Community Right to Build schemes will face legal challenges, say planning officers

The government’s proposal to sit the Community Right to Build outside the planning mainstream puts the CRtB body “at considerable risk from poorly considered planning constraints, unforeseen planning impacts, flawed procedure, and human rights, and possible legal challenges”, the Planning Officers Society has warned.

The CRtB scheme was announced by Housing Minister Grant Shapps in July. The government believes that it will allow local people and communities to decide where to create new homes, shops and facilities where they think they are needed, “not where local councils and central government think they should be”.

Under the proposals a community organisation would be able to go ahead and build without the need for an application for planning permission where there is overwhelming community support for the development and minimum criteria are met.

The POS insisted it welcomed “in principle” the government’s proposals to enable communities to address the serious shortfall in housing in rural areas. However it argued that a Community Right to Plan would be a more attractive alternative approach and could be part of the proposed neighbourhood planning initiative.

The Society said the Community Right to Plan approach would enable the community to call upon the local planning authority to closely support their work, bear the professional risks associated with it, and procure any additional specialist work required from consultants.

Malcolm Sharp, Junior Vice-President of the POS and principal author of its response, said: "The Community Right to Plan facility would need to be a strong partnership, more than would necessarily emerge from a simple ‘duty to co‐operate'. It would have the advantage of generating, in most cases, some ownership on the part of the LPA, which would make it more likely they will give the proposal accreditation once the plans are complete."

Sharp added: "There are, however, other arguably more significant barriers to development in rural communities than the planning process – for example current government policy for development in the countryside and green belt, owners holding onto sites in the hope their value may increase, and local opposition."

The POS said a simpler way forward would be to relax government policy in respect of CRtB development in the countryside and green belt, and to help facilitate the funding of CRtB schemes. “These measures would enable the mainstream planning process to deliver what’s wanted, which in combination with a Community Right to Plan, would remove much of the risk.”

The Society added that existing mechanisms could be adapted as well, with more imaginative use of exception policy/site, development orders and departure procedures.

In its submission the POS also said:

• The current cap on growth (not more than 10% over ten years) “would not be likely to provide sufficient population to make much of a difference to most small rural schools and shops”
• The 80-90% community approval rating would be hard to achieve in most cases. “It is also a radically different approach from that of a planning committee in determining a planning application, which looks at the relevance of consultation responses, rather than the quantity,” the POS said, pointing out that the 10-20% of objectors to a CRtB proposal may live in the properties most adversely affected. The human rights implications should be examined carefully, it said
• The difficulty of achieving an 80/90% approval rating may depend on how “community” is defined for the purpose of the vote. The boundary of the referendum could become a big issue for the community
• The bureaucracy, cost and timing surrounding referendums could easily prove more of a barrier than current processes
• Communities may be vulnerable to landowner and developer collaboration that is not in their best interests
• Communities will need to produce very robust plans in order to be safe against challenge and technical or legal failure. “The safest and most economical model is that they work closely with their local planning authority,” the POS suggested
• If the Community Right to Build is to continue, it should be extensively piloted, with a cap of, say, 50 homes on a given development
• Thought will need to be given to monitoring and enforcement of what actually is built and relevant conditions/constraints.

A copy of the POS submission can be downloaded here.