Nightmare On Marsham Street: What Now?

So much for fixing the broken housing market. Those poor DCLG civil servants. Here we are again in wholly uncertain territory – anathema to planning, anathema to business. In the aftermath of the Brexit vote I wrote a blog post on how we can possibly give any useful advice in these sorts of situations, How To Predict; How To Advise.
This blog post simply sets out various questions, to which I do not know the answer. 
First, how long will May stay as PM? Will we see a Conservative leadership challenge, will we have an early election (again)?
Secondly, will May lead a minority government, dependent vote by vote, issue by issue on the DUP and/or common positions with other parties, or will this be a true coalition government with a formal coalition agreement? In either case, what terms will the DUP extract? This will certainly be an early test for the PM of her negotiating skills, ahead of the start of Brexit talks that start on 19 June (the same day as the Queen’s Speech – the future comes at you fast doesn’t it…) and indeed ahead of the resumption of Parliament on 13 June. Will she be able to bring her own party to the table with the DUP given the DUP’s stance on LGBT, abortion and climate change (on the last of which, see this 9 June 2017 Greenpeace summary)? Will an alliance with the DUP be consistent with the Northern Ireland power-sharing arrangements within the Good Friday Agreement? Are they a competent partner, given for instance the “cash for ash” debacle that has cost all of us dear (see i-news 17 May 2017 )?
Thirdly, specifically in relation to planning matters in England, does a minority government matter, given a Conservative majority within England itself? After all, when it comes to planning and other devolved matters, the EVEL (English Votes For English Laws) amendments made in 2015 to Parliamentary standing orders come into play. As with matters of Northern Irish politics, the detailed operation of EVEL is far from my special subject, but basically if provision in legislative business is certified by the Speaker as only affecting England, or England and Wales, and within devolved legislative competence, only the members of Parliament within the relevant administrations have a vote. This is all explained in more detail in a House of Commons Library research paper  (2 December 2015). In fact the Housing and Planning Bill was the first to have its provisions certified, on 28 October 2015, under the new standing orders. Short of legislation, many other planning functions of the Secretary of State can of course be conducted without the need for a vote in Parliament, although necessarily only by proceeding with extreme caution given the political vulnerability. Two other thoughts on this issue: (1) the standing orders can be changed by a simple majority – a minority government will be vulnerable to that, so for how long will EVEL survive? and (2) EVEL of course means that DUP votes count for nothing in relation to English and Welsh devolved matters.  
Fourthly, who will the ministerial team be? Former housing and planning minister Gavin Barwell of course lost his seat and it will be tough to replace him with someone with an equivalent grasp of the detail (although it does seem like yesterday that I wrote my 17 July 2016 blog post when his appointment was first announced). Whilst Secretary of State Sajid Javid retained his seat, he has long been rumoured as out of favour with the PM (eg Conservative Home piece  8 February 2017) but, with the new mantra of ‘stability’, will he stay in position?
Fifthly, what of the current policy agenda, with so many pieces of unfinished business? I set out where things were left in my 21.4.17 blog post, Parliament, Purdah, Planning. Is it realistic to expect a new incumbent to make quick progress, simply accepting the previous agenda and direction? Surely not. Save for the most technical, least politically sensitive matters, a delay surely is to be expected. Whether that matters in most areas is another question – on the one hand we have all been using that ‘stability’ mantra for a long time but on the other hand, if the repeated Conservative manifesto commitment on housing numbers is to be achieved, we can’t carry on as we are. As Einstein may or may not have said, doing the same thing over and over again and expecting different results = insanity. 
Sixthly, is there the political capacity at the moment for more far-reaching reforms? Surely, faced the unique challenge of the Article 50 negotiations (with their fixed March 2019 deadline) and a precarious hold on power, the prospects of radical thinking in any other area, including planning and infrastructure, have significantly receded. In practice, how much time will the cabinet have for CIL reform let alone more radical land value capture/compulsory purchase compensation law changes; or for HS2 phase 2, let alone Crossail 2?
Nightmarish? Possibly. Fascinating? Absolutely!!
Simon Ricketts 10.6.17
Personal views, et cetera

Devo West Mids

Connecting the dots as to the Government’s policy announcements is never easy for all of us on the outside, trying to work out what they may turn out to mean in practice. 
An evidence session today with the West Midlands Land Commission was a good excuse for me to get to grips, belatedly, with what changes devolution may bring to planning and compulsory purchase in the West Midlands. 


Background

The West Midlands Combined Authority  was formally established on 16 June 2016 by virtue of the West Midlands Combined Authority Order 2016 . It comprises 17 local authorities and three LEPs and follows a devolution agreement dated 17 November 2015  .

The WMCA is to be chaired by a directly elected Mayor. The election is due to take place on 4 May 2017. Andy Street is to step down from his job as John Lewis chief executive to stand, as the Conservative candidate. Sion Simon is the Labour candidate. 
The devolution agreement includes the following statements in relation to planning:
“Planning powers will be conferred on the Mayor, to drive housing delivery and improvements in housing stock, and give the same competencies as the HCA.

“The Combined Authority and its constituent authorities will support an ambitious target for the increase in new homes, and will report annually on progress against this target. To ensure delivery of this commitment, the Shadow Board of the Combined Authority and the government agree that: 


    * Existing Local Authority functions, which include compulsory purchase powers, will be conferred concurrently on the Combined Authority to be exercised by the Mayor. These powers, which provide the same competencies as the Home and Community Agency, will enable the Combined Authority to deliver its housing and economic growth strategies. The government will bring forward further proposals for consultation in the New Year and will, as part of that consultation, discuss how they can be applied to support housing, regeneration and growth. 


    * The Homes and Communities Agency and the Combined Authority will work together to develop a joint approach to strategic plans for housing and growth proposals for the area. 


    * The government will work with the Combined Authority to support the West Midlands Land Commission. The West Midlands Land Commission will ensure there is a sufficient, balanced supply of readily available sites for commercial and residential development to meet the demands of a growing West Midlands economy. It will create a comprehensive database of available public and private sector land, identify barriers to its disposal/development, and develop solutions to address those barriers to help the West Midlands meet its goal to deliver a significant number of additional new homes over the next 10 years, and to unlock more land for employment use. The Combined Authority will also be able to use their proposed Land Remediation Fund to support bringing brownfield sites back into use for employment and housing provision”. 

WMCA’s ambitious objectives are set out in its Strategic Economic Plan  and include a “higher level of housebuilding than is currently provided for in development plans”. 
A Scheme for the Mayoral West Midlands Combined Authority was published on 4 July 2016 for a consultation period which closed on 21 August 2016. It seeks equivalent powers to establish mayoral development corporations, with the agreement of the relevant LPAs, as the London Mayor currently has. It also seeks, for its area, the same planning and compulsory purchase powers as the Homes and Communities Agency. 
The West Midlands Land Commission has also been set up, with terms of reference  to consider “what measures could be initiated and undertaken to ensure an improved supply of developable land from both a strategic and regional perspective”. 
WMCA has begun to work on specific strategic sites. It published on 19 October 2016 its Greater Ickneild and Smethwick housing growth prospectus. An application for housing zone status is to be made. (Although – is it just me? – the Government’s housing zones announcement 5 January 2016  is very vague as to the implications of HZ status other than the potential for an element of Government funding). 
Implications
What sort of planning powers WMCA will have to encourage, cajole and coordinate the work of its member authorities? Increased housing numbers will not come without real interventions and a new approach by all involved – in which I very much include the Government. After all:
– the Birmingham City Plan is still on hold following the previous Secretary of State’s 26 May 2016 holding direction as a result of concerns expressed by Sutton Coldfield MP Andrew Mitchell as to the proposed release from the green belt of land for the development of 6,000 homes

– we are still waiting for numerous measures to be fleshed out pursuant to the Housing and Planning Act 2016, including permission in principle and also the enticing mystery that is the concept in section 154 of “planning freedoms schemes”

– there is still no sign of the amended NPPF with its stronger policy support for development on brownfield sites. 

Will the WMCA be given CPO powers equivalent to the very wide powers that the HCA has by virtue of section 9 of the Housing and Regeneration Act 2008, or will it at least have a working arrangement with the HCA whereby the HCA will use its powers at the authority’s request? The section 9 power is much wider than LPAs’ normal “planning purposes” CPO power in section 226 of the Town and Country Planning Act 1990 as it can be used to achieve the HCA’s broader objectives as set out in section 2 of the 2008 Act:
“(a) to improve the supply and quality of housing in England, 

(b) to secure the regeneration or development of land or infrastructure in England, 


(c)  to support in other ways the creation, regeneration or development of communities in England or their continued well-being, and 


(d)  to contribute to the achievement of sustainable development and good design in England”

The use, or threat of use, of section 9 as against suitable sites which are not brought forward for development by their owners, might well be effective – particularly when taken with acquiring authorities’ possibly improved position against owners’ “no scheme world” compensation arguments by virtue of clause 22 of the Neighbourhood Planning Bill. 
Interesting also to see the London-style “Mayoral development corporations” proposal in the July Scheme document. But what about possibly developing other London-style structures, including the referral to and potential call-in by the Mayor of applications for strategic schemes?
So many unfinished legislative changes and policy announcements. As E. M. Forster (who died in Coventry – sole tenuous thematic link to blog) might have said: 
only connect
Simon Ricketts 24.10.16
Personal views, et cetera