“Planning Powers” A Pawn In Unsafe Cladding Negotiation

It’s a scandal that leaseholders, through no fault of their own, have been exposed to potentially massive liabilities in relation to building defects for which obviously they were in no way responsible.

Isn’t it obvious that where buildings have been constructed unsafely, in breach of legal standards at the time, then those responsible for that work should be liable (with speedy resolution of that issue and gap funding for works in the interim), but that where the work was done to legal standards at the time we as taxpayers should pick up that burden?

In terms of arriving at a solution, has Michael Gove’s 10 January “developers must pay” announcement made things worse or will it prove to be a turning point?

We’re all guilty of swimming along in our separate lanes. I’m a planning lawyer, not a construction lawyer, property litigator or tax lawyer. But I wanted to understand the basics of what exactly is happening here, particularly since the Secretary of State was reported as threatening to use the planning system to make life more difficult for developers if they don’t agree a “fully funded plan of action”.

Since February 2021, we have known that the Residential Property Developer Tax will apply from 1 April 2022 in relation to residential property development recognised in accounting periods ending on or after that date. It will apply to companies or groups of companies undertaking UK residential property development with annual profits in excess of £25 million and is a new 4% tax on profits they make on UK residential property development. As set out in HMRC’s 27 October 2021 policy paper, “the tax forms part of the government’s Building Safety Package aiming to bring an end to unsafe cladding, provide reassurance to homeowners and support confidence in the housing market. Given the significant costs associated with the removal of unsafe cladding, the government believes it is right to seek a fair contribution from the largest developers in the residential property development sector to help fund it.” The Government’s aim is to raise £2bn of revenue over a ten year period.

We have also known that the Building Safety Bill is currently going through the House of Lords. Clause 57 of the Bill would enable the Secretary of State to impose a building safety levy “for the purpose of meeting any building safety expenditure”. As explained in a November 2021 DLUHC building safety levy factsheet:

“This is a new levy on developers. In addition to the new Residential Property Developer Tax (which will tax the profits of larger developers for at least 10 years), the levy will contribute towards fixing historical fire safety defects, including unsafe cladding.

We will establish three regulatory “Gateways” at key stages in design and construction, and introduce new requirements during construction, that will apply to higher-risk buildings:

· Planning Gateway one – at the planning application stage

· Gateway two – before building work starts

· Gateway three – when building work is completed

These are stop/go decision points that must be passed before a development can proceed to the next stage, strengthening regulatory oversight of design and construction. At Gateway two, construction cannot begin until the Building Safety Regulator approves the building control application.

There will be sanctions for failure to pay the levy which will be defined in regulations. This will result in the Gateway two application not being approved by the Building Safety Regulator.”

The levy will apply to developments within scope of the Gateway 2 regulatory process, unless otherwise excluded. That means residential buildings or care homes over 18m or 7 storeys – but subject to exclusions, which we are consulting on.”

Consultation has been carried out as to the design of the levy but we have been waiting for the Government’s response and the quantum of the levy has not yet been determined.

The Secretary of State has been faced with the dilemma of how to relieve leaseholders from their unjustified burden at as little cost to the public purse as possible, presumably recognising that the building safety levy is not going to be able to achieve anything like what is needed .

It was revealed via a 7 January 2022 tweet from the BBC’s Lewis Goodall that Michael Gove had sought clearance from the Treasury “to make a statement resetting the Government’s approach to building safety ahead of Commons Report Stage of the Building Safety Bill”.

The tweet included a screenshot of the response from HM Treasury which authorises DLUHC to seek to secure £4bn funding from developers:

You may use a high-level “threat” of tax or legal solutions in discussions with developers as a means of obtaining voluntary contributions from them.”

“…the taxpayer should not be on the hook for further costs of remediation”.

DLUHC budgets are a backstop for funding these proposals (in full i.e. the £4bn if required) should sufficient funds not be raised from industry. You must prioritise building safety oversupply”.

Lenders and insurers are not included in the “polluter pays” piece – and no contributions should be sought from them”.

Formal announcements were then made by the Secretary of State in the form of:

• a press statement, Government forces developers to fix cladding crisis (DLUHC, 10 January 2022)

Mr Gove has today written to industry giving them a deadline of early March to agree a fully funded plan of action including remediating unsafe cladding on 11-18 metre buildings, currently estimated to be £4 billion.

He warns he will take all steps necessary to make this happen, including restricting access to government funding and future procurements, the use of planning powers and the pursuit of companies through the courts. He adds that if industry fails to take responsibility, the government will if necessary impose a solution in law.

• The “Dear Residential Property Developer Industryletter referred to in the announcement:

I am sure you are as committed as I am to fixing a broken system. I want to work with you to deliver the programme I have set out. But I must be clear, I am prepared to take all steps necessary to make this happen, including restricting access to government funding and future procurements, the use of planning powers, the pursuit of companies through the courts and – if the industry fails to take responsibility in the way that I have set out – the imposition of a solution in law if needs be.”

• A statement to the House of Commons “…we will press ahead with the building safety fund, adapting it so that it is consistent with our proportionate approach. We will now set a higher expectation that developers must fix their own buildings, and we will give leaseholders more information at every stage of the process.”

Note the references in the announcement and letter to “the use of planning powers”. Remember that reference in the Treasury letter to high-level threats?

Tory cladding shift leaves relations with UK developers in tatters (FT, 18 January 2022)

On 20 January the Secretary of State met with “senior executives from 20 building firms” but according to the Guardian:

Stuart Baseley, the executive chairman of the Home Builders Federation, said the industry lobby group had made its position clear at the meeting and would continue to engage constructively with the government. “We absolutely agree that leaseholders should not have to pay to remediate buildings. However we firmly believe that any further solutions must be proportionate.”

He said the bill should be shared with “other companies, sectors and organisations”, including “freeholders and the materials providers who designed, tested and sold materials that developers purchased in good faith”.

As we made clear to the government, we do not believe it should fall to responsible UK housebuilders to fund the remediation of buildings built by foreign companies, developers no longer trading, or other parties.”

Another piece, Others must help pay for cladding work, developers tell Gove following talks (Inside Housing, 21 January 2022) quotes Gove:

We have made a start through the residential property developer tax and the building safety levy, both announced last February, but will now go further. I will today write to developers to convene a meeting in the next few weeks, and I will report back to the House before Easter. We will give them the chance to do the right thing. I hope that they will take it. I can confirm to the House today that if they do not, we will impose a solution on them, if necessary, in law.”

In the meantime, the House of Commons Levelling Up, Housing and Communities Committee announced an inquiry into building safety funding on 19 January 2022, with this statement from chair Clive Betts:

The Secretary of State’s announcements on 10 January were a welcome step towards finally addressing the question of meeting the costs of making residential blocks safe rather than dumping the burden on flat-owners. Leaseholders should not be liable for the costs of removing hazardous cladding from their buildings nor the additional work necessary to make their flats safe.

In our new inquiry, we want to examine the effectiveness and impact of the Government’s planned measures to make developers and industry pay. We also wish to scrutinise whether the Secretary of State’s approach goes far enough to finally fix this crisis and examine what the funding arrangement to be agreed with industry should look like. We will also want to examine the risk to the Department’s budget, particularly around social housing, if it is not able to secure sufficient funds from industry.

The public evidence sessions for this inquiry are scheduled take place shortly and will conclude ahead of the Secretary of State’s planned report back to the House of Commons before Easter.”

How is all this going to play out? Who knows. If the development industry (a ridiculously loose term) doesn’t reach agreement with DLUHC, what really could we see in terms of the impacts on planning processes? Of course neither in law nor in practice could the Secretary of State discriminate in planning decision-making against any specific companies holding out from a deal but surely it will influence the priority or not that he gives to measures to increase housing supply by way of planning reform and/or his inclination or not to intervene with authorities where plan making has again stalled and surely it will influence the level at which the building safety levy is set, discriminating hugely against those bringing forward development proposals as against those companies which are responsible for past failings.

No-one should be under any illusion that these issues are easy. Is a “Dear Residential Property Developer Industry” letter accompanied by threats, in order to extract money from companies regardless of culpability, really the answer? We shall find out soon enough.

Meanwhile, this week’s clubhouse Planning Law Unplanned session is entitled “What do we mean by “digitising planning”? Possible futures”. We have five amazing guests: Euan Mills (digital planning lead, DLUHC), Graham Stallwood (director of planning, Planning Inspectorate), Mary Elkington, director, Figura Planning), Stefan Webb (place director, FutureGov) and Shelly Rouse, principal consultant, Planning Advisory Service). Join the app and event here.

Simon Ricketts, 21 January 2022

Personal views, et cetera

MAD World: Mapped Appeal Decisions

We launched Mapped Appeal Decisions today.

It’s a click-through interactive map that seeks to show the location of every planning appeal decision in England made between 1 January 2017 and 12 December 2021 following a public inquiry, with links to the relevant decision letter. Best viewed on a proper screen!

The data is drawn from our weekly Town Library planning appeal decisions updates over the period (free subscription still available via the link) and for all this work we at Town Legal are very grateful both to the Planning Inspectorate for the information publicly available on its website, which makes these sorts of applications possible, to OpenStreetMap for the base mapping and of course to our friends Simmons Wavelength for the legal engineering (in particular Joy Bradley for pitching the initial idea to me last year).

Any feedback would be very helpful. So far the extent of Green Belt across the country is shown on the map base but of course the possibilities are almost limitless.

Health warning: there are some decision letters where a postcode is not shown for the relevant site – they are not currently shown on the map. If you spot any other glitches do let me know.

Feel free to share the link or indeed this post with colleagues.

The only other thing I am going to mention in this week’s very short blog post is, as always, clubhouse Planning Law Unplanned. This Tuesday, 18 January at 6pm, the subject is SECRET WORLD OF BARRISTERS’ CHAMBERS, with as our guests, Paul Coveney (senior clerk, Francis Taylor Building), Marie Sparkes (head of business development and marketing, Keating Chambers), Gary Smith (chief clerk, Kings Chambers) and Mike Gooch (senior practice manager, Landmark Chambers). Everything you ever wanted to know but never dared to ask…

A link to the clubhouse app and event is here.

Simon Ricketts, 14 January 2022

Personal views, et cetera

Just What Is It That Makes First Homes So Different, So Appealing?

First Homes have been stuck onto the “affordable housing policy” collage, not as net additional affordable housing but as a replacement, mandated by policy, for other forms of affordable housing which would have been secured by local planning authorities in any event.

I summarised the 24 May 2021 government announcement and how the first homes mechanism is meant to operate in my 28 May 2021 blog post Moving Into First Homes: 3 Key Deadlines (TL;DR: at least 25% of all affordable housing secured on a development should be first homes; must be for first time buyers; must carry at least 30% discount in perpetuity; household income cap of £80,000, or £90,000 in London).

The House of Commons Library first homes information page (3 November 2021) is also useful for its links to the relevant announcements and documents.

As I summarised in the blog post, there were three key dates to implementation of the new regime:

28 June 2021

From the guidance: “ Local plans and neighbourhood plans submitted for examination before 28 June 2021, or that have reached publication stage by 28 June 2021 and subsequently submitted for examination by 28 December 2021, will not be required to reflect the First Homes policy requirement”

(However: “Planning Inspectors should consider through the examination whether a requirement for an early update of the local plan might be appropriate.”)

28 December 2021

From the guidance: “The new First Homes policy requirement does not apply for the following:

sites with full or outline planning permissions already in place or determined (or where a right to appeal against non-determination has arisen) before 28 December 2021”

28 March 2022

It also does not apply to “applications for full or outline planning permission where there has been significant pre-application engagement which are determined before 28 March 2022”.

So if you wish to avoid the new requirement and you are not in an area where a plan has been adopted under the transitional arrangements, you need to have submitted your application so that it will be determined (or so that that the statutory right to appeal on the basis of non-determination has arisen) by 28 December 2021 and if there is any doubt as to whether you will meet that deadline it would be prudent to have engaged in “significant pre-application engagement” such that the deadline for achieving permission is 28 March 2022.”

The first two dates have now passed. I have not yet seen examples of first homes being secured as part of a section 106 agreement. What experience is there out there?

As originally promised in the May 2021 announcement, on 23 December 2021 DLUHC published model section 106 clauses for first homes. At the same time it updated its planning practice guidance. It is really good to see the model clauses, which will be a useful starting point.

Stuart Tym from Shoosmiths wins the “working over Christmas” prize with his excellent 5 January 2022 Local Government Lawyer article First Homes: model Section 106 agreement (although I’m going to deduct a point for his conclusion that “the devil remains in the detail” – when is the devil not in the detail?!).

The first clubhouse Planning Law Unplanned session for 2022 is at 6pm on Tuesday 11 January and will be another really key event, particularly if you have any interest in the survival of theatre and live arts in the face of this pandemic: “MAKING DRAMA OUT OF A CRISIS: theatre vs covid”, featuring Broadway theatre producer (and ex US environmental lawyer) David Siesko; chair of Shakespeare’s Globe (and former planning lawyer) Margaret Casely-Hayford CBE, and theatre manager/Theatres Trust cultural policy manager Tom Stickland. Link to app here.

Simon Ricketts, 7 January 2022

Personal views, et cetera

Just What Is It That Makes Today’s Homes So Different, So Appealing? by Richard Hamilton (1956)

Imagine Being In A Constant State of Twixmas

This uncomfortable feeling of in-betweenness is familiar to anyone engaged with the planning system in 2021.

No real progress on planning reform, on local government reform (save for now being branded as “levelling up”) or on reform of EU-derived environmental legislation.

In the meantime, we have all been experiencing slower decision making on the part of local planning authorities (Planning consents issued within statutory 13 weeks fall to lowest levels since 2016 (Michael Donnelly, Planning Resource, 20 December 2021)), plan-making has slowed (with spurious excuses on the part of some authorities it must be said – Why the PM’s suggestion that greenfield housebuilding is unnecessary could further delay councils’ plan-making (David Blackman, Planning Resource, 4 November 2021)) and the Planning Inspectorate’s statistics have worsened (Number of appeals cases on PINS’ books rises again but decision numbers increase (Michael Donnelly, Planning Resource, 22 December 2021)). Sam Stafford’s 50 Shades Of Planning 14 December 21 blog post Life On The Front Line is unmissable reading, with its first hand accounts by local authority officers faced with an unprecedented resourcing crisis. I don’t care what our government department is called – it needs to be reading the dashboard and acting accordingly.

All year we have all been running hard on our individual hamster-wheels, working to each short-term deadline within these elongated processes. The policy twists and turns, to which our work has to respond, have been as dizzying as ever.

There has invariably been something new to write about as I’ve approached the end of the week and thank you all as ever for continuing to read and provide your feedback.

The four most popular Simonicity posts this year were:

1. Beautiful Day (30 January 2021)

2. I’m Sorry I Haven’t A CLEUD (12 June 2021)

3. Plug Pulled On Local Authority Meetings (26 March 2021)

4. Sad When Our Planning System Is Media Laughing Stock (10 September 2021).

I’ve already mentioned Sam’s 50 Shades of Planning. Clenched fist in solidarity as well to Zack Simons’ #Planoraks blog and to Nicola Gooch’s LinkedIn blog posts. I often read what they’ve written and think that I can probably get away that weekend with just posting a link to it and “I agree”.

Zack, Nicola and so many of you have also been generous with your time in appearing on or tuning into the weekly Planning Law Unplanned rooms that I started on the clubhouse app in February, aided and abetted of course by Paul, Charlie, Caroline, Victoria, Jonathan, Jo, Jon, Spencer and George. I have been keen to give a voice to as many people as possible and, through being fleet of foot, to use the slots to explore themes in a way which isn’t possible on other platforms.

The clubhouse app first allowed sessions to be recorded in November. Since then these have been the most popular (do give them a listen):

1. Zack Simons and Kate Olley on the Tulip appeal decision and the High Court ruling in Sage respectively

2. Catriona Riddell and other guests on the County Councils Network “Future of Strategic Planning” report

3. Scott Stemp and other guests on the strange world of planning enforcement

4. Many of my colleagues in “START ME UP: How Town Legal started up – and why”

We haven’t yet decided whether we’ll have a session on 4 January but at 6 pm on 11 January we have a fascinating discussion lined up: “MAKING DRAMA OUT OF A CRISIS: theatre vs covid”, featuring Broadway theatre producer (and ex US environmental lawyer) David Siesko; chair of Shakespeare’s Globe (and former planning lawyer) Margaret Casely-Hayford CBE, and theatre manager/Theatres Trust cultural policy manager Tom Stickland. Link to app here.

Here’s to 2022.

Simon Ricketts, 30 December 2021

Personal views, et cetera

Strong Beer: London Tall Buildings & The Master Brewer Case

If you are dealing with any proposal for a building of six storeys or more in London, R (London Borough of Hillingdon) v Mayor of London (Lang J, 15 December 2021) is a vital case, because it resolves for now the question of how the relevant policy in the London Plan, policy D9, is to be interpreted. Is it right, as have some have contended, that tall buildings may only be developed in locations identified as suitable in boroughs’ local plans? Lang J says no.

The three relevant parts of the policy for the purposes of this issue, as quoted in the case, read as follows:

Definition

A

Based on local context, Development Plans should define what is considered a tall building for specific localities, the height of which will vary between and within different parts of London but should not be less than 6 storeys or 18 metres measured from ground to the floor level of the uppermost storey.

Locations

B

1) Boroughs should determine if there are locations where tall buildings may be an appropriate form of development, subject to meeting the other requirements of the Plan. This process should include engagement with neighbouring boroughs that may be affected by tall building developments in identified locations.

2) Any such locations and appropriate tall building heights should be identified on maps in Development Plans.

3) Tall buildings should only be developed in locations that are identified as suitable in Development Plans.

Impacts

C

Development proposals should address the following impacts:

1) visual impacts […]

2) functional impact […]

3) environmental impact […]”

(there is also a fourth part – as to provision for public access).

The big question has been whether the first and second parts of the policy have to be passed before a scheme can be judged as against the detailed criteria in part C.

The text underlined had been added pursuant to a direction by the Secretary of State dated 10 December 2020 before the plan was then adopted on 2 March 2021.

Quoting from the judgment:

The Secretary of State’s covering letter, dated 10 December 2020, said as follows:

“….. I am issuing a new Direction regarding Policy D9 (Tall Buildings). There is clearly a place for tall buildings in London, especially where there are existing clusters. However, there are some areas where tall buildings don’t reflect the local character. I believe boroughs should be empowered to choose where tall buildings are built within their communities. Your draft policy goes some way to dealing with this concern. In my view we should go further and I am issuing a further Direction to strengthen the policy to ensure such developments are only brought forward in appropriate and clearly defined areas, as determined by the boroughs whilst still enabling gentle density across London. I am sure that you share my concern about such proposals and will make the required change which will ensure tall buildings do not come forward in inappropriate areas of the capital.”

DR12 set out a “Direction Overview” as follows:

The draft London Plan includes a policy for tall buildings but this could allow isolated tall buildings outside designated areas for tall buildings and could enable boroughs to define tall buildings as lower than 7 storeys, thus thwarting proposals for gentle density.

This Direction is designed to ensure that there is clear policy against tall buildings outside any areas that boroughs determine are appropriate for tall buildings, whilst ensuring that the concept of gentle density is embodied London wide.

It retains the key role for boroughs to determine where may be appropriate for tall buildings and what the definition of tall buildings are, so that it is suitable for that Borough.”

The ‘statement of reasons’ for DR12 stated inter alia:

“……The modification to policy D9 provides clear justification to avoid forms of development which are often considered to be out of character, whilst encouraging gentle density across London.”

The issue had come before the court in the context of planning permission granted by the Mayor of London for the redevelopment of the former Master Brewer Motel site in Hillingdon – a development promoted by Inland Homes for a series of buildings of up to 11 storeys in height. Hillingdon Council had resolved to refuse planning permission on the basis that tall buildings in this location would be contrary to its local plan but the Mayor had recovered the application for his own determination and approved it on 30 March 2021.

There were three grounds to the judicial review brought by the Council:

i) The Defendant misinterpreted Policy D9 of the London Plan 2021 by concluding that, notwithstanding conflict with Part B of that policy, tall buildings were to be assessed for policy compliance against the criteria in Part C.

ii) The Defendant erred in failing to take into account a material consideration, namely, the Claimant’s submissions and accompanying expert evidence as to air quality.

iii) The Defendant acted unlawfully and in a manner which was procedurally unfair in that he failed to formally re-consult the Claimant or hold a hearing, prior to his re-determination of the application, following the adoption of the London Plan 2021.”

I am only focusing on the first ground but the third ground may also be of interest on the question of when an application needs to be re-consulted upon or re-considered in the light of changes in policy.

The analysis carried out by the judge is interesting.

First of all she considers whether the meaning of the policy was “clear and unambiguous” such that under legal principles of interpretation, the courts should not have regard to extrinsic materials to assist in interpretation. She recorded that “[a]ll parties contended that the meaning of Policy D9 was clear and unambiguous, despite the differences in their interpretation of it. In those circumstances, applying the principles set out above, I consider that I ought not to have regard to the letter from the Secretary of State to the Defendant dated 10 December 2020 (paragraph 46 above) as it is not a public document which members of the public could reasonably be expected to access when reading Policy D9. Furthermore, it is of limited value as, taken at its highest, it sets out the Secretary of State’s intentions, whereas the Court must consider the meaning of the words actually used in Policy D9, as amended by DR12, which in my view did not give effect to the expressed intentions in the letter.”

(I’m scratching my head as to how the various parties to litigation can be arguing as to the meaning of a policy but can agree that the meaning of the policy is “clear and unambiguous”. In saying that the Secretary of State’s direction letter “was not a public document which members of the public could reasonably be expected to access when reading Policy D9”, I take it that she was not saying that it was not a “public document”, which of course it was, but that a member of the public should not be expected to go searching for such documents to assist with interpretation of a policy if it is indeed clear and unambiguous).

She then concludes that the council’s interpretation of the policy “cannot be correct”:

Read straightforwardly, objectively and as a whole, policy D9:

i) requires London Boroughs to define tall buildings within their local plans, subject to certain specified guidance (Part A);

ii) requires London Boroughs to identify within their local plans suitable locations for tall buildings (Part B);

iii) identifies criteria against which the impacts of tall buildings should be assessed (Part C); and

iv) makes provision for public access (Part D).

There is no wording which indicates that Part A and/or Part B are gateways, or pre-conditions, to Part C. In order to give effect of Mr Howell Williams QC’s interpretation, it is necessary to read the words underlined below into the first line of Part C to spell out its true meaning:

Development proposals in locations that have been identified in development plans under Part B should address the following impacts.”

But if that had been the intention, then words to that effect would have been included within the policy. It would have been a straightforward exercise in drafting. It is significant that the Secretary of State’s direction only required the addition of the word “suitable” to Part B(3). It did not add any text which supports or assists the Claimant’s interpretation, even though the Secretary of State had the opportunity to do so.

In my view, the context is critical to the interpretation. Policy D9 is a planning policy in a development plan. By section 70(2) TCPA 1990 and section 38(6) PCPA 2004, there is a presumption that a determination will be made in accordance with the plan, unless material considerations indicate otherwise. Thus, the decision-maker “will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it”: per Lord Clyde in City of Edinburgh at 1459G. Furthermore, the decision-maker must understand the relevant provisions of the plan “recognising that they may sometimes pull in different directions”: per Lindblom LJ in BDW Trading Ltd at [21], and extensive authorities there cited in support of that proposition. As Lord Reed explained in Tesco Stores Ltd v Dundee City Council, “development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another”.

The drafter of Policy D9, and the Defendant who is the maker of the London Plan, must have been aware of these fundamental legal principles, and therefore that it was possible that the policy in paragraph B(3) might not be followed, in any particular determination, if it was outweighed by other policies in the development plan, or by material considerations. It seems likely that policy provision was made for such cases, given the importance of the issue.

In considering whether to grant planning permission for a tall building which did not comply with paragraph B(3), because it was not identified in the development plan, it would surely be sensible, and in accordance with the objectives of Policy D9, for the proposal to be assessed by reference to the potential impacts which are listed in Part C. The Claimant’s interpretation leads to the absurd result that a decision-maker in those circumstances is not permitted to have regard to Part C, and must assess the impacts of the proposal in a vacuum.”

Therefore:

Notwithstanding the non-compliance with Part B of Policy D9, the Defendant determined that the proposal accorded with the provisions of the development plan when read as a whole. That was a planning judgment, based on the benefits of the proposal, such as the contribution of much-needed housing, in particular affordable housing, and the suitability of the Site (brownfield and sustainable, with good transport). The Defendant was satisfied, on the advice of the GLA officers, that sufficient protection from air quality impacts would be achieved. The Defendant was entitled to make this judgment, in the exercise of his discretion.”

Accordingly, boroughs do not have a veto, by virtue of their local plans, as to where tall buildings may be located in their boroughs – policy D9 is not to be interpreted in a way automatically treats proposals for tall buildings as contrary to the development plan where they are not supported in the local plan.

Whether or not this is what the previous Secretary of State intended with his direction may be another matter but of course the London Plan is adopted and free from the possibility of legal challenge (and, pragmatically, the Secretary of State could have course chosen to call in the application but did not) – and if parts A and B were indeed to be a necessary gateway there would be the immediate issue that any development of buildings of six storeys or more would be stymied as contrary to the development plan until boroughs’ plans had caught up with, and been examined in the context of, the new policy approach – hardly consistent with the Secretary of State’s urging for London to achieve a significant increase in housing delivery.

To mark the end of 2021 and, self-indulgently, the 5th anniversary of my firm, we have a unique Clubhouse event planned for 6 pm this Tuesday 21 December: “START ME UP: how Town Legal started 5 years ago – & why”. There will be a stageful of “day one” Townies: Clare Fielding, Patrick Robinson, Meeta Kaur, Benita Wignall, Spencer Tewis-Allen, our former chairman (and ex Herbert Smith Freehills COO) John Mullins and former associate Ricky Gama (now Leigh Day) as well as our good friends, without whom…, Drew Winlaw (Simmons Wavelength) and Beau Brooke (Kindleworth). If you ever wondered what it takes to create a professional services firm from scratch, do tune in. Link to app here.

Simon Ricketts, 17 December 2021

Personal views, et cetera

Photo by Jon Parry courtesy Unsplash

Devolver

Tomorrow never knows. The Levelling Up white paper was due to be published next week but won’t now appear until early 2022.

Here, there and everywhere. If the leaks are to be believed, we may be in line for some radical reforms, indeed sounding much like proposals from the Centre for Cities that I referred to in my 25 September 2020 blog post The Devolution Dance: The Planning White Paper & Local Government Reorganisation, Neighbourhood Planning.

Ministers plan sweeping changes to local government as part of levelling up agenda, leaked paper reveals (Independent, 10 December 2021)

The government plans to radically alter local government in England, replacing it with a single-tier mayoral-style system.”

The ambition is to strip back layers of local government and replace them with a single-tier system, as in Northern Ireland, Wales and Scotland, but the government is already braced for a backlash to the plans, according to one senior official.”

The plans proposed in the draft paper would mean a huge overhaul of local government, and either scrapping or merging England’s 181 district councils and 24 county councils.”

The step towards single tier local government would need to be under way by 2023 in order to coincide with changes in funding for regions. A new Local Growth Funding Roadmap detailing how this will work will be released in 2022, and then enforced in 2023, according to the paper.

The document lays out 13 missions with which to “anchor” the agenda, which the prime minister has described as the central purpose of his administration, and all come with a 2030 deadline.”

Several parts of the draft paper show that key decisions from the levelling up cabinet committee and the Treasury have yet to be signed off.”

Ministers examine shake-up of regional development in England (FT, 7 December 2021)

Local Enterprise Partnerships (LEPs) appear to be for the chop.

American-style Governors could level up England (The Times, 4 December 2021)

Is the concept of a “governor” going to be any more attractive for local electorates than that of a Mayor?

County deals” (see this Institute for Government explainer) seem to be the reported carrot/stick.

There is also, groan, the possibility of a “statutory levelling-up quango”.

For no-one. I reported in my 24 September 2021 blog post Levelling Up Is… on the BEIS Commons Committee’s 22 July 2021 report Post-pandemic economic growth: Levelling up. On 3 December 2021 the Government published its response, which, ahead of publication of the white paper, is largely unspecific.

I want to tell you. With interesting timing, the County Councils Network published on 8 December 2021 its report prepared with assistance from Catriona Riddell, the future of strategic planning in England: effective decision making and robust governance, with proposals for an accountable strategic planning body which would prepare a strategic growth plan and a strategic planning advisory body to test and advise as to whether its vision is being delivered.

She said she said. Even though she has admitted that she doesn’t like the Beatles, I’m delighted that Catriona has agreed to be our special clubhouse Planning Law Unplanned guest at 6pm this Tuesday 15 December 2021, which will be a great opportunity to see if all of this thinking can come together. Do we need to get back to strategic or at least county level planning, and in place of LEPs something more resembling the old RDAs? I would love you to join us, link to app here.

Got to get you into my life. Do also listen back to our planning enforcement chat last week, now available on replay. Given how the conversation ended up, yes of course we should have called it “Everybody’s got something to hide, except me and my monkey”.

Good day sunshine.

Simon Ricketts, 11 December 2021

Personal views, et cetera

What Are Conservation Covenants?

The Environment Act 2021 was born on 9 November 2021, over 22 months after the first version of the Bill received its first reading on 30 January 2020 – a gestation period equalled in the animal kingdom only by the African elephant.

One of the less controversial but potentially most useful elements of the Act is Part 7, namely the introduction of a mechanism for land owners to enter into “conservation covenants”. What is this new beast?

In simple terms, a conservation covenant is a private voluntary agreement between a land owner and a local authority or other responsible body designated by the Secretary of State with commitments given by the land owner, enforceable against successors in title, to do or not do specified things on the land that have a “conservation purpose”.

The Law Commission first recommended in a 2014 report that this regime be introduced in legislation, given that existing legal mechanisms each have significant legal and/or practical limitations, for instance planning obligations need to fall within the types of commitment specified in section 106(1) of the Town and Country Planning Act 1990 and regulation 122 of the CIL Regulations will often be a constraint on the authority’s ability to take the obligation into account in its decision making; restrictive covenants more generally carry with them the constraint of requiring the party with the benefit of the covenant to have an interest in land that will take the benefit of the covenant (the “dominant tenement” as any legal fule kno) and with the covenant having to be a negative obligation in order to be automatically enforceable against successors.

The Commission gave three examples of how conservation covenants might be used:

• “protecting woodland over the generations

“Example: The owner of an extensive family estate, much of which is forested and used by the public for hiking, intends to leave the land to her children. She wants to ensure that the forest is maintained and that public access continues, but she is not sure that her children – or future generations – would share those priorities”

• “selling heritage property”

Example: A heritage group has invested funds in buying and restoring a Tudor house. The organisation wishes to sell the property, but wants to ensure that the work it has undertaken, and the heritage value of the property, is preserved.

• “”protecting a biodiversity offsetting site”

Example: A local planning authority is faced with a planning application for an affordable housing development. The proposed development site is a wild flower meadow. If the development were to go ahead the meadow would be destroyed completely. In this instance the planning authority is willing to grant planning permission, provided the damage caused to the meadow is offset by the creation and long-term maintenance of a similar site elsewhere.

(Of course there has since been significant progress in relation to the principle of biodiversity net gain – see the provisions in Part 6 of the Act summarised in my 2 October 2021 blog post Ecology By Numbers: Biodiversity Net Gain In The Environment Bill).

DEFRA then carried out a consultation in 2019. Its subsequent response to the consultation process confirmed that it would proceed with legislation, by way of the Environment Bill, and would develop guidance.

The provisions in Part 7 of the Act the provisions do indeed give effect to what was proposed. For a good summary I recommend that you look at the explanatory notes to the Act (pages 132 to 141). Some highlights from that summary:

• It must be apparent from the agreement that the parties intend to create a conservation covenant.

• Any provision must be of a “qualifying kind”, which can take one of two forms. “First, it may require the landowner to do, or not to do, something on specified land in England, or require the landowner to allow the responsible body to do something on such land. Second, it may require the responsible body to do something on such land.” The agreement can also include ancillary provisions.

• The land owner must have a “qualifying estate” in the land – namely a freehold interest or a leasehold estate of more than seven years.

• A conservation purpose “extends to the natural environment of the land, such as plants and animals and their habitats; the land’s natural resources, such as water on the land; the land as a place of archaeological, architectural, artistic, cultural or historic interest; and the setting of the land. The reference to setting provides for the protection of land around a conservation site, which may affect its conservation status. For example, the architectural or artistic value of a country house could derive in part from the landscape in which it is set.” This is important! Conservation covenants are not just about nature conservation but can also be used in relation to, for instance, heritage conservation (see back to that second example from the Law Commission report).

• Bodies (including local authorities) need to apply to the Secretary of State to be designated by the Secretary of State to be a responsible body. If not a local body, the applicant body “will, additionally, have to satisfy the Secretary of State that at least some of its main purposes, functions or activities relate to conservation”. Criteria will need to be published by the Secretary of State. (Interesting that local authorities are not automatically designated).

• A conservation covenant is a local land charge and once registered is effective against subsequent owners of the land. It has indefinite effect unless otherwise stated in the agreement (and subject to the length of the relevant lease if entered into by a leaseholder). Enforcement will usually be by way of seeking an injunction or order for specific performance. It can be discharged or modified by agreement or by application to the Upper Tribunal.

• Section 135 (1) “gives the High Court, the county court or the Upper Tribunal, on application of any person interested, the power to make a declaration as to the validity of a conservation covenant, whether land is subject to an obligation under a conservation covenant, who is bound by or has the benefit of such an obligation, and the true construction (that is, meaning) of such an obligation. It will be for the court or the Upper Tribunal to decide whether an applicant has sufficient interest to make an application. The power to make a declaration extends to any agreement or order that modifies a conservation covenant. A person might seek a declaration under subsection (1) in circumstances where they needed to know the status of a conservation covenant – for example, in order to resist an action enforcing a breach or because the land was wanted for a different use.”

There is no news yet as to when the Regulations will be made to bring Part 7 into force. The biodiversity net gain provisions are likely to be a couple of years away from being switched on. Let’s hope that conservation covenants are not that far off, although of course we do need some good guidance to accompany what could prove to be a well-used procedure, because the opportunities for use of conservation covenants are wide: commitments to provide biodiversity net gain off-site are an obvious example but think also about commitments in relation to offsetting to address nitrate, phosphate or water neutrality for instance, as well as commitments which might previously have involved transferring land to a conservation or heritage group – the land will now be able to be retained with long term commitments given by way of a CC.

This week’s Clubhouse session (6pm 7 December) will be a descent into the strange world of planning enforcement. Whatever your perspective, Scott Stemp and Nicola Gooch will be leading us through the murky depths. Stories welcome. Link to app here.

Simon Ricketts, 3 December 2021

Personal views, et cetera

Extract from photo by Hu Jiarui , courtesy Unsplash

Integrated Rail Plan, Unplanned?

Wouldn’t it be good if Government plans were proper plans, subject to detailed assessment of their environmental effects, including formal assessment of reasonable alternatives and with the requirement for further assessment of material changes? But we lost that argument a long time ago, in R (HS2 Action Alliance) v Secretary of State for Transport (Supreme Court, 22 January 2014). The Supreme Court held that the Government’s January 2012 white paper “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” was not subject to any requirement for strategic environmental assessment as it was not a plan that “set the framework” for subsequent decision making.

As per the judgment press summary:

“DNS is an elaborate description of the HS2 project, including the thinking behind it and the government’s reasons for rejecting alternatives. However, it does not constrain the decision-making process of the authority responsible, which is Parliament. Formally, and in reality, Parliament is autonomous, and not bound by any “criteria” contained in previous Government statements.

So we were to take it all with a pinch of salt, including images such as this, showing the proposed “Y” route, to Manchester (and ultimately Glasgow) and Leeds (and ultimately Edinburgh via Newcastle):

Department for Transport, January 2012

Bear all this in mind when you read the Department for Transport’s Integrated Rail Plan for the North and Midlands published on on 18 November 2021. The plan “confirms” £54bn of spending on rail and local transport in the Midlands and North in addition to the £42bn already included for HS2 Phases 1 and 2a between London, the West Midlands and Crewe and has these images showing the journey time savings proposed:

What an opportunity to make good promises as to Levelling Up and Building Back Better.

The accompanying press statement summarises the proposals as follows:

“It is a £96 billion plan that outlines how major rail projects, including HS2 Phase 2b, Northern Powerhouse Rail and Midlands Rail Hub, will be delivered sooner than previous plans so that communities, towns and cities across the North and Midlands are better connected with more frequent, reliable and greener services and faster journey times.

The plan confirms that the government will:

• build 3 new high-speed lines including:

HS2 from Crewe to Manchester

HS2 from the West Midlands to East Midlands Parkway, enabling HS2 trains to join existing lines to serve Nottingham and Derby city centres (unlike original plans)

• a new high-speed line between Warrington, Manchester and Yorkshire, as part of Northern Powerhouse Rail

electrify and/or upgrade 3 existing main lines including:

• the Transpennine Main Line between Manchester, Leeds and York

• the Midland Main Line between London St Pancras, the East Midlands, and Sheffield

upgrading and improving line speeds on the East Coast Main Line

The plan also confirms that the government will progress options to complete the Midlands Rail Hub and spend £100 million to look at how best to take HS2 trains to Leeds, including assessing capacity at Leeds station and starting work on the West Yorkshire mass transit system.”

Piecing together the implications one sees that the previous commitment to build HS2 to Leeds in accordance with that 2012 plan has now become simply an extension to East Midlands parkway with HS2 trains then able to go on existing lines to Nottingham and Derby. The long anticipated “Y” becomes a “\”. As recently as 28 May 2021, New Civil Engineer had reported the Transport Secretary saying exactly the opposite: DfT commits to HS2 eastern leg after months of uncertainty.

There is much else to unpack. Those maps stress journey time reductions (which is of course not the only factor at all in securing an improved rail network) but so much is down to the detail: routes, specifications, delivery timescales and of course (HS2 to Leeds being a perfect example) the risk of elements subsequently simply being lopped off. Any supporting assessment work is simply unavailable (see my opening comments).

Let’s go back to New Civil Engineer: The integrated rail plan is a half-baked plan which fails rail passengers (New Civil Engineer, 22 November 2021 – a piece incidentally which accepts the logic of the decision not to extend HS2 to Leeds).

Then let’s turn to the knowledgable Jonathan Stott at Gateley Hamer: Integrated Rail Plan: Midlands wins by country mile and North West in 2nd as Yorkshire handed mass-transit consolation (22 November 2021).

As Jonathan identifies, Yorkshire is potentially the biggest loser, with also a retreat from the proposals for Northern Powerhouse Rail, a new-build high speed line between Leeds and Manchester. The regional press had a field day:

West Yorkshire Mayor Tracy Brabin has written to Grant Shapps setting out the various failings of the proposals, saying that she and other West Yorkshire leaders “are angry and frustrated by the promises that have been seemingly broken. Our communities feel betrayed”. (26 November 2021).

Transport for the North: Integrated Rail Plan branded ‘woefully inadequate’ (18 November 2021)

The reconsideration (not yet a final scrapping) of HS2 between the East Midlands and Leeds brings little relief incidentally to those whose homes and businesses have long been blighted – safeguarding of the route will remain whilst further analysis is done.

How HS2 U-turn has sent £115 million down the drain after it was spent buying houses on abandoned route – and we can’t even sell them off yet (Mail Online, 19 November 2021)

HS2: Housing estate in limbo after eastern leg axed (BBC, 18 November 2021)

Manchester of course still gets HS2, but with proposals for a terminus station there, with an above ground, rather than tunnelled, route – long a cause for concern on the part of Andy Burnham: Government planning ‘to put HS2 on stilts through Manchester’ (Guardian, 19 November 2021). Fat chance incidentally of any extension of HS2 to Scotland any more it would appear. The Transport Secretary hardly oozes sympathy in his reactions to Burnham’s concerns:

“If we spend £6bn or £7bn building the station underground at Manchester, we will take away from Liverpool, Leeds, Hull or some of the other places that are calling for money … Manchester is a principal beneficiary of this entire programme and we wish his constituents well in their new journey times.”

Journey times, journey times.

Meanwhile, whilst London is certainly suffering in terms of the unrelieved financial pressures upon Transport for London (see eg Nick Bowes’ Centre for London 10 November 2021 blog post Mind the gap: What’s next for the funding crisis at the heart of London’s transport system), there is at least finally some good news around the corner: Crossrail starts final testing phase ahead of opening (IanVisits, 22 November 2021).

The integrated rail plan and what it does or doesn’t do for levelling up is going to be the topic for this week’s clubhouse Planning Law Unplanned session. Guest speakers cover all the bases: from Birmingham the aforementioned Jonathan Stott, from Manchester Urbed’s Vicky Payne, from Leeds barrister Stephanie Hall and from London my Town partner Raj Gupta. Join us via this link.

Courtesy the Bash Mash and JonLawton10

Views On Design – Three Recent Decisions

It is interesting to consider what the Secretary of State has said about design matters in three recent decisions, subsequent to the July 2021 revisions to the NPPF and new national model design code (see my 27 July 2021 blog post Beauty & The Beach).

Westferry Printworks

Image courtesy of Westferry Developments

Following the quashing of his predecessor’s decision to allow the appeal by Westferry Developments Limited in relation to the non-determination by the London Borough of Tower Hamlets of its application for planning permission for 1,524 dwellings and associated development on the former Westferry Printworks site (see my 23 May 2020 blog post) the Secretary of State has now dismissed the appeal in a decision letter dated 18 November 2021.

On design he says this:

“The Secretary of State has given careful consideration to the Inspector’s analysis at IR.A.420-435 and IR.B.235-240 and IR.B.302 in relation to the effect of the scale, height and massing of the proposed development on the character and appearance of the surrounding area. For the reasons given at IR.B.235-236 and IR.B.302 the Secretary of State agrees that the appeal scheme would be harmful to the character and appearance of the area (IR.B.302).

The Secretary of State agrees with the Inspector’s assessment at IR.A.436 that the spacing between the proposed towers and the way materials and the detailed design of the facades would bring texture and variety to the appearance of the buildings. However, for the reasons given at IR.B.235-236, the Secretary of State further agrees that the appeal scheme would result in a proposal of excessive height, scale and mass which would fail to respond to the existing character of the place. He further agrees that it would not enhance the local context by responding positively to local distinctiveness and, like the Inspector, considers that the proposal would conflict with LonP 2021 Policy D3 (IR.B.236).

For the reasons given at IR.A.436-438 and IR.B.237, the Secretary of State agrees that although the site is within a Tall Buildings Zone (TBZ) as identified in the development 6 plan, the scale, height and mass of the proposal is such that it would not make a positive contribution to the skyline nor the local townscape or achieve an appropriate transition in scale to buildings of significantly lower height. He further agrees that it would not reinforce the spatial hierarchy of the local and wider context, and would cause harm to the significance of heritage assets, would harm the ability to appreciate a World Heritage Site (WHS) and would compromise the enjoyment of an adjoining water space (IR.B.237). He further agrees at IR.A.436 that the proposal would not be well related to the street scene of Westferry Road (IR.A.436). For the reasons given, he agrees that the proposal would conflict with LonP Policy D9. He also agrees at IR.B.238 that the proposal would conflict with LP 2031 Policy S.DH1 because it would not be of an appropriate scale, height, mass, bulk and form. He further agrees, for the reasons given at IR.B.239, that the proposal would conflict with Policy D.DH6.

The Secretary of State further agrees that for the reasons given at IR.B.240, the proposal would not accord with the design principles set out in site allocation 4.12 (Westferry Printworks) of the LP 2031 and would therefore conflict with site allocation 4.12.

For the reasons given, the Secretary of State agrees with the Inspector at IR.B.302 that overall, the proposal would not represent high quality design which responds to its context. He further agrees that significant weight should be attached to the harm to the character and appearance of the area because of the degree of harm that would be caused and the wide area over which that harm would be experienced (IR.B.302).

The Secretary of State has taken in to consideration the appellant’s representation of 27 August 2021, including that the proposal is representative of the highest quality design and appearance and that the development would deliver an attractive well-designed landscape masterplan that is easily accessible for pedestrians and cyclists; that trees are integral to the proposed streetscape; and that the proposals will deliver a safe, secure and attractive environment. The appellant considers that the proposed development is compatible with the emphasis in the revised Framework for building and places to be beautiful and sustainable. The Secretary of State has also taken into account the Council’s representation of 26 August 2021. This considers that the amended Framework and the requirement to consider the National Design Guide further reinforces and strengthens the Council’s case, and sets out where the Council considers that the proposal does not align with the principles in the National Design Guide.

For the reasons given in this letter, the Secretary of State considers that overall, the appeal scheme does not reflect local design policies or government guidance on design, and is not in accordance with paragraph 134 of the Framework. This view is further reinforced by his conclusions on heritage issues, below. He considers that the shortcomings of the proposal in terms of the failure to accord with the provisions of the revised Framework carry significant weight against the proposal.”

The Tulip, 20 Bury Street, London EC3

Image courtesy of Bury Street Properties

On behalf of the Secretary of State, the Minister for Housing, Christopher Pincher, dismissed an appeal by Bury Street Properties against the refusal by the City of London Corporation for planning permission for a 304 metre high visitor attraction in the City of London. His decision letter dated 11 November 2021 and inspector’s report make fascinating reading.

Zack Simons gave a great summary of the decision on clubhouse last Tuesday and you can listen again here.

There are some fascinating passages both in the decision letter and in inspector’s David Nicholson’s elegantly written report. Aside from his conclusions on heritage impact (particularly the effect of the proposal on the setting of the Tower of London world heritage site), there is a detailed analysis at paragraphs 32 to 41 of the six criteria for good design set out in paragraph 130 of the NPPF (the six criteria are unchanged from the previous version of the NPPF but it is interesting to see them used in this way):

Function

“…the Secretary of State agrees that the scheme would function properly with regard to delivering a very high level viewing experience together with some exciting fairground-style additions. He further agrees with the Inspector’s comments about the level of skill and effort which has been put into resolving the entrance and exit requirements in such a tight space and the quality of the detailing. However, he agrees with the Inspector’s concerns that the number of visitors would need to be limited to prevent overcrowding at ground level. Overall, he agrees with the Inspector that the extent to which the design would overcome the constraints (of the site) and function well is a matter which should be given moderate weight (IR14.72).

For the reasons given in IR14.73, the Secretary of State agrees with the Inspector that little if any thought has been given to how the building would function over its extended lifetime. He notes that there are no plans for its re-use when it has served its purpose as a viewing tower, or for its demolition. He agrees that if the owner were disinclined with little incentive, it would leave either an unmaintained eyesore or a large public liability, and this counts heavily against its design quality.

• Visually attractive

The Secretary of State agrees with the Inspector, for the reasons given at IR14.74, that while the quality of the presentation materials is of an exceptional standard, achieving the highest architectural quality goes well beyond the level of detailing and presentation. While he recognises that the quality of the presentation materials has made it easier to appreciate how the scheme is designed and how it impacts on its surroundings, he considers that the quality of the presentation materials is not directly relevant to the quality of the design and does not carry weight in this matter.

The Secretary of State agrees with the Inspector that there is some comfort that the attention to detail would be followed through into the finished article (IR14.83). For the reasons given at IR14.75-14.83, he agrees with the Inspector that however carefully detailed, in terms of aesthetics the result would be visually compromised, being neither a continuous flowing object, as with the Gherkin, nor a structure of three distinct parts, as with the Monument (IR14.77). He also shares the Inspector’s reservations about the finish to the concrete of the Tulip (IR14.78-14.79). In terms of symmetry, the Secretary of State agrees with the Inspector that while there have obviously been considerable effort and architectural dexterity employed in modelling the top of the building, the way the gondolas, slide and skywalk have been incorporated into the viewing areas has produced a compromised design that is neither a flamboyant expression nor a consistent elegance (IR14.81).

In terms of overall appearance, the Secretary of State, like the Inspector, finds too many compromises to amount to world class architecture. He considers that taking into account his conclusions in paragraphs 35-36 above and paragraph 46 below, the 8 proposal does not draw support from paragraph 126 of the Framework, which promotes the creation of ‘high quality, beautiful and sustainable buildings and places’.

Sympathetic to local character and history

“…the Secretary of State agrees with the Inspector that the form and materials of the Tulip at its proposed height and location would be a poor and unsympathetic response to the historical context. He considers that this weighs very heavily against the quality of the design, and has reflected this in the very considerable weight attributed to the heritage harm.”

Strong sense of place

“The Secretary of State agrees with the Inspector, for the reasons given at IR14.88 to 14.90, that the base of the Tulip and the Pavilion would create distinctive spaces and the double height arches between the buttresses would be attractive and welcoming alongside the green wall. He further agrees that the sense of drama and expression of structural forces at the base of the Tulip would be striking, and that the Pavilion would be a bright new building with an exciting roof garden at high level. However, he also agrees that the space around the entrances might feel uncomfortable and shares the Inspector’s reservations about the treatment of the Pavilion’s street elevation and how the ground level functions would be achieved. Overall, he agrees with the Inspector’s conclusions that while the scheme would enhance detailed elements of the existing context it would do so at a cost to openness (IR14.90).”

• Optimise the potential of the site

For the reasons given at IR14.91, the Secretary of State agrees with the Inspector that while the scheme would develop this windfall site to the full, and considerable skill has gone into overcoming the functional requirements within such a tight site and turning these into attractively detailed elements, nevertheless, this would not overcome the loss of open space and part of the backdrop to the Gherkin.”

• Inclusive and accessible

“…while the scheme would be generally accessible to all, its inclusivity would be limited by the cost of the main attractions.”

The Secretary of State concludes on design that he “agrees with the Inspector that the approach would be a muddle of architectural ideas and would be compromised, and that the unresolved principles behind the design would mean that in many regards it would fall between two stools. He further agrees that the development would not amount to a design of outstanding quality, and that the quality of design would not be nearly high enough as to negate its harm to the settings of heritage assets.”

“The Secretary of State has gone on to consider these findings against the revised design policies in the Framework. He concludes that those design elements set out above which weigh against the scheme, both in terms of design process and outcome, have greater weight than the positive elements which have been identified. Overall, the Secretary of State agrees with the Inspector at IR14.106 that the proposal would not amount to a design of outstanding quality.”

“In particular, The Secretary of State considers that the revisions to the Framework make clear that the creation of high quality, beautiful and sustainable buildings and places is fundamental to what the planning and development process should achieve (Framework paragraph 126) and he considers this emphasis on design quality to be an important material consideration in this case.”

The Secretary of State has further considered whether there is conflict with government guidance on design. In the light of his conclusions above, and for the same reasons, he considers that the proposal is not in accordance with aspects of the National Design Guide, in particular those elements of the Guide dealing with context and resources. He has taken into account the representation of 7 September made on behalf of the appellant which refers to the National Design Guide and the evidence submitted to the inquiry. However, as above, because of significance of the areas of conflict, and the resultant degree of harm, overall he considers that that the proposal does not reflect government guidance on design. He considers that design as a whole carries significant weight against the proposal.”

It is well worth reading the more detailed analysis in inspector David Nicholson’s report. Given public discourse about the “beauty” agenda, reflected in the revised NPPF and national model design code, he makes this interesting comment:

“I did not pursue the notion of beautiful found in the draft NPPF. It is evident, for all the reasons that they set out, that the Appellant and its supporters consider that the scheme would be beautiful while objectors think it would not. While I certainly accept that innovative designs can be beautiful, in other regards I consider that the concept of beauty or otherwise for this appeal is in the eye of the beholder and that any further discussion is unlikely to be helpful”.

Amen to that.

Brighton Marina

Image courtesy of the Outer Harbour Development Company Partnership

The Secretary of State dismissed an appeal by the Outer Harbour Development Company Partnership in relation to the non-determination by Brighton and Hove City Council of an application for planning permission for phase two of a phased residential-led mixed use development at Brighton Harbour Outer Harbour. On design, the decision letter dated 11 November 2021 includes the following:

For the reasons given he agrees with the Inspector that the various spaces want for discipline and overall there are not enough ‘events’ or ‘signposts’ to make for a properly legible route across the site (IR11.17). Furthermore, he agrees with the Inspector that in terms of the regularity of the façade treatments, and the homogenous mass that would be created, together with the failure to provide a proper landmark or bookend, the scheme lacks the exuberance and ambition that the best of Brighton’s seaside buildings exhibit. He also agrees that it would not, therefore, be a positive contributor to its context and in many respects, it would fail to take the great opportunity the appeal site presents (IR11.22).

“The Secretary of State agrees with the Council that the updated NPPF gives even stronger weight to the need to follow local design guidance. For the reasons given in this letter, he agrees with the Council’s assessment of the areas of conflict with the UDF. He has taken into account the Appellant’s representations on the matter. However, given the significance of the areas of conflict, and the resultant degree of harm, particularly in respect of heritage, harm to the setting of the National Park and living conditions, he considers that overall there is conflict with the newly adopted UDF, this being a material consideration in its own right. In the light of this conclusion, he considers that overall the proposal fails to reflect local design policies, as required by paragraph 134 of the Framework. He further considers that it fails to reflect the elements of paragraph 130 relating to layout, the requirement to be sympathetic to local character and history, establishing a strong sense of place and providing a high standard of amenity.

The Secretary of State has further considered whether the proposal reflects government guidance on design. In the light of his conclusions above, and for the same reasons, he considers that the proposal is not in accordance with the aspects of the National Design Guide dealing with context, layout, form, appearance, external appearance and public spaces. He has taken into account the appellant’s statement in their representation of 5 August that the provisions set out in paragraph 134 of the revised Framework are covered within Mr Aspland’s POE, which sets out how the landscape design proposals meet the relevant objectives of the National Design Guide. However, as above, because of significance of the areas of conflict, and the resultant degree of harm, overall he considers there is conflict with the National Design Guide. He therefore agrees with the conclusion in the Council’s representation of 24 August that the proposal does not reflect government guidance on design.

Overall, the Secretary of State considers that the shortcomings in terms of the failure to accord with the provisions of the revised Framework carry significant weight against the proposal.”

Taken together, it is clear that care is needed to ensure that proposals are indeed consistent with the revised chapter 12 (“achieving well-designed places”) of the NPPF. But how? On Tuesday 23 November 2021 at 4.30 pm I’m participating in a Montagu Evans webinar: “Planning for beauty, or the “provably popular”. A new urban design agenda?” which I hope will explore the practical implications. I will be joining Chris Miele (Montagu Evans), Charles Banner QC (Keating Chambers) and leading architect Deborah Saunt, one of the founding directors of DSDHA. If of interest please do register here.

In consequence, there will be no Planning Law Unplanned session on Tuesday. You will have to make do with listening back to last week’s session – featuring Zack Simons, as mentioned above, along with Kate Olley, who discussed last month’s Sage case.

Simon Ricketts, 19 November 2021

Personal views et cetera

Stonewater – Paper – Scissors

We all had a good, evidence-based, moan about CIL on clubhouse last week.

Stonewater (2) Limited v Wealden District Council (Thornton J, 15 October 2021) is of course only the latest example of the complexities and uncertainties that arise – in particular on the question of application of reliefs and exemptions (the importance and number of which has been driven by the fact that CIL liability is in most cases so significant) but also on the question of how to mesh the operation of the CIL regime with the operation of the planning system without jamming the whole thing up.

There are plenty of good summaries and critiques of the judgment by now (for instance this Town Library summary by my colleague Safiyah Islam, or this 18 October 2021 blog post by Nicola Gooch, CIL, S.106 Agreements & Affordable Housing Relief: What happens when the housing crisis hits political reality).

This is my take:

Land with planning permission for 169 houses was acquired by Stonewater, a registered provider of affordable housing. The section 106 agreement provided for 59 dwellings within the development to be affordable housing, with a specified tenure mix. The number of affordable housing units was to “comprise 35% of the Dwellings within the Phase (which shall be rounded up to the nearest whole unit”.

Stonewater’s model was more enlightened than that of the developer which had secured the permission. Stonewater “regularly acquires sites which are subject to a section 106 agreement which secure a low or policy compliant level (35%) of affordable housing, with a view to increasing affordable housing delivery to 100%. The Court was told that this is not unusual, and the Claimant is not alone in doing so. Grants from Homes England are based on the principle that registered social housing providers provide additional affordable housing over and above the levels secured in planning obligations.”

Relief from CIL is available for affordable housing via social housing relief. There are criteria set out in regulation 49 of the CIL Regulations which do not include any requirement that the affordable housing is secured by way of section 106 agreement or condition. After all, if there is a clawback period of seven years within which CIL has to be paid with interest if the occupation no longer meets the criteria for relief.

Unsurprisingly, Stonewater sought social housing relief for the whole development, given that it proposed to deliver it all as affordable housing meeting the criteria in regulation 49. The council refused relief on the basis that a varied section 106 agreement would first be required, committing in the agreement for all the dwellings to be delivered as affordable housing. The council later additionally argued that the existing section 106 agreement was to be interpreted as rendering it unlawful for more than 35% of the dwellings to be delivered as affordable housing.

It might be asked why Stonewater didn’t simply enter into the section 106 agreement required – but of course that would have been likely to destroy its entitlement to Homes England funding given that on the face of it there would then be no additionality, and why should it enter into a further agreement if that was not required by the Regulations? Stonewater challenged the council’s decision by way of judicial review. The first issue melted away once the Secretary of State was joined as an interested party and the council conceded that a section 106 agreement obligation that a dwelling be delivered as affordable housing is not a prerequisite to a claim for social housing relief (although it can be useful evidence that the dwellings will be used in a way that meets the criteria for relief) – as did any notion that the relief is discretionary on the part of the authority rather than mandatory. So the only question was whether delivery of more than 35% of the homes would be in breach of the section 106 agreement.

The judge saw the 35% requirement as fixed, not a minimum:

“In my assessment, the language of the document points to an interpretation that the agreement controls the amount of affordable housing that can come forward, by fixing a specific requirement of 59 dwellings or 35% affordable housing. Paragraph 2(iii) of Schedule 1 says that precisely 35% of the units in any phase must be affordable. Accordingly, if the development proceeds in multiple phases, there must be 35% in each phase and thus, inevitably, as a matter of maths, 35% in aggregate. This specific requirement permeates the definitions, which draw a clear distinction between the ‘Affordable Housing Units’ which are “the 59 Dwellings … which shall be for use as affordable housing” and ‘the Private Dwelling Units’ which means everything other than the 59 Dwellings. Paragraph 3 of Schedule 1 provides the mechanism whereby the Council can exercise control in all cases (not just multiple phases) over the provision of affordable housing. The, broadly defined, Affordable Housing Scheme must be submitted for approval and development may not commence until the Council has approved it.

Accordingly, a scheme which provides less, or more units, of affordable housing would not comply with the section 106 requirement to provide 59 units and hence would be contrary to its terms and to that extent unlawful, albeit the Council would have a discretion to vary the Section 106 agreement or enter into a new agreement.”

I must say I find this a strained interpretation. As the claimant pointed out, there would be no reason in policy to restrict the amount of affordable housing in the scheme – why should the developer not be free to dispose of any of the dwellings at less than market value? Indeed, although not I think mentioned in the judgment, how would such a restriction meet the test in regulation 122? Would an authority really succeed in arguing that a developer was in breach of its section 106 agreement if it disposed of market units at less than market value? Of course not.

The judge asserted that “whilst affordable housing is generally desirable in policy terms, it does not follow that more affordable housing is always desirable without limit. There may be proper planning reasons to prefer a mixed scheme. For example, in this case, the Court’s attention was drawn to extracts from the Planning Officer’s report which suggest the expected CIL receipts from a scheme with 35% affordable housing were relevant to the decision making. The highways authority had expressed concern about the potentially severe impact from the development on the local highway network and considered mitigation was required. It was common ground that the necessary mitigation was to be funded by the CIL receipts from the development. However, it is neither necessary nor appropriate for this court to evaluate any preference for a mixed scheme on the facts of this case. It is sufficient to say that it is in accord with the statutory planning context, and / or “common sense”, to have a section 106 agreement which retains control over the provision of affordable housing. This does not defeat the achievement of more affordable housing since the Council, in the exercise of its planning judgment, may vary the Section 106 to permit this, if persuaded of its desirability.” However, how does this sit with the council’s position that it would grant the relief simply if Stonewater entered into a section 106 agreement varying the previous arrangements and requiring all the dwellings to be affordable?

Surely, instead, this was an overly prescriptive reading of the Regulations on the part of the authority and a strained interpretation of the section 106 agreement on the part of the judge? It is truly depressing to think about how long commencement of development is held up on schemes until disputes such as this are resolved – and how so much money has been wasted on all sides.

Simon Ricketts, 13 November 2021

Personal views et cetera

This week’s Planning Law Unplanned delicacies on clubhouse, at 6pm on Tuesday 16 November, will be Sage and Tulip. We’ll be hearing from Kate Olley, who appeared for Mr Sage in the recent High Court case on the important and topical question as to when planning permission is needed to run a business from home, and we’ll be discussing the Secretary of State’s refusal of planning permission for the Tulip in the City of London. Aside from Kate, our guests include arch-planorak, barrister Zack Simons. Thoughts on the decisions? Then join us, to listen or participate. Link to app here.

Courtesy wikipedia