In A Cycle Superhighway In The Sky

The high ambition on the part of successive London Mayors since 2008 to create a network of (mostly) segregated cycleways across London has often been controversial and often impeded due to differences arising with individual boroughs.

Cyclists, please put me right if I have got any of this this wrong but I think there are now eight operational routes:

CS1 – Tottenham to the City

CS2 – Aldgate to Stratford

CS3 – Barking to Tower Gateway

CS3 (East-West) – Lancaster to Tower Hill

CS5 – Oval to Pimlico

CS6 – North-South – Farringdon to Kings Cross (Consultation started on 20 September 2018 on an extension to CS6 between Farringdon and King’s Cross, so that it will run from Elephant & Castle all the way up to King’s Cross.)

CS7 – Merton to the City

CS8 – Wandsworth to Westminster

Further routes have been long planned but are not yet open:

CS4 – London Bridge to Woolwich

CS9 – Hyde Park to Hounslow

CS10 – Cricklewood to Marble Arch

CS11 – West Hampstead to Hyde Park Corner

For more detail see London Cycling Campaign’s website.

The Mayor announced on 30 January 2018 that design work would begin on six new routes, namely:

• Lea Bridge to Dalston – 3km route between Lea Bridge Road and Cycle Superhighway 1 at Dalston.

• Ilford to Barking Riverside – 8km route between the town centres of Ilford and Barking.

• Hackney to the Isle of Dogs – 8km route from Hackney to the Isle of Dogs via Canary Wharf, Mile End and Victoria Park.

• Rotherhithe to Peckham – 4km route to connect with connect other cycling routes such as Quietway 1 and the proposed Cycle Superhighway 4.

• Tottenham Hale to Camden – 8km route covering seven junctions identified as being among the 73 with the worst safety records.

• Wembley to Willesden Junction – 5km route, north-west London’s
first major cycle route, connecting Wembley, Stonebridge Park and Willesden Junction.

Works to convert road carriageways to a cycleway do not amount to development requiring planning permission if they fall within section 55(2)(b) of the Town and Country Planning Act 1990: “the carrying out on land within the boundaries of a road by a highway authority of any works required for the maintenance or improvement of the road but, in the case of any such works which are not exclusively for the maintenance of the road, not including any works which may have significant adverse effects on the environment“.

In R (The Licensed Taxi Drivers Association) v Transport for London (Patterson J, 10 February 2016) the LTDA sought a declaration that the construction of the East-West Cycle Superhighway without planning permission constituted a breach of planning control.

This was rejected by Patterson J:

“...whether the proposals cause significant adverse environmental effect is not for the court to decide. As Sullivan J (as he then was) said in R v Rochdale Metropolitan Borough Council ex parte Milne [2001] 81 P&CR 27 at [106] to [108] the issue of environmental effect is an issue which requires an exercise of planning judgment which is not for the court. The issue for the court is whether the defendant erred in its contention or was irrational in reaching the conclusion that the works for the EWCS did not cause significant adverse environmental effect and did not require planning permission. For reasons that I have set out I am satisfied that the defendant on the evidence before it at the relevant time, did not err in law and was not irrational in reaching its conclusion that there was no significant adverse environmental effect from the proposals as a whole.”

Whether or not planning permission is required, on the facts, for any proposed cycleway, traffic regulation orders are required. Where the road is part of the local highway network rather than a TfL road, TfL needs the agreement of the relevant borough in order to secure all necessary orders. This was what of course recently scuppered TfL’s proposed pedestrianisation of Oxford Street.

The TfL road network:

Westminster City Council has also now successfully challenged TfL’s proposed construction of CS11, designed to run between Swiss Cottage and Portland Place, in R (City of Westminster) v Transport for London (Sir Ross Cranston, 13 September 2018), having taken over proceedings commenced by a group of local residents. Two parts of the route are on roads for which Westminster City Council is the statutory highway authority. Planning permission from the council is also potentially required for works proposed within Regent’s Park. The Council succeeded in its claim that TfL’s decision to proceed with constructing part of the route should have taken into account the legally relevant consideration that TfL might fail to obtain the necessary consents from Westminster City Council in relation to part of the route. TfL’s justification had assumed that the route would be constructed in its entirety and did not consider whether a phased approach would be viable.

It’s difficult entirely to blame the Mayor for these delays in rolling out CS routes. The control held by individual boroughs can be difficult to work around – RBKC having been another particularly intransigent authority – which makes delivery of these, by definition, cross-borough schemes slow and difficult.

Despite the wider strategic benefits of cycling in terms of health and air quality, the TRO statutory process can often be seen by local people as inadequate to protect their particular interests in relation to, for instance, the effects caused by displaced traffic or the implications for them of roads being closed to motor vehicles – leading to adversarial positions being taken.

But whatever the rights or wrongs in relation to CS11 or indeed in relation to the proposed pedestrianisation of Oxford Street, I find it disappointing to see such public disagreements between the Mayor and Westminster City Council. After all, no one wants a London version of the Gallagher brothers.

Simon Ricketts, 23 September 2018

Personal views, et cetera

Planning, Brexit

In all the Brexit noise, like me you may have missed that a draft Bill of Parliament is shortly to be published by DEFRA that will have direct relevance for English planners and planning lawyers.

The European Union (Withdrawal) Act 2018 was enacted on 26 June 2018. As a result of amendments to the Bill introduced in the House of Lords and substantially accepted when the Bill returned to the Commons, section 16 of the Act seeks to secure that “environmental principles” are maintained once we leave the EU and we no longer have the monitoring and enforcement functions currently being carried out by the European Commission and European Court of Justice. It provides as follows:

Maintenance of environmental principles etc.

(1) The Secretary of State must, within the period of six months beginning with the day on which this Act is passed, publish a draft Bill consisting of—

(a)  a set of environmental principles,

(b)  a duty on the Secretary of State to publish a statement of policy in relation to the application and interpretation of those principles in connection with the making and development of policies by Ministers of the Crown,

(c)  a duty which ensures that Ministers of the Crown must have regard, in circumstances provided for by or under the Bill, to the statement mentioned in paragraph (b),

(d)  provisions for the establishment of a public authority with functions for taking, in circumstances provided for by or under the Bill, proportionate enforcement action (including legal proceedings if necessary) where the authority considers that a Minister of the Crown is not complying with environmental law (as it is defined in the Bill), and

(e)  such other provisions as the Secretary of State considers appropriate

(2) The set of environmental principles mentioned in subsection (1)(a) must (however worded) consist of—

(a)  the precautionary principle so far as relating to the environment,

(b)  the principle of preventative action to avert environmental damage,

(c)  the principle that environmental damage should as a priority be rectified at source,

(d)  the polluter pays principle,

(e)  the principle of sustainable development,

(f)  the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,

(g)  public access to environmental information,

(h)  public participation in environmental decision-making, and

(i)  access to justice in relation to environmental matters.”

This was not a big concession for the Government to make. In January 2017 the Commons Environmental Audit Committee recommended that the Government introduce an Environmental Protection Act to ensure that environmental enforcement and governance mechanisms were not lost after leaving the European Union.

The Government committed to consulting “early in 2018” on “establishing a new, world-leading, independent, statutory body to give the environment a voice, championing and upholding environmental standards as we leave the European Union” in DEFRA’s 25 Year Environment Plan (11 January 2018)

In England DEFRA on 10 May 2018 started a consultation process, Environmental Principles and Governance after EU Exit, which closed on 2 August 2018. The consultation paper indicates that the proposed Environmental Principles and Governance Bill will be published in draft in “Autumn 2018“, although as a result of section 16 the absolute statutory deadline for publication of the draft is 26 December.

The Environmental Principles and Governance Bill will need to provide for:

⁃ the formulation of a set of environmental principles to be adhered to; and

⁃ the establishment of an independent body to enforce environmental law.

The DEFRA consultation paper does not go into much detail. It sets out the following basic position:

Where environmental principles are contained in specific pieces of EU legislation, these will be maintained as part of our domestic legal framework through the retention of EU law under the EU (Withdrawal) Bill. Any question as to the interpretation of retained EU law will be determined by UK courts in accordance with relevant pre-exit CJEU case law and general principles, subject to the other exceptions and restrictions within the Bill. For example, CJEU case law on chemicals, waste and habitats includes judgments on the application of the precautionary principle to those areas. This will therefore be preserved by the Bill.” (paragraph 26)

The consultation paper invites views from consultees as to whether the environmental principles (without giving any detail as to what these principles will look like) should be articulated in the Bill itself or should be left to be addressed in a subsequent statutory policy statement.

The list of environmental principles in section 16 (2) is plainly potentially relevant to every aspect of the planning system, but we need to see the detail!

The consultation paper proposes the following in relation to the proposed independent body:

Objectives for the establishment of the body are that it should:

⁃ Act as a strong, objective, impartial and well-evidenced voice for environmental protection and enhancement.

⁃ Be independent of government and capable of holding it to account.

⁃ Be established on a durable, statutory basis.

⁃ Have a clear remit, avoiding overlap with other bodies.

⁃ Have the powers, functions and resources required to deliver that remit.

⁃ Operate in a clear, proportionate and transparent way in the public interest, recognising that it is necessary to balance environmental protection against other priorities. ”

There is a specific section in the consultation paper in relation to the potential relevance of the body to the operation of the planning system:

Interaction with the planning system

133. Planning aims to ensure that the right development happens in the right place at the right time, benefiting communities and the economy. It plays a critical role in identifying what development is needed and where, what areas need to be protected or enhanced and in assessing whether proposed development is suitable.

134. The new body’s functions in relation to environmental aspects of the planning framework would need to work alongside, while ensuring clear boundaries between, the established systems in place for scrutiny of and appeal against planning decisions and development plans. The intention would be that individual decisions made under relevant planning legislation would continue to be handled under the existing processes.

135. As with other areas of environmental law, we need to consider how the body would interact with the existing planning system in relation to environmental laws that apply to planning activities, notably those concerning implementation of habitats regulations assessments, environmental impact assessments and strategic environmental assessments. This should not be a case-by-case review of decisions regarding development plans and proposals, which would be duplicative and would amount to another tier in the planning process. The body would have no role in individual planning policy decisions. The focus of the new body would therefore be on ensuring the correct application of relevant environmental law within the planning system.

136. In relation to wider planning policy, the body could have two roles. Firstly, it could be a key consultee, when certain planning policy is being considered, for example when the National Planning Policy Framework is updated. Furthermore, if the body has a wider policy role, it could provide advice on the implementation of the environmental aspects of existing planning policy and suggest future potential changes. The government would not be bound to agree to such suggestions, but should consider them alongside wider policy aims

All sorts of questions of course arise from these proposals:

– how detailed will the environmental principles be? Will the principles contain targets in the manner of DEFRA’s 25 Year Environment Plan (11 January 2018) or will they be a generic summary of the principles currently underlying EU environmental legislation along the lines of, for instance article 191 of the Treaty of the Functioning of the European Union (and if so how useful will they be?).

⁃ to the extent that the principles, such as the “principle of sustainable development” overlap with existing guidance, for instance within the NPPF, will the principles (having a statutory basis) be relevant to decision making in relation to applications and appeals and to plan making? How can we avoid unanticipated effects in that regard? Even if the intention is to retain the status quo, at least for the time being, how easy will that be?

⁃ will Parliament kick the can down the road by relegating the principles to a statutory policy statement, for how long will this be, what will be the consultation process, what voting process will be required within Parliament and what will be the mechanism for making subsequent amendments?

⁃ Surely it is for the courts to ensure “the correct application of relevant environmental law within the planning system“? Non-legally binding views from this new authority on the way in which the law is to be interpreted, beyond views already formally expressed by ministers or government bodies such as the Environment Agency, Natural England or Historic England, may just add confusion.

⁃ how can a body be created which does not overlap with existing bodies such as the Environment Agency, has a “baked in” constitutional status and which is not susceptible to lobbying and repeated judicial reviews?

⁃ whilst the proposed body is not intended to be embroiled in individual planning decisions, what safeguards will there be as to its potential influence on planning outcomes in other ways, for instance through expressing views on types of development?

⁃ to what extent will there be coordination and consistency as between England and the devolved nations?

⁃ depending on the nature of any Brexit transitional arrangements, what about the interregnum between the cessation of the European Commission and European Court of Justice’s jurisdiction and the establishment of new regimes within England, Wales, Scotland and Northern Ireland? 26 December 2018 is only the deadline for the draft Bill. How long before the Bill itself is introduced, enacted and brought into force, with this new body up and running? If we have a “deal” and a transition period, time will be tight but there may not be a gap. If there is “no deal”, there will be a period before the promised structure is in place, indeed there will be no environmental principles in place, nor an independent body to ensure compliance.

The Commons Environmental Audit Committee has been conducting the Environmental Governance Consultation Paper Inquiry seeking answers to a number of questions along these lines. Michael Gove gave evidence to the inquiry on 11 July 2018. The session is pretty unedifying with much attempted point scoring but there are some interesting exchanges.

For example, the Committee chair asked how the policy statement for the principles will be developed and scrutinised:

Michael Gove: I think that it would be developed within the Government, like any other policy statement. An analogy has been drawn—no analogy is perfect—with the National Planning Policy Framework. I would propose or suggest that the Government draw up their policy statement. Obviously it would be up to any Government Minister as to how they would set about gathering evidence, consulting, and making clear what the means might be for shaping that policy statement. Then I hope that it would be presented to the House of Commons and then debated and voted on in the House of Commons.

Chair: That is where the row is going to happen again, is it not? Across Government the rows will come back in from Treasury, from DCLG, and from Transport about how this is not going to be accepted by Ministers. Then you are going to have all the green groups and the NGOs rightly asking for much higher standards. What is the process of engaging with the public? You are saying there is a legal policy process in the Government. How long will the public have to look at this statement?

Michael Gove: That is a very fair point. One of the things is we want to have it debated and voted on in Parliament, to take the concerns you have. Were there to be a future Government Minister in another Government Department that wanted in some way to include in the policy statement things that you or I might think were not necessarily a good idea for the better protection of our environment, were that hypothetical future Minister to prevail in the shaping of the policy statement in a way that you or I might not altogether approve of, when it came to the House of Commons I think it would be the case that the NGOs that you mention and members of the public or you or I might say, “Hmm” and would seek therefore to say, “I am sorry, as you bring this forward, I do not think you will necessarily get a majority in the House of Commons for this provision, because it will be seen as weakening protection. Therefore, we in the House of Commons will not stand for it”.

In the same way as the House of Commons and the House of Lords together amended the EU (Withdrawal) Bill in a particular way, so I could see a situation in the future where the prospect of defeat in the House of Commons for a particular proposition might lead the Government to then amend their policy statement so that the hypothetical Minister in a future case who might have wanted to weaken protections would find that his or her ambitions were thwarted by the democratic majority in the House.”

The Committee had originally hoped to conclude the inquiry by DEFRA’s consultation deadline of 2 August but we still await its report. I hope that its conclusions will be able to be taken into account by DEFRA before it proceeds to publish its draft Bill, although I suspect we have a long way to go before an actual set of principles starts to emerge, alongside a clearer idea as to the nature of the authority that is to hold the ring on all of this.

In the meantime of course, existing legislation will need to be scrubbed free, via statutory instruments, of any references to EU law, to be replaced by references to the relevant EU legislation frozen at time of exit or relevant domestic legislation, but that will not be where the substantive effects are likely to be felt. Instead, watch out for the draft Bill and surrounding announcements and let’s be alert for any unintended implications for our town and country planning system.

Simon Ricketts, 18 September 2018

Personal views, et cetera

London Plan Examination Update

We are now clearer as to what lies ahead, for the next year at least: the documents and deadlines are beginning to come thick and fast.

The appointed panel of inspectors (Roisin Barrett, William Fieldhouse and David Smith) set out this timetable in their Panel Note No 1 (August 2018):

• End of August 2018 – Panel consult the Mayor on a draft list of matters and participants.

• Mid September – Publication of draft list of matters and participants.

• Mid October – deadline for comments on draft list of matters and
participants.

• Early November – Technical seminars (if necessary).

• Early November – Publication of final list of matters and participants (at
least 6 weeks before EIP starts).

• Early December – first deadline for written statements in response to EIP
matters.

• Mid January to May 2019 – EIP hearing sessions.

• Summer 2019 – Panel report.

Over 20,000 representations to the draft plan were received from around 4,000 individuals and organisations (the GLA website has a useful link to them).

The Panel published today, 14 September 2018, its:

Panel Note no 3

draft list of matters for consideration at the EIP

draft list of participants

There will be a maximum of 22 participants at each session. Those who have not been invited to appear have an opportunity until 11 October 2018 to make representations as to why they should be invited.

The Panel asked the Mayor a series of preliminary questions in their Panel Note no 2 to which he responded earlier this month. The exchange encapsulates some of the main themes that lie ahead such as:

⁃ whether all of the policies can be justified as of strategic importance

⁃ the extent to which there is or is not agreement with the London boroughs and other relevant interests

⁃ the extent to which the draft plan deviates from national policies and guidance eg in relation to the application of affordable housing requirements with regard to small sites, the vacant building credit and the green belt

⁃ the extent of cooperation with other authorities, regardless of whether the duty to cooperate formally applies.

The Mayor published on 13 August 2018 600 or so pages of “early suggested changes” to the draft plan, which are minor in nature (see Lichfields’ summary for some of the headline changes).

It is difficult to keep up! For instance, I would also draw attention to a July 2018 practice note on how public sector land is defined for the purposes of the 50% affordable housing threshold in the affordable housing and viability SPG and policy H6 of the draft plan.

I referred in my 5 August 2018 blog post Housing Needs, Housing Shortfalls to the Secretary of State’s letter dated 27 July 2018 to the Mayor of London, setting out the changes that the Secretary of State wishes to see to the current draft London Plan, as well as the need for a more fundamental review once it is adopted. It is interesting to note that MHCLG is an invited participant in relation to a number of the examination sessions.

My 23 April 2017 blog post, Make No Little Plans: The London Plan set out the statutory constraints that apply to the London Plan and the difficulties that previous London Mayors have faced in securing an adopted plan until late in their first term.

Would a simpler, more focused, perhaps less ambitious plan have stood more chance of early adoption? That May 2020 election is going to come round very quickly.

Simon Ricketts, 14 September 2018

Personal views, et cetera

What If? The Trinity One Case

What if your development were subject to a section 106 agreement that provided for a commuted sum to be paid towards affordable housing, the precise amount payable to be calculated in accordance with a formula; at the date that the agreement was completed in 2003 the formula would have arrived at a commuted sum of between £500,000 and £700,000 but by the time that it was triggered the basis for calculating the formula had been abolished and so there was no way of arriving at an appropriate figure? Would you go to the High Court and Court of Appeal to seek to resist a claim from the local planning authority that was seeking a sum of £533,058 plus interest?

Well that was what the developer did in the Council of the City of York v Trinity One (Leeds) Limited (Court of Appeal, 21 February 2018). Not only that but they pursued a separate section 106BA and BC application and appeal, before the 30 April 2016 deadline for applications under that procedure, to seek to argue that in any event it should be released from the obligation in order to prevent its development from being economically unviable (a process where it is separately currently pursuing a second judicial review). I don’t know the facts beyond what is stated in the Court of Appeal’s judgment but I would suspect that this saga must pretty much have cost the parties in legal fees the sum being fought over and there remains the possibility of the local planning authority losing out on a substantial contribution towards affordable housing. Mediation anyone?

Hindsight is of course a wonderful thing but the dispute has arisen from not enough “what if?” questions being asked when the agreement was negotiated in 2003.

The relevant clause in the agreement provided that the commuted sum “shall be calculated on the amount of Social Housing Grant necessary to secure affordable rented homes of an equivalent type and size on another site [in a similar residential area in the City of York] which grant for the avoidance of doubt shall be calculated at normal grant levels from regional TCI tables provided on an annual basis by the Housing Corporation or such equivalent grant calculation current at the time and supported by the Housing Corporation”.

Social Housing Grant was defined as “the grant that may be provided in respect of affordable housing in the Council’s administrative area in accordance with Government and Housing Corporation Guidance.”

Some of you may remember the Total Cost Indicator tables that were previously used by the (now defunct) Housing Corporation as a basis for calculating the level of (now defunct) Social Housing Grant.

The lawyers negotiating the agreement at least had asked themselves what if TCI tables were no longer provided on an annual basis by the Housing Corporation but beyond that there was little imagination as to how far the affordable housing funding arrangements might change: if TCI tables ceased to be published, the calculation was to be done on the basis of “such equivalent grant calculation current at the time and supported by the Housing Corporation”. Hmm. No “what if social housing grant and/or the Housing Corporation cease to exist“? No provision for the parties to agree another reasonable benchmark, with the ability to go to an independent expert in the event of dispute?

The Court of Appeal identified that the issue “turns on the balance between giving effect to the intention of the parties and the language of the contract“. It upheld the ruling of the High Court that the clause was not unenforceable due to the lack of certainty as to how the sum was now to be calculated. The court sets out in some detail the approach to be taken, drawing upon principles articulated by the Supreme Court in Arnold v Britton (Supreme Court, 10 June 2015).

The Supreme Court in that case had considered the interpretation of service charge contribution provisions in the leases of a number of chalets in a caravan park in South Wales, and whether annual increases in service charge were to be calculated on a compound basis, resulting in absurdly high increases. Lord Neuberger summarised the correct approach as follows:

When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean”, to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 14. And it does so by focussing on the meaning of the relevant words, in this case clause 3(2) of each of the 25 leases, in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions.”

Lord Neuberger set out six principles and the Court of Appeal in Trinity One drew particularly the first and sixth:

First, the reliance placed in some cases on commercial common sense and surrounding circumstances (eg in Chartbrook, paras 16-26) should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision.”

Sixthly, in some cases, an event subsequently occurs which was plainly not intended or contemplated by the parties, judging from the language of their contract. In such a case, if it is clear what the parties would have intended, the court will give effect to that intention. An example of such a case is Aberdeen City Council v Stewart Milne Group Ltd[2011] UKSC 56, 2012 SCLR 114, where the court concluded that ‘any … approach’ other than that which was adopted ‘would defeat the parties’ clear objectives’, but the conclusion was based on what the parties ‘had in mind when they entered into’ the contract (see paras 17 and 22).”

Applying these principles, the Court of Appeal in Trinity One identified that:

⁃ the intention of the parties was that a commuted sum was to be paid.

⁃ the uncertainty related to quantification rather than the principle of payment.

⁃ “It would defeat the underlying purpose of the Agreement if the clause were unenforceable due to lack of certainty. The consequence would be that TOL would receive the benefit of planning permission without providing affordable housing or a commuted sum. In simple terms, that was not the bargain.”

⁃ “…the quantification of that sum should be that which is equivalent to the amount of money which would have been provided had the SHG remained in being. Although this is a departure from the literal words of the contract, this is the only sensible solution to the problem posed by the abolition of the SHG on which the clause is premised. The clause provides that the developer should pay enough money so that the Council can provide equivalent affordable housing: the best the court can do is work out a roughly equivalent figure for that sum.”

⁃ The figure that had been arrived at of £533,508 was a “reasonable attempt to reach a figure equivalent to the SHG which would have been payable before 2006“.

To a non-lawyer this may all seem obvious, but who wants to go to the Court of Appeal to establish what a provision means, just because not enough “what if” questions weren’t asked at the outset?

York Council isn’t yet entirely out of the woods. I mentioned the pending judicial review in relation to the developer’s section 106BC appeal. The Court of Appeal held that if the section 106BC appeal is ultimately successful, it will have retrospective effect notwithstanding that the council’s rights to be paid had already accrued. That seems strange to me, but given that the section 106BA and BC procedure is no longer available, this issue is of limited continuing wider relevance.

So please remain patient when your solicitor asks you yet another series of “what if” questions. In another part of our legal world, the European Medicines Agency is reported to be seeking to set aside its lease at Canary Wharf on the basis that Brexit will amount to an event of frustration. It was reported elsewhere that the “what if” question may in fact have been asked and then set on one side. Now that can be even more awkward.

This blog post is a belated companion to my 14 October 2017 post, Flawed Drafting: Interpreting Planning Permissions.

Simon Ricketts, 8 September 2018

Personal views, et cetera

Market Value Minus Hope Value = ?

Stop me if you’ve heard this song before but…

The clamour continues for Parliament to revise the principles of compulsory purchase compensation, currently set out in section 5 of the Land Compensation Act 1961.

None of the clamourers have, as far as I know, set out precisely what amendments they would make to section 5, but the concern appears to be that the principles allow land owners to benefit unduly from a windfall, by allowing them in part to be compensated for the hope that planning permission would have been granted for a valuable form of development on the land being acquired, were it not for the compulsory acquisition, and that this is unfair; goes beyond what might be considered to be “market value”, and/or is holding back the development of new homes.

This isn’t a new song. In my 20 May 2017 blog post, Money For Nothing? CPO Compensation Reform, Land Value Capture, I tried to read between the lines of what was being said in the February 2017 housing white paper and in the May 2017 Conservative manifesto on the question of reforming the compulsory purchase compensation process.

But the volume is getting louder.

The issue is being considered by the House of Commons Communities and Local Government Select Committee in its land value capture inquiry, the final session of which is on 5 September 2018, with evidence to be given at that final session by planning minister Kit Malthouse.

A pan-political coalition of 16 NGOs including Shelter, the National Housing Federation, the TCPA, CPRE and Crisis wrote an open letter to the Secretary of State on 18 August 2018 calling for reform. It was reported in absurd terms on the Sun that day:

A little more (but not much more) detail is set out in Shelter’s blog post An unlikely coalition for land reform (21 August 2018). Shelter has been lobbying on this issue, from the time that its head of policy and housing development was Toby Lloyd, now Theresa May’s housing adviser within Number 10.

The IPPR think tank (one of the signatories to the open letter) has also now published a report The Invisible Land: The hidden force driving the UK’s unequal economy and broken housing market (28 August 2018). It has the same tune:

I hesitated before writing this blog because the response is so obvious.

The law does not operate at all in the way that these people assume. No real life examples are given. Indeed, there is no indication that any practising CPO surveyor or lawyer has assisted with either the Shelter-led group’s work or the IPPR’s work. Show of hands?

The law is as set in, for example:

⁃ the written evidence submitted to the Select Committee inquiry by the Compulsory Purchase Association. The evidence includes examples of claims made following the Olympic Park CPO.

⁃ Jonathan Stott’s blog post Land value capture – Wild goose chase could lead to changing compulsory purchase legislation for the worse (11 June 2018)

⁃ Richard Harwood QC’s article (August 2018) (with his April 2018 paper given to the Compulsory Purchase Association on Land Value Capture a useful more detailed and wide ranging read).

It’s odd how the pendulum slowly swings. The refrain always used to be that the compensation system, providing the land owner with equivalence and nothing above that to reflect the compulsory nature of the acquisition, encouraged elongated objections and disputes in a way that apparently was not the case in, for example, France. Parliament (under a Labour Government), sought to address that in the Planning and Compulsory Purchase Act 2004 by introducing home loss payments, for qualifying residential occupiers, amounting to 10% of the market value of their interest up to £61,000 and, for qualifying property investors and business owners, basic loss payments amounting to up to 7.5% of the market value of their interest up to £75,000, together with additional occupier loss payments amounting up to 2.5% of the market value of their interest up to £25,000. In retrospect, the numbers were probably not large enough materially to affect the behaviour of those faced with compulsory purchase but the principle is perfectly logical given the monies to be saved by the public purse in removing or reducing objections to compulsory purchase.

It’s not rocket science to deduce that threatening to acquire land at less than market value (ie less than what the owner could have received for the land if he or she had chose to sell it on the open market – albeit of course the last thing he or she usually wants is to sell it!) would lead to:

⁃ owners being even more likely to hold out against compulsory acquisition in whichever way they can.

⁃ if the hope of securing permission for development is to be ignored (accepting that a land owner can never claim compensation for any value generated by the scheme underlying the compulsory acquisition – we are only talking about the prospect of development in the no scheme world), land owners and promoters of development not risking their own money in the promotion of land for development. Why would they, if the acquiring authority is going to be able to step in and effectively take the benefit of that work for free?

Maybe the problem is one of terminology. Do people think that “hope” value is something that is just that, hope, rather than a forensic examination of whether, and if so, what, development would have been likely to be approved if the scheme underlying the CPO had been cancelled on the valuation date? Maybe they should read some decisions of the Lands Chamber of the Upper Tribunal (the Lands Tribunal, in old money) or of the courts, for instance last year Bridgend County Borough Council v Boland (Court of Appeal, 14 July 2017). Do they think that the Tribunal has ever been over-generous to a claimant in reaching its determination as to what might have been approved in the no scheme world? Examples would at least take the debate forward.

The IPPR paper points to Germany by way of example, where the German zoning system obviously largely removes the concept of hope value – you’re zoned or you’re not. But that is not at all our UK planning system. Should it be? Well that’s another interminable debate and shall we get Brexit out of the way first before, er, we move towards a continental planning system?

Of course, the idea might work as part of a system where all major development is promoted by a public body, whether or not backed by a private sector development partner. But that is a world away from where we are, is alien to our market based economy and likely to lead to long bottle-necks given the lack of suitable resources at present within most local authorities, as well as lead to questionable outcomes in terms of procurement and in terms of sustainable, economically efficient, development. The public sector does not even have the resources to allocate the right land for development without massive input from the private sector in promoting specific sites (terminology problem again – “promoting” isn’t about PR but about spending, at risk, large amounts of money on preliminary technical work, to a significant level of detail, to ascertain constraints, infrastructure requirements and capacity).

And of course, there may be political arguments for acquiring land compulsorily at less than market value. But let’s be clear that such an exceptional political intervention would need to be justified. If the current clamour is in truth a clamour for the state to be able to dispossess people of their property for less than what it is worth, be brave enough to say so, explain why it is necessary in the public interest and then we can have the debate on that footing.

But if the idea is indeed to pick up land at or near existing use value, conceptually that really isn’t difficult under the present system. Be a brave authority by allocating land for a new settlement, covering land in as many ownerships as is necessary, making clear that of course it has to be developed in its entirety to be sustainable and that piecemeal development will not be acceptable. Be clear in your policy making that recourse will be had to compulsory purchase powers where necessary. Set out the extent to which the development is dependent on new infrastructure. Make clear where the new infrastructure would not be coming forward were it not for the new settlement proposal. The practical difficulty lies more with the fact that, for compulsory purchase to be a credible delivery mechanism such that the local plan policy can be shown to be “sound”, most local authorities would need private sector backing and most private sector participants would not underwrite significant compensation liabilities without being pretty certain that there will be planning permission. This is the scratch in the record that you don’t get past. Here’s where you need to lift the stylus and move it on a bit, whether that’s a role for Homes England funding or by allowing significant new settlements to be promoted as an NSIP so that the necessary planning and compulsory purchase steps can take place at the same time.

The frustrating thing is that the compulsory purchase compensation process is far from perfect and much could be done to reduce uncertainty for acquiring authorities and their private sector partners (usually fully underwriting the authority’s liability by way of an uncapped CPO indemnity agreement). The areas where the risk of significant compensation liability can discourage use of compulsory purchase are not questions of what hope value can be attributed to the prospect that the land might have been developed for other valuable purposes in the no scheme world (where the situation arises – not often – the position is usually well documented and can largely be quantified). In my experience the scary risks, where large and unpredictable compensation numbers can in fact arise, are more in such areas as:

⁃ does the land being acquired hold, in the no scheme world, a ransom value over other adjoining land which might have been developed in the no scheme world?

⁃ where business premises are being acquired, is the business likely to claim disturbance compensation on the basis of total extinguishment (by demonstrating that there is not a reasonable relocation opportunity open to it)? If so, the acquiring authority will often have little feel for what the ultimate justifiable compensation figure will be due to lack of access to information that is confidential to the business, other than published accounts.

But my basic pleas are:

⁃ for the Government to take a careful look at how the present system works in practice before making any amendments to section 5.

⁃ for those seeking to justify changes to the system to be more precise about their concerns, based on real examples, and as to what changes they are seeking.

⁃ for Parliament one day to have time to review properly and consolidate compulsory purchase legislation.

Oh and, obviously, the answer to the question was that Market Value minus Hope Value = < Market Value.

Simon Ricketts, 31 August 2018

Personal views, et cetera

Let A Million New Homes Bloom

It is financially, legally and politically challenging to deliver new communities but without them the gap will continue to widen as between the quantity – and quality – of homes that the country needs and those that are built.

Credit should be given to the Government for continuing to push. Are its efforts too diffuse and/or insufficiently strategic, in terms of being within a clear framework, or is it simply being pragmatic in encouraging locally-supported proposals without specifying locations or indeed the process for delivery? That is for others to judge but this blog post is intended to serve as a reminder of where we stand by way of ministerial statements, and particularly focuses on where we are with the Cambridge-Milton Keynes-Oxford arc.

NPPF

The July 2018 NPPF continues, by way of paragraph 72, to support locally-led new settlements, with a change from the March 2018 draft in the reintroduction of the reference from the 2012 NPPF to garden city principles:

The supply of large numbers of new homes can often be best achieved through planning for larger scale development, such as new settlements or significant extensions to existing villages and towns, provided they are well located and designed, and supported by the necessary infrastructure and facilities. Working with the support of their communities, and with other authorities if appropriate, strategic policy-making authorities should identify suitable locations for such development where this can help to meet identified needs in a sustainable way. In doing so, they should:

a)  consider the opportunities presented by existing or planned investment in infrastructure, the area’s economic potential and the scope for net environmental gains;

b)  ensure that their size and location will support a sustainable community, with sufficient access to services and employment opportunities within the development itself (without expecting an unrealistic level of self-containment), or in larger towns to which there is good access;

c)  set clear expectations for the quality of the development and how this can be maintained (such as by following Garden City principles), and ensure that a variety of homes to meet the needs of different groups in the community will be provided;

d)  make a realistic assessment of likely rates of delivery, given the lead-in times for large scale sites, and identify opportunities for supporting rapid implementation (such as through joint ventures or locally-led development corporations); and

e)  consider whether it is appropriate to establish Green Belt around or adjoining new developments of significant size.”

Garden Communities Prospectus

MHCLG published on 15 August 2018 its Garden Communities prospectus, inviting “bids for ambitious, locally supported, proposals for new garden communities at scale. In return for tailored assistance to help design and deliver the vision for these places, we expect local areas to deliver significant housing and economic growth. We will look to assist as many as we can, in locations where there is sufficient demand for housing.

Bids are due by 9 November 2018. The prospectus sets out the necessary criteria as follows:

Scale

The Government “will prioritise proposals for new Garden Towns (more than 10,000 homes), but will consider proposals for Garden Villages (1,500-10,000 homes) which are particularly strong in other aspects. For instance, demonstrating exceptional quality or innovations, development on predominantly brownfield sites, being in an area of particularly high housing demand, or ability to expand substantially further in the future.”

Strategic fit

All proposals must demonstrate how the new garden community fits with the housing need for the housing market area, including expected future population growth. We will prioritise proposals which respond to housing need in high demand areas. We also particularly welcome proposals which release more land through local plans to meet local housing need, and / or go above local housing need.

All proposals should demonstrate how the new garden community fits with wider strategies to support economic growth and increase productivity. We expect to see ambitious proposals which create a variety of new jobs and the timely delivery of infrastructure necessary to underpin this.”

Locally-led

Strong local leadership is crucial to developing and delivering a long-term vision for these new communities. All proposals should have the backing of the local authorities in which they are situated, including the county council in two-tier areas. We are particularly interested in proposals which demonstrate collaboration across local authority boundaries. To ensure that the potential local growth benefits have been considered, it will be desirable for proposals to have the support of the Local Enterprise Partnership, where the area has one.

Proposals should set out how the local community is being, or will be, engaged and involved at an early stage, and strategies for continued community engagement and involvement. We are clear that local communities – both current and future residents – must have a meaningful say in developing the proposal from design to delivery.”

Garden community qualities

High quality place-making is what makes garden communities exemplars of large new developments, and all proposals must set out a clear vision for the quality of the community and how this can be maintained in the long-term, for instance by following Garden City principles.”

Deliverability and viability

Proposals should address:

⁃ delivery models and timescales

⁃ infrastructure requirements

⁃ opportunities to capture land value

⁃ access to finance and private sector investment

(NB this post is not intended to be an update to my 20 May 2017 blog post Money For Nothing? CPO Compensation Reform, Land Value Capture. However, I would note first the specific advice in the new NPPF that local planning authorities’ role in identifying and helping to bring forward land for development should “include identifying opportunities to facilitate land assembly, supported where necessary by compulsory purchase powers, where this can help to bring more land forward for meeting development needs and/or secure better development outcomes” and secondly the open letter, Sharing land value with communities dated 20 August 2018 from 16 campaign groups to the Secretary of State, which included the request that Parliament “should reform the 1961 Land Compensation Act to clarify that local authorities should be able to compulsorily purchase land at fair market value that does not include prospective planning permission, rather than speculative “hope” value.” It is interesting to see the broadness of consensus between a variety of organisations but these issues are not at all straight-forward! More in due course.)

Delivery timescales and accelerated delivery

We will prioritise proposals that offer a strong prospect of early delivery and a significant acceleration of housing delivery. They should consider the scope for innovative ways to deliver new homes, such as off-site construction, custom build and self-build, as well as providing opportunities for a diverse range of house builders. Priority will be given to proposals that can demonstrate how build out will be achieved at pace, whilst maintaining quality.”

In terms of delivery vehicles, the prospectus says this:

Whilst we are not prescribing any particular model, for proposals at scale, a Development Corporation may be an appropriate vehicle to consider. We have taken action to enable the creation of new locally accountable New Town Development Corporations. These vehicles can help provide long-term certainty to private investors, resolve complex co-ordination challenges, invest directly in infrastructure that unlocks development, and use compulsory purchase powers to help lay out a new town.

(The reference to “new locally accountable New Town Development Corporations” is a reference to the new mechanism available for designating new towns by way of the New Towns Act 1981 (Local Authority Oversight) Regulations 2018 which were made and came into force on 23 July 2018. Guidance as to their operation was published in June 2018.)

Who can apply?

The support of the relevant local planning authority or authorities is a prerequisite:

Proposals are invited from local authorities and private sector partners (such as master developers or land owners). Proposals submitted by private sector partners must be expressly supported by the local authority.

We particularly welcome joint proposals from one or more local authorities, as well as proposals which demonstrate support from developers and / or landowners.”

Cambridge-Milton Keynes-Oxford corridor

There is specific paragraph in relation to the CaMKOx corridor (or whatever we are meant to call it):

For proposals within the Cambridge – Milton Keynes – Oxford corridor, Government will continue to work with local partners to consider how the delivery of new homes and settlements can best support the overarching vision for the axis. This includes the contribution these places can make to the National Infrastructure Commission’s finding that up to 1 million homes will need to be built in the corridor by 2050, if the area is to maximise its economic potential.”

CaMKOx

There are a number of related Government-sponsored initiatives in relation to the Cambridge-Milton Keynes-Oxford corridor.

The Government published in November 2017 its vision for the corridor, Helping the Cambridge, Milton Keynes and Oxford corridor reach its potential, alongside the Autumn budget and the National Infrastructure Commission’s report Partnering for Prosperity: A new deal for the Cambridge- Milton Keynes-Oxford Arc. The NIC report sets out its conclusion that:

The Cambridge-Milton Keynes-Oxford arc must be a national priority. Its world-class research, innovation and technology can help the UK prosper in a changing global economy. But success cannot be taken for granted. Without urgent action, a chronic undersupply of homes could jeopardise growth, limit access to labour and put prosperity at risk.

The Commission’s central finding is that rates of house building will need to double if the arc is to achieve its economic potential. This requires a new deal between central and local government – one which aligns public and private interests behind the delivery of significant east-west infrastructure and major new settlements, and which seeks commitment to faster growth through a joined-up plan for jobs, homes and infrastructure. Any deal must give local areas the certainty, freedoms and resources they need to create well-designed, well-connected new communities.”

Two significant transport infrastructure projects were seen by the NIC as critical to unlocking development: the East West Rail scheme connecting Oxford and Cambridge by rail and the Oxford-Cambridge Expressway road proposal. But the report also makes important recommendations as to necessary governance, seeking

• “New powers giving councils greater certainty over future investments, and allowing them to fund and raise finance for major infrastructure improvements that deliver new homes

• A jointly agreed plan for new and expanded housing settlements, supported by New Town Development Corporations and new infrastructure design panels

• New statutory spatial plans and investment strategies for each sub-region should be developed, as part of a 50-year vision for the arc as a whole

The Government’s vision states:

1.7 The government welcomes the NIC’s finding that up to 1 million homes will need to be built in the corridor by 2050, if the area is to maximise its economic potential.

1.8 The government has agreed a housing deal with Oxfordshire, committing to a target of 100,000 homes in the county by 2031 in return for a package of support for infrastructure and economic growth, which could include supporting the growth of employment sites across the county such as Science Vale, one of the most successful science and technology clusters in the UK. This rate of housing delivery would be consistent with a corridor-wide ambition for 1 million new homes by 2050.

1.9 The government pledges to build on the Oxfordshire deal by working with the central and eastern parts of the corridor in 2018, to realise its housing ambitions.

1.10 As the NIC has recommended, the government will also consider opportunities for one or more major new settlements in the corridor. It will do so by bringing together public and private capital to build new locally-proposed garden towns, using appropriate delivery vehicles such as development corporations. The government will work closely with the Homes and Communities Agency and local partners to explore such opportunities further.”

In terms of governance:

1.15 The government invites local partners to work with it through 2018 to agree a long term vision for the whole corridor up to 2050. This will set out how jobs, homes and infrastructure across the corridor will be planned together to benefit existing and new residents, while balancing economic growth with the protection and enhancement of the area’s historic and environmental assets.

1.16 The government believes this long-term vision should be underpinned by a series of joint statutory plans across the corridor which would deliver the vision through the planning system. As a first step, Oxfordshire has agreed, through its housing deal with government, to bring forward for adoption a joint statutory plan across the whole county. The government urges other areas in the corridor to propose how they will work together with a view to adopting a small number of joint statutory plans at the earliest opportunity to ensure that planning for business and housing is coordinated with the delivery of strategic and local infrastructure.”

In terms of capturing increases in land value:

1.18 The government will be consulting on changes to the mechanisms currently available to local authorities (the Community Infrastructure Levy (CIL) and Section 106 agreements) to make them easier to use and more flexible. This will enable local authorities to capture land value uplift taking place in the corridor more effectively. For example, the government will consult on changes to CIL that would make it easier for authorities to capture land value increases around new railway stations.

1.19 As a starting point, the government expects authorities and delivery bodies in the Cambridge – Milton Keynes – Oxford corridor to use existing mechanisms of land value capture, and the potential new mechanisms announced at Autumn Budget 2017 (subject to consultation) to capture rising land values from the additional public investment in a fair way, having regard to the announcements made at Budget 2017.

1.20 The government will also encourage authorities to explore the introduction of a Strategic Infrastructure Tariff, in addition to CIL, supported by appropriate governance arrangements. These approaches will require developers to baseline their contribution towards infrastructure into the values they pay for land.”

East West Rail

Network Rail made an application to the Secretary of State for Transport for a Transport and Works Act Order in relation to phase 2 of its East West Rail scheme on 27 July 2018, which is the central section of the line, including track and signalling upgrades between Bicester, Bedford, Aylesbury and Milton Keynes, including the reinstatement of a ‘mothballed’ section of railway between Bletchley and Claydon Junction. The deadline for representations is 7 September 2018. Phase 1, the western section between Oxford and Bicester, is already complete.

Oxford-Cambridge Expressway

Highways England is expected to announce its preferred route for the Oxford-Cambridge Expressway this Autumn. The three potential corridors are:

– Option A – southern, via Aylesbury, linking to the M1 south of Milton Keynes

– Option B – central, following the east-west rail corridor

– Option C – northern, roughly following the existing A421 to the south of Bicester and via Buckingham to the east of Milton Keynes

The local authorities and communities affected of course all have differing views as to the route that should be selected. A critical (you might guess from its title) piece about the project by George Monbiot, This disastrous new project will change the face of Britain, yet no debate is allowed was published by the Guardian on 22 August 2018. The scheme will be promoted in due course as a Nationally Significant Infrastructure Project. Given that the selected route will not be the subject of a Planning Act 2008 national policy statement it is inaccurate to suggest that “no debate is allowed“, although of course, as with other elements of the planning for CaMKOx, it has been iterative, without any form of Government framework that might be argued to require strategic environmental assessment.

Given the 9 November 2018 deadline for bids in the Garden Communities Prospectus, it is curious to note that Planning minister Kit Malthouse wrote to local authorities across the Cambridge-Milton Keynes-Oxford corridor on 26 July 2018, inviting them “to bring forward ambitious proposals for transformational housing growth, including new settlements” with a much earlier deadline of 14 September 2018:

The National Infrastructure Commission has stated that realising its full potential as a world class economic hub would require delivery of up to 1 million new homes here by 2050. The Government welcomes this ambition. Last year, we set out a significant programme of investment in infrastructure, housing and business to support it.

Realising the ambition of 1 million homes here will require additional action from central and local partners. This action includes Government’s planning reforms, our national programmes such as the Housing Infrastructure Fund, the forthcoming national prospectus inviting proposals for locally-led new garden communities, and further work to understand the potential for housing growth across the corridor.

Government will also soon begin detailed analysis to explore potential locations for new settlements across the corridor, their alignment with transport infrastructure, and any environmental considerations.”

The precise choreography as between these calls for proposals, a decision as to the final route the Oxford-Cambridge Expressway (which in itself will be relevant to the identification of potential sites) and what local planning authorities should be doing in the meantime in relation to their emerging and submitted plans is also causing some concern within affected local authorities, if the letter dated 14 August 2018 from the leader of Vale of White Horse District Council, in response to the Malthouse letter, is anything to go by. And is the one million homes in addition to authorities’ current growth proposals?

In promoting what will be significant change for many in the Cambridge-Milton Keynes-Oxford arc and what will be of vital importance to the country as a whole (in terms of the potential that is there to be unlocked in terms of homes and economic growth) the Government is treading a fine line. Its strategy appears to be not to go down the route of one set-piece consultation document (along the lines of the much maligned HS2 white paper) but rather to promote (without the commitments to a fast-track through the planning system that were so controversial in relation to the ecotowns programme) a range of interventions, some ostensibly voluntary (hold up your hands if your authority wants growth – against the backdrop of likely combined authorities and joint plans), some inevitably less so.

Will local planning authorities and communities rise to the challenge? The notion of new community NSIPs appears to remain off the table, probably for good reason given the practical good sense in successful proposals being locally driven. But what if that one million homes figure is simply unachievable on a locally led basis?

Simon Ricketts, 24 August 2018

Personal views, et cetera

What Is Mitigation?

If you are asking this in the context of People Over Wind (EU Court of Justice, 12 April 2018), you are asking the wrong question. Whilst the reference to “mitigation” is useful shorthand (as in my 20 April 2018 blog post, EU Court Ruling: Ignore Mitigation Measures In Habitats Screening), the precise position is more complicated and, despite a helpful judgment of the High Court this week, not easy to resolve in a practical way.

The People Over Wind ruling can be summarised very briefly by paraphrasing its final paragraph: In order for a competent authority to determine whether it is necessary to carry out an appropriate assessment of the implications, for a site protected under the Habitats Directive or Birds Directive, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site.

In that case the measures which the court held could not be taken into account were requirements to be contained in a construction management plan to “provide details of intended construction practice for the development, including … (k) means to ensure that surface water run-off is controlled such that no silt or other pollutants enter watercourses …’.

In referring the case to the EU Court of Justice, the Irish High Court had referred to the requirements as “mitigating measures“. The promoter of the scheme which was under challenge had described them as “protective measures“, but the EU Court of Justice disregarded the distinction:

25     […] Article 6 of the Habitats Directive divides measures into three categories, namely conservation measures, preventive measures and compensatory measures, provided for in Article 6(1), (2) and (4) respectively. It is clear from the wording of Article 6 of the Habitats Directive that that provision contains no reference to any concept of ‘mitigating measure’ (see, to that effect, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraphs 57 and 58 and the case-law cited).

26      It follows that, as is apparent from the reasoning of the request for a preliminary ruling, that the measures which the referring court describes as ‘mitigating measures’, and which Coillte refers to as ‘protective measures’, should be understood as denoting measures that are intended to avoid or reduce the harmful effects of the envisaged project on the site concerned.

The court’s position was clear: “full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment.”

So the big question is whether there are any measures which can be taken into account at the screening stage which are not caught as avoidance or reduction measures.

There was a judgment of the High Court this week, R (Langton) v Secretary of State for Environment, Food & Rural Affairs and Natural England (Sir Ross Cranston, 15 August 2018), where this is dealt with briefly in the context of a broader series of challenges arising from DEFRA’s badger culling programme and (more relevant for the purposes of this blog post) decisions in August and September 2017 by Natural England to grant badger culling licences. I only address the latter below, although I may come back in a later blog post to other parts of the judgment in the context of the requirements of a lawful consultation process.

The claimant argued that in granting licences in Special Protection Areas and Special Areas of Conservation, Natural England had not carried out adequate assessment under the Habitats Regulations.

Natural England’s standard form assessments, undertaken in May 2017. “In each case the conclusion to these screening assessments was that the licensed culling of badgers was unlikely to have a significant effect on the qualifying features of the relevant site. In none of the areas was an in-combination assessment considered applicable.” (paragraph 79)

The assessments identified the possible disturbance effects of badger culling as follows:

disturbance to the species (firearm report, lamping, vehicles, humans), physical damage to habitats/species (vehicles, trampling, digging-in of traps), physical damage to non-target species, and “indirect damage to species from an increased abundance of other mammalian predators (in particular foxes) due to reduced badger population density.”” (paragraph 81)

Each of the assessments referred to “mitigation measures” which had been incorporated into the proposal and stated that complying “with the mitigation measures will ensure that there is no significant likely effect alone“.

The measures were various restrictions proposed to be included as conditions on licences, including:

⁃ limiting shooting activities to outside the bird breeding season

⁃ restricting vehicles to existing tracks

⁃ various restrictions on the location of traps and of activities. (paragraph 83)

Sir Ross Cranston sets out the law on Habitats Regulations Assessment at paragraphs 94 to 96 and then addresses the challenge to the validity of the decisions from paragraph 126 onwards.

The claimant argued that Natural England hadn’t adopted a precautionary approach (particularly in relation to the risks arising from a greater proliferation of foxes as a result of badger culling), and as a consequence had not even carried out HRA screening in relation to a number of SACs and SPAs, and that the screening process had improperly taken into account avoidance or reduction measures in breach of People Over Wind.

The court said this on the precautionary principle:

The precautionary principle in this context is fundamental, but “[i]t is for a third party who asserts that there is a risk which cannot be excluded on the basis of objective information to produce credible evidence to the court that the risk is a real one…”: R (on the application of DLA Delivery Ltd.) v Lewes District Council [2017] EWCA Civ 58, [30], Lindblom LJ (with whom Lewison LJ agreed), Boggis v Natural England[2009] EWCA Civ 1061, [37], per Sullivan LJ (with whom Longmore and Mummery L.JJ agreed).” (paragraph 133)

The court considered that “Natural England’s failures, even if only to record that no consideration of the risk was necessary with these close-by sites to cull areas, was a breach of its duty under the Habitats Regulations.” (paragraph 133).

However, it found that, on the evidence, the outcome would not have been substantially different if it had considered fox predation risk arising from granting culling licences

The court then turned to the implications of People Over Wind from paragraph 154 onwards. It referred to the Hart judgment from 2008, approved by the Court of Appeal in Smyth (2015) finding that there was no legal reason why preventative safeguarding measures incorporated into a project should be ignored at the initial screening stage.

It has of course been widely assumed that this approach has been overruled by People Over Wind. It is therefore intriguing how Sir Ross Cranston addresses the issue.

In paragraph 155 he refers to the measures in People Over Wind as measures “which seem to have involved reducing run-off” and indicates that the EU Court of Justice had found that they “should be understood as denoting measures intended to avoid or reduce the harmful effects of the envisaged project on the site concerned“.

He records at paragraph 156 the claimant as submitting that “the conditions which Natural England had attached to the cull licences, following advice to applicants, fell within the People Over Wind ruling and should not have been taken into account at the screening stage. These were that no culling activity would take place in certain locations (e.g., Severn Estuary SPA) or at certain times of the year (e.g., bird-breeding season with Dorset Heathlands SPA and Poole Harbour SPA).”

In the final paragraph of a 76 page judgment he then simply concludes:

In my view the licence conditions which Natural England attached to the licences in Areas 16 and 17 are not the mitigating or protective measures which featured in the People Over Wind ruling. They are properly characterised as integral features of the project which Natural England needed to assess under the Habitats Regulations. I accept Natural England’s submission that it would be contrary to common sense for Natural England to have to assume that culling was going to take place at times and places where the applicants did not propose to do so.”

So what do we take from this? On this basis we have up to date first instance authority (I do not know whether permission to appeal is being sought) for asserting that integral features within a scheme can be taken into account. But how is it to be determined when a condition restricting operations is or is not an integral feature? I can see that conditions that define the temporal and physical limits of a permitted activity can be said to be integral features but there is not always a clear dividing line. Were the construction management plan requirements in People Over Wind so very different?

What I do take from it is the potential willingness of our judiciary (or at least one judge, technically retired – which is why he is not referred to as “Mr Justice Cranston“) to seek to push back against the ruling and seek to retain the traditional, more pragmatic, approach from Hart.

Are our courts going to be able to hold that line? The approach in Langton appears to me to be potentially less restrictive than for instance the Planning Inspectorate’s advice to inspectors (9 May 2018), which states at paragraph 17 that “there is no definition of what constitutes avoidance and reduction measures and what could be viewed as an integral part of a works or development proposal. If a measure is being introduced to avoid or reduce an effect on a European site then it can be viewed as mitigation. This includes measures outlined in SPDs such as the provision of Sustainable Alternative Natural Greenspace and Strategic Access Management and Monitoring as in the Thames Basin Heaths approach. However it can also include ‘embedded mitigation’ such as a commitment within a development proposal to employing standard methods to prevent run-off from vehicles contaminating watercourses.”

Compensatory measures

Aside from the issue arising from People Over Wind as to what are “mitigation” (short-hand for “avoidance or reduction“) measures, which need to be disregarded in the screening process (but can be taken into account as part of appropriate assessment if the need for appropriate assessment is not screened out) there is the issue as to what “mitigation” measures are in fact “compensatory” measures which cannot even be taken into account at the appropriate assessment stage.

This was the subject matter of the latest relevant EU Court of Justice case, which in short-hand I will refer to as Grace, Sweetman (25 July 2018) arising from yet another challenge brought by Irish environmental campaigner Peter Sweetman, this time against the Irish national planning board’s decision to grant permission for a wind farm project on land that stretches from Slieve Felim in Limerick to Silvermines Mountains in Tipperary, that was designated as a Special Protection Area because it hosts the natural habitat of the hen harrier.

The proposal would result in the permanent and temporary loss of habitat (directly through clearance of trees at each turbine location and indirectly on the assumption that foraging hen harriers would not come within 250m of a wind turbine) but a species and habitat management plan was proposed that envisaged the restoration of various areas to blanket bog, particularly suitable for hen harriers, and a ‘sensitive’ management regime that would provide suitable foraging habitat and an ecological corridor between two areas of open bog.

Ms Grace and Mr Sweetman argued that the management plan measures amounted to compensatory measures and therefore could not be taken into account at appropriate assessment stage by the planning board in its ruling that there would be no adverse effect on the integrity of the SPA.

The Irish Supreme Court referred the issue to the EU Court of Justice as to whether Article 6(3) of the Habitats Directive “is to be interpreted as meaning that the measures proposed in the management plan relating to the contested development which seek to ensure that the total area providing suitable habitat will not be reduced and could even be enhanced may, in the circumstances of the present case, be classified as mitigating measures, or whether they must be regarded as compensatory measures within the meaning of Article 6(4) of the Habitats Directive.”

As in People Over Wind, the EU Court of Justice noted that “mitigating measures” is not referred to in the Directive. It indicated that “the Court has previously observed that the effectiveness of the protective measures provided for in Article 6 of the Habitats Directive is intended to avoid a situation where competent national authorities allow so-called ‘mitigating’ measures’ — which are in reality compensatory measures — in order to circumvent the specific procedures laid down in Article 6(3) of the directive and authorise projects which adversely affect the integrity of the site concerned“.

It interpreted the referring court’s question “as asking, in essence, whether Article 6 of the Habitats Directive must be interpreted as meaning that, where it is intended to carry out a project on a site designated for the protection and conservation of certain species, of which the area suitable for providing for the needs of a protected species fluctuates over time, and the temporary or permanent effect of that project will be that some parts of the site will no longer be able to provide a suitable habitat for the species in question, the fact that the project includes measures to ensure that, after an appropriate assessment of the implications of the project has been carried out and throughout the lifetime of the project, the part of the site that is in fact likely to provide a suitable habitat will not be reduced and indeed may be enhanced may be taken into account for the purpose of the assessment that must be carried out in accordance with Article 6(3) of the directive to ensure that the project in question will not adversely affect the integrity of the site concerned, or whether that fact falls to be considered, if need be, under Article 6(4) of the directive.

It noted that “there is a distinction to be drawn between protective measures forming part of a project and intended avoid or reduce any direct adverse effects that may be caused by the project in order to ensure that the project does not adversely affect the integrity of the area, which are covered by Article 6(3), and measures which, in accordance with Article 6(4), are aimed at compensating for the negative effects of the project on a protected area and cannot be taken into account in the assessment of the implications of the project“.

As a general rule, any positive effects of the future creation of a new habitat, which is aimed at compensating for the loss of area and quality of that habitat type in a protected area, are highly difficult to forecast with any degree of certainty or will be visible only in the future.”

It held that the measures were compensatory and could not be taken into account at the appropriate assessment stage. Article 6 was to be interpreted as meaning that, “where it is intended to carry out a project on a site designated for the protection and conservation of certain species, of which the area suitable for providing for the needs of a protected species fluctuates over time, and the temporary or permanent effect of that project will be that some parts of the site will no longer be able to provide a suitable habitat for the species in question, the fact that the project includes measures to ensure that, after an appropriate assessment of the implications of the project has been carried out and throughout the lifetime of the project, the part of the site that is in fact likely to provide a suitable habitat will not be reduced and indeed may be enhanced may not be taken into account for the purpose of the assessment that must be carried out in accordance with Article 6(3) of the directive to ensure that the project in question will not adversely affect the integrity of the site concerned; that fact falls to be considered, if need be, under Article 6(4) of the directive.”

For some projects this is potentially as problematic a ruling as People Over Wind, given that unless any adverse effect on the integrity of any SPA or SAC cannot be ruled out without relying on measures of this nature, the scheme can only proceed if it can be demonstrated that there are imperative reasons of overriding public interest – a high test.

In conclusion, when dealing with plans and schemes with potential effects on SPAS and SACs, precise analysis is needed of the true nature of any proposed measures being relied upon to “mitigate” (short-hand) the potential harmful effects of the development. The relevant question at screening stage is whether they are measures intended to avoid or reduce those effects or can they be said to be measures which are integral features of the project? The relevant question at appropriate assessment stage is whether they are in fact measures intended to compensate for a reduction in the parts of the site that will be able to provide a suitable habitat for the relevant species?

Simon Ricketts, 18 August 2018

Personal views, et cetera

Image courtesy of http://www.badgerwatchdorset.co.uk