The planning system

After reading the previous parts of this kit, you are almost ready for the most important lesson of all: planning battles. That will come in the next part but, before you can understand how to do battle in the planning arena, you need to understand how the system works. What are the game rules? Who holds the power? How can you influence the outcome of planning decisions? How can you ensure that local government steps up to the plate when it comes to defending your precious local against attack? We’ve said many times in these pages that only the planning system can save your beloved community pub. Of course you need customers to support it, to buy beer, to patronise it as often as they can afford to; we assume this is a given. We’ve also reported how even the most profitable and popular pubs can fall victim to developer greed. Given the level of London property prices over the last few years and the record low interest rates, it is always feasible to buy out a tenant’s remaining years on a pub lease, and this is exactly what offshore investors have done to great effect, exploiting the tie to incentivise impoverished tenants yet further, and to encourage them to pack up and leave voluntarily.

This is the crux of our repeated point about planning. You cannot rely on ownership to safeguard the heritage and culture embodied in a pub because private landowners and their tenants have a legal right to buy and sell property according to the market price. This brings us to the whole purpose of the planning system, and why it was formalised back in 1947. Without a national planning system, comprising statute and policy, landowners would be free to develop without restraint or hindrance. This would lead to utter chaos in such a densely populated country. To this end, it is the planning system which pub campaigners must thoroughly understand, and use to their advantage, and to the greater good and harmony of their communities. Some politicians thankfully recognise this, but we still have our work cut out. There is healthy demand for well managed pubs and a tremendous resurgence in interest about, and enthusiasm for, good quality beer. But these things alone will not ensure a good supply of community locals in every neighbourhood. Nor will they ensure that historic pubs, many of them handsome buildings from the Georgian and Victorian eras, will survive as pubs. When unrestrained and driven purely by a desire to maximise profit, market forces would naturally turn all existing land over to residential use, or perhaps high margin retail. That is, if the planning system lets them get away with it.

Planning context as a deterrent to speculators Developers and free market libertarians would be horrified at my last sentence. They see development as a positive thing: as wealth creation, fulfilling an insatiable need for ‘much needed housing’. They use phrases like ‘regeneration’ and ‘urban renewal’ and see themselves as the architects of a better society driven purely by market demand and empowering land owners and those with the means to acquire valuable land. In their world, they are not so much ‘getting away with it’ but doing society a favour by replacing clapped out old boozers, with dirty lines, poor cellars and an antisocial clientele, with bright modern apartments, ideal for overseas investors to charge unaffordable rents to hardworking Londoners. As we’ve said before many times, forewarned is forearmed. Know who owns your pub. Know who runs it. What is the arrangement between the parties? Never assume anything is secure or safe. A pre-emptive ACV is free and easy and we have described numerous times how to do it. Get in touch with your local CAMRA branch chairman for assistance and guidance (contact details at the front of this magazine). In this context, ACV status is simply a marker in order to inform the planning system. We are not suggesting that community groups will never afford a London boozer; after all, there are some wealthy communities in London! But so far, from 150 ACV pubs in our patch, just two have been bought out by communities: the Ivy House in 2012 and the Antwerp Arms in 2015. ACV status will remove permitted development rights for demolition and change of use, and it is a material planning consideration. These two features go absolutely hand in hand. CAMRA has called on successive governments to close the planning loophole that allows pubs to be converted to shops, cafes and offices, or demolished without permission. Why is planning permission so significant? It is because it really is the ONLY thing that can save a pub, when its owner is hell-bent on some alternative use.
ACV nomination and registration is part of our strategy to protect and sustain pub use on historic sites in the capital. It is no silver bullet, but an ACV registered pub, with a strong local planning policy, perhaps also with some heritage value, will not be as attractive to a developer as perhaps an unremarkable and apparently unloved pub. A well patronised pub, with ACV status, should indicate to any speculative developer that they will not have an easy ride. London Boroughs with a good track record on pub protection, like Waltham Forest and Camden, and more recently Wandsworth, have established a reputation for responsible management of their pub stock. However this does not, sadly, stop developers having a go. When they fail and lose money in the process, this helps us get the message out there, but it would be far better if the planning system across London, and for that matter throughout Britain, sent a strong message that pubs are not up for grabs, except to pub operators. We can but dream.

The essence of modern planning The planning system is underpinned by a legislative framework which has evolved over many years, since planning was first ‘nationalised’ by the post-war Labour government in 1947. The two most important pieces of primary legislation are the Town & Country Planning Act (1990) and the Planning (Listed Buildings & Conservation Areas) Act (1990). These acts of parliament set the rules and legal requirements for the many processes which form the planning system. In the case of heritage assets, additional statutory duties are placed on planning decision makers, over and above the normal process that is largely informed by policy. For most people, planning policy is easier to understand and relate to than the nuances of English law. Planning policy is the written, formalised guidelines along which decision makers must determine planning applications and appeals. There is a hierarchy of planning policy, with a concise national policy which applies throughout England, known as the National Planning Policy Framework (NPPF), dating from 2012, at the top. Below this are regional plans where they exist, such as the London Plan (2011, altered further in 2014). Finally, every Local Planning Authority (LPA) is required to have its own local plans, with policies unique and specific to the requirements of the local area. Local plans are required to be compliant with the broad aims of the NPPF and any applicable regional policy. Quite counter-intuitively, local plans usually carry the most weight, as these are devised and approved by local politicians and their agents, and successive governments have entertained broad ambitions to devolve and decentralise planning decisions. (There are exceptions to this principle, such as significant infrastructure schemes like High Speed 2 or Hinkley Point Nuclear Power Station or the extension and/or augmentation of the runways at Heathrow Airport.)

For the majority of planning applications, local planning authorities will make the decision, in accordance with their local plans, known as a Local Development Framework (LDF). This makes sense as local politicians, at least in theory, should have their finger on the pulse of aspirations and values of local communities and should have the intimate knowledge of the specific planning context in their neighbourhoods. In around 98% of local planning decisions, the planning sub-committee will delegate the decision to professional planners. Such council officers will decide planning applications according to agreed policy and, if there is a particularly controversial scheme or if an application attracts a high number of objections from members of the public, these will be deferred to the planning sub-committee, made up of elected Councillors. The legal powers enshrined in the legislation quoted above give more senior decision makers increasing powers to bypass this local decision making, or to overturn local decisions, in certain circumstances.

Developers have the right to appeal against a refusal to grant consent. These appeals are heard by an Inspector appointed by the Secretary of State. In controversial or high profile schemes, both the Mayor of London (in the GLA area of jurisdiction) and the Secretary of State have the power to ‘call in’ applications, which means they will be determined at a higher level, often over the heads and against the wishes of local politicians. This measure is supposed to be used sparingly and the idea is that schemes in the greater public good or national interest can be allowed, in spite of often well founded local concerns. It is a tool used to defeat NIMBYs (Not In My Back Yard). Recent examples include the Fruit & Wool Exchange in Spitalfields and the Bishopsgate Goods Yard in Shoreditch, both called in by the Mayor of London following refusal of consent by the relevant London Boroughs’ planning sub-committees. In this regard, it is important that we have a Mayor who likes pubs. Sadly the historic Gun on Brushfield Street is now no more, demolished to make way for the Fruit & Wool Exchange development, a necessary if regrettable victim of progress in the Mayor’s eyes, but a much mourned East End boozer to those of us who loved it.

Sustainable development The NPPF was a revolutionary achievement and credit is due to officials in the Department for Communities and Local Government (DCLG) back in 2012 who managed to reduce several thousand disparate pages of national planning policy and guidance into just 59 pages. The NPPF has a presumption in favour of positive sustainable development running through it. This philosophy is intended to filter down to all aspects of local plans. Sustainable development is based on a UN General Assembly Resolution (42/187). It has three dimensions: an economic role, a social role and an environmental role. In effect, any scheme that loosely ticks all three boxes should be allowed by default, unless there are strong reasons for refusal. This can be viewed as a reward for developers having the money and ambition to develop something, and the system’s starting point should be to say “yes” and “thank you very much, please crack on sir”. The NPPF goes on to outline core planning principles, then talks about specific policies for town centres, rural communities, heritage assets and so on.

The most common threat to pubs comes from housing. Half of London’s lost pubs have ended up in residential use. Developers of new housing routinely quote the sustainable development ambitions and take pleasure in highlighting how their clever designs, close to transport links, using sustainable building materials and complementing the existing streetscape, satisfy the criteria of sustainable development. They conveniently omit to mention the social role. That aspect requires the supporting of strong, vibrant and healthy communities. It speaks about provision of local services that satisfy the community’s needs and support health, social and cultural wellbeing. In their core role as community hubs, pubs are therefore an essential part of sustainable development and the NPPF requires their provision and protection and addresses resisting their loss.

The planning balance Planning is a trade-off between competing and opposing policy objectives: an exercise in weighing up the public benefit of a particular proposal and evaluating this against any harm that may be caused by the proposal. There are ambitious targets placed on all London Boroughs to deliver new housing. If a landowner brings forward a proposal that will deliver new housing units, then this complies with policy and ought to be allowed. Yet there are also policies that seek to retain community facilities like pubs. If the housing units will come at the expense of a pub, this is not in accordance with policy, and should be refused. What are the planners to do? What if the proposal seeks to remove ancillary accommodation and perhaps a kitchen and pub garden, yet retain the bar and servery? Does this fulfil both policy objectives and should it therefore be recognised as a good compromise? What if the pub has heritage value on account of a Grade II listing? What if the pub lies within a conservation area and its use as a pub contributes positively to the character of the conservation area? If the pub is to be demolished and replaced with one luxury town house, perhaps with a swimming pool and games room, does the modest gain in housing provision outweigh the harm caused by the loss of the pub? On the other hand, if the pub was demolished and replaced with a substantial scheme involving 50 new affordable flats, would this level of public benefit justify sacrificing the pub?

These are the dilemmas faced by planning officers and their political masters daily. It is an unenviable and thankless position much of the time. Their task is to achieve policy objectives and support the strategic sustainable development of their area, while not creating unnecessary barriers to private development. An important aspect of this role is to safeguard communities against the negative impacts of an otherwise unrestrained free market. Local decision makers are under constant threat of having their decisions undermined by their superiors, or overturned on appeal by the Planning Inspectorate, or so many of them would like us to believe. In practice, decisions made on the basis of sound policy grounds, with significant local support, will usually hold water when tested at appeal. Furthermore, the threat of an appeal is not a reason to allow a developer to ride roughshod over the proper planning controls.

Pub protection in the NPPF The specific policies relating to pubs are listed at Paragraphs 28, 69 and 70. Generally speaking it is incumbent on decision makers to ensure that development proposals promote the retention of community facilities and that planners resist the loss of pubs, particularly where such a loss would impact on the day to day needs of the community. These national policies alone, in the absence of local plan policies, have been used successfully by communities, working with planners, to refuse schemes involving the loss of pubs. Such decisions have also survived appeals where Inspectors have agreed with the reasons for refusal. Planning policy needs to be seen as an integrated, holistic framework, from the NPPF and Ministerial policy down to local plans, with increasing levels of detail yet decreasing levels of responsibility. The NPPF, and the London Plan set the basis for pub protection policies in Local Plans, yet only just over half the Boroughs in the capital currently have such policies. We still have work to do in this area.

I appreciate that this crash course on the planning system is not the most riveting of subjects and hope a couple of pints of well kept cask beer have substantially eased the mental digestion of this material. In Saving Pubs Toolkit - Part 4, we will cover the tools and techniques used to put the planning theory outlined above into practice in real campaigns. There are pub heroes in our midst who have achieved the impossible. With sound advice, a good team around you and passion for pubs, there is no reason you cannot do the same. We are here to help.