Rules-based planning
The Future of Planning / Part 4
With technology, it’s never really about the technology. It’s about the new ways of organising and doing things that new technology makes possible. The real innovation is as much in the operating system of our organisations as it is in actual computer software.
For example, when the web came along, many people thought it would just be about transposing our existing ways of working onto websites. What actually happened is that, in almost every domain, the web changed the paradigm of how things are done, the order in which they are done, and, sometimes, by whom they are done. If you had told people in 2000 that the most popular encyclopaedia today would be a website instead of a book, most people would have found that easy enough to believe. But no one would have expected it to be Wikipedia, instead of Britannica. The same applies to music streaming, and hotels for example. It certainly applies to planning.
When the UK planning system was designed, its creators had two goals that seem to contradict each other.
On one hand, they wanted the system to be ‘plan-led’. That means it begins with a public vision and strategy for allocating land, which then creates an open framework within which development can happen.
But at the same time, they also wanted to leave room for planners’ discretion and judgement. In an age where it was taken for granted that knowledge could only exist in long documents or professionals’ heads, this meant, in effect, that each and every project had to be assessed against these policies and local plans on a case-by-case basis.
The result is that today the UK has one of the most ‘discretionary’ planning systems in the world, where almost everything is consent-based. That’s another way of saying that we essentially make it up as we go along. A huge amount is open to negotiation and almost nothing is certain.
It is rather like the referee in a game of football saying ‘I’m not going to tell you the rules, you just have to ask for permission each time before you kick the ball’. The result, as you might imagine, is a dysfunctional, expensive and fractious mess: it’s laborious, risky and prohbitively costly — especially to smaller players who don’t have deep pockets.
It also erodes trust. One of the most common criticisms of planning today is that it is very inconsistent. “You can put the same question to two different planners and get two different answers.” “The decision depends on what the planning committee had for breakfast that morning.” “It all depends on who lives next door. If your neighbour is a planning lawyer, you’re stuffed.”
We need to take a balanced view of this. One of the original goals of the planning system was to leave scope for judgement, to deal with special cases. But the reality is that most projects are not special cases. In planning, 80/20 rules are everywhere. Most projects fit into fairly common, recurring patterns. Nonetheless they still have to go through the uncertainty of applying for planning permission, a process that can cost hundreds or even thousands of pounds, at the end of which is the risk that your application might be refused.
It’s not just the players who are overburdened — it’s also the referees. Having to assess every single planning application is an impossible workload. It comes with continuous pressure, and sometimes abuse. It’s thankless work, and it’s not what most planners went into that career to do.
The open secret of the planning system today is that most of what planners do is not actually planning. It is ‘development management’ (reactively processing and deciding applications).
Sadly, because so much is open to negotiation on a case-by-case basis, the actual work of planning has become rather devalued – even irrelevant, because everyone knows that what ultimately gets built could be completely different anyway. We have all become accustomed to a strange reality, where ostensibly we have planning policies (such as to create more affordable homes, or meet our climate goals) but then routinely approve schemes that do not align with these objectives.
Planners and policy teams haven’t necessarily helped themselves. If you open up a planning policy or local plan you might expect to find a set of clear rules or objectives, set out in a reasonably standardised structure. But you don’t. Instead you are more likely to find an accumulation of opinion-statements and good intentions, written in such fuzzy, ambiguous and coded language that they sometimes lose all meaning.
It might include phrases like ‘Impact on neighbourhood visual amenity must be considered’ or ‘Public spaces must be accessible to those with disability needs whilst recognising that one size may not fit all’. These blurry statements give no clear impression of what good or bad might look like.
To try to bridge this void, planning consultants and architects have learnt to parrot this language back in long, expensive reports, repeating the terms like esoteric mood music in the hope that planners and councillors will be lulled into approval.
In truth, many planning policies broadly translate as “it depends” or “I’ll know it when I see it.”
The tragedy of this reactive approach to planning is that, quite aside from all the work involved, it needlessly sets up an adversarial conflict.
For most people, the only time you’re likely engage with the planning system is when you’ve found a piece of paper tied to a lamppost near your home notifying you of a new planning application nearby. It’s the bureaucratic equivalent of waking up to find a horse’s head in your bed.
At that point, the only mode of engagement is to object to the specific development that is being proposed, in the hope of stopping it. And by that time, it’s too late. The applicant can’t afford to change the project much, because they’ve already bought the land, worked out their budget, and sunk thousands of pounds into the project. The stakes are high, and so are the adrenaline and cortisol levels. At this point there are only two outcomes: win or lose.
The same dynamic applies to whole communities. Most of what most people experience of the planning system is fighting reactively against highly-developed development proposals that they don’t want, not proposing development that they do.
So how do we change this?
It’s actually pretty simple. We need to put planning back the right way around.
If you were to ask someone who has never encountered the planning system before how they would expect it to work, they would probably say something like this: we should have a public debate about the places that we want, then we should plan them out and set rules. Then we should just allow people to just get on with it.
And they’d be right. That is how it should work.
As housing expert Toby Lloyd put it recently, “we actually need a planning system that proactively designs the places of the future. Which incidentally is what most people think it does… most people imagine that if you give them a ‘local plan’ they would look for the map. But half of them don’t even have a map, it’s just lots of words.”
For sure, if you wanted to do something that’s outside the rules for your neighbourhood, you’d have to apply, but for most projects, there’d be no need to do that. That completely de-risks the process, makes it almost unbelievably fast and simple, but without compromising on outcomes. In fact, the opposite.
It would also level the playing field, allowing self-builders, co-housing groups, community organisations and small businesses to play on equal terms.
This rules-based approach is, in fact, much closer to how planning does work already in many other countries. It’s one of the reasons why, in many mainland European countries, 50% or more of homes are self-built, as opposed to around 7% in the UK.
But even in the UK, most of the legal tools we need to do it already exist.
One of the most popular parts of the planning system is the ‘General Permitted Development Order’ rules. These determine changes you can make without planning permission. Planning authorities can create something similar called a Local Development Order (LDO) or Neighbourhood Development Order (NDO), which grants permission for development within a predefined set of rules. Or, if they want to be more timid, they can just publish a clear design code. People still have to apply for planning consent, but they can do so with near certainty of success.
The Office for Place has been working with pathfinder local authorities to pioneer the use of design codes. A couple of those councils are exploring then using Plan✕ to make these design codes easier to use. For example, one has created design code for a large estate of interwar homes, to make it simpler for families to improve and retrofit them. Users will be able to check their proposals against the design code before they submit, giving them certainty.
Planning rules don’t just have to be about size and appearance (‘form-based codes’). They can cover any planning matter: use, materials, tenure, or performance, for example energy, carbon, water-management or the provision of trees.
The same principle applies to policies and local plans. One of my favourite examples of a rules-based planning policy (because it’s to do with preventative health) is a rule used by the Mayor of London. Instead of publishing a fuzzy policy that might read something like ‘health implications of development near schools must be considered’, there is a clear rule that you cannot set up a fast-food outlet within 400m of a school. This rule is now also being adopted by other authorities across the country.
Another immediate, quick-win use of rules-based planning is around statutory consultations. Today, there are a list of organisations (known as ‘statutory consultees’) who have to be invited to comment on certain types of planning application. This obviously creates a huge amount of work, especially for consultees themselves. When you speak to people within those organisations, most would be perfectly happy to write a series of nuanced ‘if this then that’ rules (in effect, ‘pre-consulting’) for many common, repetitive project types. So they would only need to be contacted in the case of more unusual or major proposals.
It all seems like common sense. So why doesn’t planning already work like this? What are the arguments against it?
One reason some people might feel uncomfortable about this idea is that we wouldn’t want to sacrifice planners’ ability to bring nuanced judgement and local context to planning decisions. If you’re a planner reading this, you might be thinking ‘Wait a minute, isn’t this just the zoning system, as used in Canada and the U.S.?’ One of the arguments against that system is its reductiveness and lack of nuance — its tendency to produce one-size-fits-all, monocultural neighbourhoods, rather than mixed-neighbourhoods that respond to the particular character of an area.
This is where digital tools can help. In a world of documents, planning rules necessarily have to be quite general, otherwise documents would become unmanageably long and difficult to decipher. But in a world of ‘rules-as-code’ on the web, we can create rules that are an order of magnitude more nuanced, and more localised, and they will still be easier to navigate than the fuzzy policies of today. This is the quid pro quo offer for planners:
If you want to make planning simpler and get better outcomes, you have to set clear rules. But those rules can be as complex and nuanced as you like. You can add as many ‘if this then that’ statements as you need to make sure of the right outcome in all cases.
In other words, we can have the best of both worlds: more nuanced, more localised rules that are that are simpler to use.
The rules also don’t have to be black and white. For example, Plan✕ uses a ‘traffic light’ system of green, red and amber, allowing planners to reserve judgement in special cases. So far we have found that, once planning teams realise this, they feel quite comfortable moving from “It depends” to “It depends on A and B and C”, and creating rules that cover most common projects.
Another concern people may have is that this might somehow weaken democracy — removing those important powers of political discretion. But in fact the reverse is true. As Nicholas Boys Smith (founder of Create Streets, and director of the Office for Place) puts it, it allows us to “move the democracy upstream”. Instead of putting democracy and discretion downstream of the market where it has to react to the market, instead we can put the democracy first, so planners and the community have genuine power to change the outcomes ahead of time.
Planners still have discretion, but most of the judgements and interpretations they would today be making on a case-by-case basis they can instead encode into rules.
Moving the democracy upstream of the market isn’t just good for democracy, it’s good for the market too. Businesses and their customers need stability and predictability in order to weigh-up their options and to borrow money — especially small businesses, self-builders and community organisations. Creating a clear rules-based framework upfront is a way to eliminate a huge source of uncertainty and risk, and therefore cost. It reduces dependence on consultants and risk-intermediaries. It allows the market to develop new products and services.
But there is one more big reason why more rules-based planning isn’t already happening in the UK: cost.
In the current, consent-based system, underfunded planning authorities have had to push more and more of the costs of doing design and producing evidence (assessing what impact development would have) onto applicants. This has the secondary effect of eroding public trust, because the evidence is (sometimes rightly) seen as partisan, because the experts work for the applicants, not for the public.
Bringing more of that work back up-front means bringing more work back into Local Planning Authorities, and many councils simply don’t have the financial resources or the capacity to do it (growing this design capacity is the mission behind the work of Public Practice).
Private developers can afford to do this work because they are essentially borrowing against the future uplift in the land value. But planning authorities can’t do that. The part of that land uplift that goes to local authorities (Section 106 and Community Infrastructure Levy) is currently not allowed to be spent on planning work. The only way for a council today to do this would be to set up a wholly-owned development company (as some have done) which then takes on this planning work, or helps fund the planning department to do it. But that only works on large sites.
One of the ideas floated in the 2020 ‘Planning for the future’ white paper (but later dropped) was the idea of allowing planning authorities to use a limited portion of this uplift cash to resource their planning departments, instead of relying entirely on planning fees and consultation fees. Its a very sensible, fair idea, that could ensure planning departments are properly funded (and incentivised) to do rule-based planning without costing the taxpayer a penny.
Whether it’s by this or other means, the point is that if we want to move towards a more rules-based approach to planning, planning authorities will need to be sufficiently well-resourced to do more plan-making, and we will need to build tools that make it easier to write and publish good, clear policies, plans and design codes.
If it can be done, the value it will unlock in the wider economy will dwarf the upfront cost of additional planners.
Shifting from a consent-based to a rules-based planning system is a way to solve the original conundrum that the creators of the planning system were grappling with. We can have a system that is both simple, fast and de-risked, without compromising on nuance and local character. In fact I would predict that it could generate much more variety, and more characterful, mixed neighbourhoods than the cookie-cutter dormitory estates we too-often end up with today.
In the process we can also rebuild trust — by putting democracy back in the driving seat. It’s a way to revive that original vision of a plan-led system. A system where planners spend more time… planning.
This is Part 3 of a series. The first part is here.
I’ll add links to the subsequent parts as I post them over the course of this week.
