of Government to express its desired political direction and the current Secretary of State no doubt has a view which can be simply expressed by way of footnoting the document!
2. Learn from experience



Legislative changes commonly are brought about with little by way of initial experimentation in pilot areas – save where the proposal is so outlandish (such as the idea of alternative providers of planning application processing services) that one suspects the pilot has been offered as a political compromise or to enable tactical retreat. 
The outcomes of pilots need to be rigorously reviewed, without preconception – and the pilot authorities need to be selected randomly, rather than those who volunteer. Would we have got into our current CIL mess with this approach? The more complex the system, the greater the inevitability of unanticipated outcomes. 
3. A more transparent system



I would hope that the Government’s chief planner Steve Quartermain receives on a say monthly basis a summary of:
– all Planning Court rulings which have found against the government

– all PINS reports where interpretation of government guidance, or application of procedure, has led to material uncertainty or problems

together with focused recommendations as to the corrections to policy or legislation that might as a result be made to stop that uncertainty or problem arising again. 

Does he?
Where problems are identified, they need to be addressed far more quickly. The current delay in relation to the CIL working party’s report is inexcusable. Furthermore, when changes are made they should always be made by way of consolidation of previous legislation. Anyone without a paid subscription to Westlaw or similar is at a complete loss in relation to the various iterations of the CIL Regulations. 
Equivalently, on a local basis why don’t LPAs have to consider, openly, what changes in policy or approach may be needed as a result of adverse appeal outcomes in their district or borough? Do members even regularly learn, on an impartial basis, of the reasons why appeals have been lost?
More broadly, there is little systematic transparency so that all can learn from each other’s experiences. Whilst individual reports and decisions can be found, one looks long and hard for any national list of inspectors’ reports on plans (including, as importantly, notes of preliminary meetings and correspondence with the LPA raising issues) and, for appeal decisions falling back on Compass (a premium rate service!), the planning press and word of mouth. How can this help drive understanding, change or consistency?
4. Allow schemes to improve during the application and appeal process



We are moving increasingly to a system where applicants are encouraged to have their schemes fully designed and “oven ready” at the outset of the formal application process, with amendments, particularly during the appeal stage, frowned upon. The PINS planning appeals procedural guide  says that amendments should only be made “exceptionally” at the appeal stage:
“If an appeal is made the appeal process should not be used to evolve a scheme and it is important that what is considered by the Inspector is essentially what was considered by the local planning authority, and on which interested people’s views were sought.”

But hang on – as long as interested people’s views are indeed sought, isn’t it a good thing if a scheme evolves, for the better, as a result of prolonged exposure to opposing views or further information that comes to light? Of course it may be administratively inconvenient but won’t it often lead to a better outcome? Yes, that may lead to delays during the application or appeal stage but that should be something for the applicant or appellant to take on board.

End of polemic. It was a good book anyway. 

Simon Ricketts

Personal views, et cetera

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