Don’t Be An April Fool: Written Reps Planning Appeals Are About To Get Faster But Also Riskier

You need to know how the rules are changing from 1 April 2026 for 94.7% of planning appeals: those that proceed by way of written representations. There are traps for the unwary: whether for appellant, local planning authority or third party.

The changes have been on the cards since last June – see my 28 June 2025 blog post How Do You Solve A Problem Like…Speeding Up Planning Appeals Without Being Unfair Or Counter Productive?

On 12 February 2026 the Planning Inspectorate published Planning appeals: procedural guide. For appeals relating to applications dated on or after 1 April 2026  alongside the Town and Country Planning (Appeals) (Written Representations Procedure) (England) (Amendment and Saving Provision) Regulations 2026 which were laid before Parliament that day.

The main difference is that the “expedited” or “part 1”  written representations procedure, which currently applies in relation to householder and minor commercial appeals, will be extended to most appeals to be determined by way of written representations.

Under the procedure, the appellant is not able to submit evidence at appeal not previously considered by the LPA when they determined the application, leaving the appeal to be determined by the inspector solely by reference to:

  • the application that the LPA determined (including all supporting evidence, plans and interested party comments)
  • the LPA’s decision notice (including their reasons for refusal where applicable)
  • The LPA’s committee minutes and planning officer report
  • The appeal form
  • The LPA’s appeal questionnaire

Third parties are not able to make further representations at the appeal stage so will have to rely on the inspector taking into account any representations that were made during the course of the application.

As is already the case with all written representations appeals (part 1 or part 2), if a section 106 agreement or unilateral undertaking is required, the completed (i.e. executed and dated) version needs to be submitted at the time the appeal is submitted.

This part 1 procedure will apply to the following types of appeal:

  • Appeals against a refusal of planning permission
  • Appeals against a grant of planning permission subject to conditions that the applicant objects to
  • Appeals against a refusal of prior approval
  • Appeals against a refusal of advertisement consent
  • Appeals against the refusal of an application to approve a reserved matter
  • Appeals against the LPA’s refusal of an application to modify or remove a condition under section 73 of the Town and Country Planning Act 1990
  • Appeals against the LPA’s refusal of an application for planning permission for development already carried out under section 73A of the Town and Country Planning Act 1990
  • Appeals against permission in principle or refusal of technical details consent

It is open to the Planning Inspectorate to decide that that an appeal which is eligible to follow the part 1 procedure should instead follow a different procedure. For example the guidance says that “appeals against an LPA’s refusal of a biodiversity gain plan, whilst eligible to proceed under part 1, will usually follow the part 2 procedure”.

This leaves only the following types of written representations appeal as still following the existing part 2 procedure:

  • Appeals against the LPA’s failure to determine an application within their time limit for doing so (‘non-determination’ cases)
  • Appeals in relation to an application for Listed Building Consent
  • Appeals in relation to a discontinuance notice

Why the changes? The most useful, detailed, justification for the changes is set out in the explanatory memorandum to the Regulations. It states that as at March 2025, appeals following the part 2 procedure took an average of 29 weeks whereas appeals following the part 1 procedure took an average of 18 weeks. (In fact the Planning Inspectorate’s December 2025 figures show improvements on these timescales, the averages now being 21 and 14 weeks respectively – with hearings taking an average of 25 weeks and inquiries an average of 38 weeks).

The memorandum says this:

“The number of appeals decided through both written representations procedures will remain the same. Expanding the expedited procedure will allow more appeals to be decided more quickly. It will reduce pressure on local planning authorities by removing the need for them to submit a full statement of case, although they will need to ensure that the decision notice or officer’s report is sufficiently detailed. Additionally, with no further opportunity to comment, it removes the need to process and publish representations from interested parties. It will reduce the burden on appellants by reducing the amount of documentation needed when submitting an appeal. It will reduce the burden on all parties by removing the opportunity for any comments at the appeal stage. By expanding the expedited written representations appeal procedure to a broader range of appeals, larger developments will also benefit from the streamlined process and quicker decisions, helping to unlock economic growth and accelerate the delivery of homes.”

Taking this at face value, obviously quicker decision times are in everyone’s interests.

However, certainly there are concerns:

  • Whilst it is said that the number of appeals decided by way of written representations will remain the same, is this the slippery slope and will we see over time a greater overall proportion of appeals going by this route, including a greater proportion where the complexity of issues and level of potential third party interest makes the process appear like an inappropriately summary form of justice?
  • What happens in the frequent case where the appellant requests a hearing or inquiry route but is pushed down the written representations route by the Planning Inspectorate (given that the criteria for which appeals are appropriate for written representations, hearings and inquiries are not objective but rely on the application of judgment in each particular case)? The procedural switch is already problematic but will get more difficult.
  • What about where members refuse an application against officers’ advice? Perhaps helpfully for appellants, in practice the basis for the members’ decision will have to rest on the minutes of the committee meeting. In practice will this mean a greater number of deferrals so that credible potential reasons for refusal can be prepared?
  • Do the changes favour well-advised potential appellants? The strategy is now clear: the applicant needs to make sure that their application package is robust and appeal-ready,  that they have responded to issues raised by third parties and they have resolved or narrowed down any potential difference in relation to any necessary section 106 agreement or undertaking – and to have made good progress on a draft.

Lastly, perhaps a few words on the statistics as to which procedure is most likely to result in an appeal being allowed. Appeal Finder have done some good statistical analysis.

Whilst this shows that by comparison of appeal route, inquiries are most likely to succeed, followed by hearings – and with the written representations procedure being least fruitful for appellants, I am always cautious as to the conclusions to be drawn. It is tempting to think that the obvious strategy is to seek an inquiry and, failing that, a hearing – and lawyers like me will usually trot out the benefits of cross-examination and formal exchange of evidence (inquiries), the greater likelihood of a senior inspector being appointed and at the very least the opportunity to tell from the inspector’s body language and line of questioning whether he or she has understood the particular issues. Much of this is true. But to what extent are the statistical differences simply correlation rather than causation? Surely the larger the scheme the better professional advice the applicant is likely to have had and the less likely the applicant is to contemplate taking to appeal a proposal that is doomed to fail? I wonder if there is any housebuilder that has collected statistics on their own projects as to whether there is a material difference in outcomes for projects with an equivalent project team involved?

In the meantime, if you have a potential appeal on the stocks which may go by way of the written representations route, don’t get caught out come 1 April….

Simon Ricketts, 15 February 2026

Personal views, et cetera

Grey Belt Tests Tested

There have been three examples in recent weeks of either the High Court considering arguments that an inspector had misapplied the grey belt tests within the NPPF or of the government legal department conceding that an inspector had misapplied the tests, each example useful in isolating a specific element of the required decision-making process:

How should footnote 7 be applied?

“Grey belt” is defined in the NPPF glossary as follows:

“Grey belt: For the purposes of plan-making and decision-making, ‘grey belt’ is defined as land in the Green Belt comprising previously developed land and/or any other land that, in either case, does not strongly contribute to any of purposes (a), (b), or (d) in paragraph 143. ‘Grey belt’ excludes land where the application of the policies relating to the areas or assets in footnote 7 (other than Green Belt) would provide a strong reason for refusing or restricting development.”

Footnote 7 reads:

“The policies referred to are those in this Framework (rather than those in development plans) relating to: habitats sites (and those sites listed in paragraph 194) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, a National Landscape, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets (and other heritage assets of archaeological interest referred to in footnote 75); and areas at risk of flooding or coastal change.”

In Wrotham Parish Council v Secretary of State (Lieven J, 30 January 2026) the specific question arose as to whether “development” for the purposes of that sentence I emboldened above, means any hypothetical development, or whether it means the specific development the subject of the application or appeal.

The case concerned a proposal by Moto Hospitality for a secure 24-hour truck stop facility on the A20 in Wrotham, Kent. An inspector had allowed Moto’s appeal against refusal of planning permission by Tonbridge and Malling Borough Council. The inspector had allowed the appeal and, in her reasoning, had determined that the proposal would “only limited and localised harm to the setting of the [Kent Downs National Landscape] and no harm to the special characteristics of the views into or out of the Protected Landscape. Notwithstanding that the proposal will not conserve and enhance the landscape and its setting considered together, I do not consider the identified harm would provide a strong reason to refuse or restrict the development.”

The claimant, Wrotham Parish Council, argued that the impact of development generally on the national landscape should be considered and whether impact generally of development on the setting of a national landscape would provide a strong reason for refusing or restricting development.

Lieven J rejected that argument:

“In my view the Inspector in DL/41 was correct to apply the footnote 7 test to the development that was the subject of the application and not to all development, or any hypothetical development.”

“For development control purposes the acceptability or otherwise of that impact will fundamentally turn on the impact of the development applied for. This is particularly clear with heritage and habitats impacts, where some developments might have minimal impact, while others provide a strong reason for refusal.”

This “interpretation is strongly supported by the policy purpose of the introduction of the Grey Belt. That purpose, as set out in NPPF paragraph 155, is to allow the release of Green Belt land where it does not strongly contribute to the purposes of the Green Belt; and where there is no strong reason for refusal by reference to the important policy safeguards in footnote 7. It is obviously intended to lead to the release of some additional Green Belt land to meet development needs. It is a further exception to Green Belt policy, but that is not a reason to interpret the policy in a restrictive manner. The interpretative principle is to consider the words in context and with regard to the policy purpose.”

“In this case the Inspector found that the Site did not strongly contribute to the Green Belt purposes in NPPF paragraph 143(a), (b) or (c), and that finding is not challenged. Further, she found that footnote 7 did not provide a strong reason for refusing the Development. A conclusion that, despite those findings, planning permission should be refused is plainly contrary to the purpose of the introduction of the Grey Belt into the NPPF. It is not an answer that the developer can fall back on broader Green Belt policies and show very special circumstances. The point of the introduction of the Grey Belt is to avoid that policy requirement.”

What does “strong reason for … restricting development” mean?

What if one of the policies listed in footnote 7 would provide a strong reason for resisting development within a particular part of the relevant site, even though the specific development proposal being determined does not entail development within that part of the site? You can perhaps guess the correct answer to that test, in the light of the Wrotham case.

By her decision letter dated 13 November 2025 an inspector had dismissed an appeal by Boningdale Homes following South Staffordshire District Council’s refusal of planning permission for up to 100 dwellings in Boscobel Lane, Bishops Wood, Staffordshire. Following a six day inquiry, the inspector agreed with the council that the impact the scheme would have on the local grade II listed Church of St John “represents a strong restriction on development”, concluding that “the appeal site is not grey belt land”.  

She said this:

“66. The parties differ regarding the application of footnote 7 with reference to the potential heritage impact of the proposed development. The appeal site extends close to the Grade II listed Church of St John. There was no heritage reason for refusal and the parties agree that the eastern part of the site is not proposed for development because of the harm that it would cause to the heritage significance of the Church of St John. The Council maintain that this represents a strong restriction on development and for this reason the proposed development would not be grey belt development.”

“71. When considered together with the definition of grey belt, I consider that grey belt is an assessment of the land rather than the proposed development, and that the Council’s interpretation correctly reflects the definition of grey belt within the Framework. Consequently, even though the parties agree that the heritage harm would not be a strong reason for refusal, it is a strong reason for restricting the development and as such I conclude that the appeal site is not grey belt land.”

Lord Charlie Banner KC posted on LinkedIn on 22 December 2025 that in the face of a legal challenge brought by Boningdale, the government has now agreed to consent to judgment on the basis that the inspector’s approach was unlawful.

[NB Of course, the December 2025 draft NPPF proposes removing footnote 7 in its entirety and the reference to it within the “grey belt” definition.]

How does one interpret “fundamentally undermine the purposes (taken together) of the remaining Green Belt across the area of the plan”? (NPPF paragraph 155a)

Is it relevant to consider whether the proposed development would fundamentally undermine the Green Belt purposes of the development site itself, rather than simply the purposes of such parts of the Green Belt as would remain? One might think that the latter interpretation is obviously the case. I’m glad that the government legal department plainly agrees, given that again it has agreed to consent to judgment, this time following a decision letter dated 22 December 2025 in relation to an appeal by O15 from refusal by Warwick District Council of permission in principle for up to three dwellings.

The inspector dismissed the appeal, with her decision letter including this reasoning:

“18. Criterion a. requires the development to not fundamentally undermine the purposes (taken together) of the remaining Green Belt across the area of the plan. This refers to all five Green Belt purposes set out at paragraph 143 of the Framework, not only the three purposes referred to in the definition of grey belt.

19. Green Belt purpose c) seeks to safeguard the countryside from encroachment. I have characterised the site as countryside rather than as part of the village. The proposal would introduce built development onto land which is currently free from development. As such, the proposal would result in encroachment into the countryside and thus would fundamentally undermine purpose c). Consequently, the proposal would fail to meet the requirements of criterion a.”

Another Lord Charlie Banner KC quick win. Planning magazine reported on 2 February 2026 that following receipt of a pre-action letter the Secretary of State had confirmed by letter on 23 January 2026 that it was minded to concede.

Taking a step back… the introduction of grey belt has not seen the avalanche of litigation catastrophised by some. This is the system working as it should. The NPPF grey belt tests are relatively clear in my view but inevitably there are uncertainties and/or misinterpretations. The acceptance of MHCLG to admit where a mistake has been made is always welcome.

Simon Ricketts, 7 February 2026

Personal views, et cetera

Greater Affordable Housing Flex Announced For Some Stalled Schemes; Other Announcements On Affordable Housing & On S106

The flex will be welcome news for some particularly stranded developers, but they will need to move fast.

MHCLG has published Policy statement: a roadmap for Section 106 delivery in England (28 January 2026).

The most eye-catching aspect is a “time-limited, emergency measure intended to support LPAs to exercise their ability to renegotiate planning obligations.” (Perhaps I would have preferred “strongly encourage” rather than “support”!).

Here’s what you need to know, by way of direct quotes from the document:

“LPAs are expected to consider re-negotiating S106 agreements when the following conditions are met:

  • Developers should have exhausted all reasonable endeavours to find an RP buyer based on the affordable housing marketing, and any other – relevant requirements set out in the original S106 agreement.
  • Developers should have uploaded any uncontracted S106 homes onto the Homes England Clearing Service by 1 June 2026 to give a final opportunity for RPs to bid to purchase these homes. Any homes not uploaded onto the Clearing Service by this point will be outside of this process.
  • Homes should be live on the Clearing Service for a period of six weeks from the date of the unit being uploaded (“the Clearing Service period”).
  • The S106 homes should be due for completion on or before 1 December 2027, to be eligible for this time-limited approach; completion defined as when a home is ready for occupation or when a completion certificate is issued. Expected completion dates should be registered on the Clearing Service to guide LPAs on whether all above conditions are met.
  • LPAs should seek to avoid tenure renegotiations for uncontracted s106 homes that have received reasonable offers from willing and suitable RP buyers, as is current practice, to avoid the loss of social and affordable housing to private sale.
  • As is currently expected, developers should inform LPAs of any, and all, bids they receive from RPs seeking to buy uncontracted S106 units. LPAs are actively encouraged to request that these details are provided.
  • Assessing the reasonableness of bids is ultimately a matter for individual LPAs but, where available, they are encouraged to consider the following evidential sources: site level viability evidence; published commuted sums policies; grant rates; surveyor data; and recent S106 purchases in the locality.
  • Given the Clearing Service will have provided an opportunity for RPs to identify and bid for unsold and uncontracted S106 units, LPAs are encouraged for this temporary period to take a pragmatic, time-limited, and light-touch approach to assessing bids, and any further information requests, for example evidence of marketing efforts or details of contact with prospective buyers in the locality.

In instances where there is a dispute between the LPA and developer over whether bids received are reasonable, they may also wish to seek a third-party view to support a resolution, as per an existing Alternative Dispute Resolution (“ADR”) procedure.”

“LPAs should confirm their decision on proceeding to re-negotiate the S106 agreement as quickly as possible – with a guideline of no more than twelve weeks from the end of the six week period, and consider the following in negotiating to alter the tenure of eligible homes:

  • LPAs are encouraged to take the following approach:
  • seek alternative affordable housing or discounted market tenures in the first instance where possible;
  •  if there is no buyer for such tenures, proceed through to private market rent or sale (with equivalent form of affordable housing provided on an alternative site within the LPAs’ area or, where this is not feasible, a financial payment made in lieu of onsite affordable housing).
  • LPAs should include stipulations that make clear that if homes are not completed on time and by the deadline of 1 December 2027, schemes will revert to the tenure mix set out in the original S106 agreement. Renegotiated S106 agreements should provide for this without the need for a further deed of variation to be made.
  • When considering phased development, LPAs and developers should agree a tailored approach with regard to the circumstances of the specific phases i.e. if the first phase will be completed by 1 December 2027, then a deed of variation should be considered in line with the policy set out in this statement. However, where phases contain units that are not expected to complete by this point, the terms set out in the original s106 should continue to be expected to apply.”

If you are a developer unable to find a registered provider to take on homes which are capable of completion by 1 December 2027, this should provide a helpful intervention. Of course, the encouragement to local planning authorities has no real teeth in the face of opposition or delayed responses but one would hope that this government “emergency” announcement (backed indeed by a written ministerial statement) should carry significant practical weight.

What else was in (on?) this “roadmap”?

The second section sets out how MHCLG intends to “simplify and strengthen the process for agreeing developer contributions through S106 agreements at the application stage of new developments”. The approaches to be taken to viability appraisal at the plan-making and decision-making stage as set out in the proposed new NPPF, together with “good quality pre-application engagement between applicants and LPAs to identify and resolve key matters, including planning obligations for the development…will enable the head of terms for the S106 agreement to be agreed as quickly as possible once the application has been submitted”.

Thank you for all those who have engaged to date in my firm’s mini campaign (started by my 14 June 2025 blog post Why Does Negotiating Section 106 Agreements Have To Be Such A Drag?) to secure a standardised form of section 106 agreement for use with smaller schemes:

“Today, we are also confirming our intention to publish a standardised template S106 agreement to help speed up the process of drafting and agreeing new S106 agreements. Town Legal LLP have been formally awarded the contract following a successful procurement process conducted by the Planning Advisory Service. It is intended that a standardised S106 template for medium sites will be issued as a first priority. The template will set out the foundational elements and clauses expected in the majority of S106 agreements for sites below 50 units, and we will engage widely with all relevant parts of the sector to ensure it is as effective as possible. This will provide LPAs a solid starting point for new agreements, speeding up the drafting process and freeing up capacity. Sector-wide training opportunities will also be provided to authorities as part of this wider package.”

So, watch this space!

The third section promises guidance to set out clearer expectations for registered providers, developers and local planning authorities as to the standards that section 106 homes should meet; how the different elements of the sector should work together; standardisation as to pricing, and making the process more accessible for small housing providers.

The final section sets out measures the government is taking to strengthen and expand the market for affordable housing secured by section 106 agreements, including (although I’m straying a bit from my pigeonhole here): low-interest loans for private registered providers of affordable housing [£2.5bn over four years; 60% to be allocated to London; interest rate of 0.1% and a duration of 25 years; competitive bidding process; up to 10% for section 106 homes]; allowing councils to use “right to buy” receipts; exploring “bringing RPs together as consortia to be able to bid and purchase S106 homes together, pooling their capacity and purchasing power. This will be alongside leveraging the role of Established Mayoral Strategic Authorities more proactively in the S106 market” ; also exploring “how government can crowd in additional private investment to enable the purchase of unsold S106.  This is with the aim of bringing them into use while retaining them as regulated affordable housing, for example through an affordable housing acquisition vehicle supported by debt guarantees which is able to buy Section 106 homes”, and adding military affordable housing to the definition of affordable housing.

All of this is alongside Matthew Pennycook’s separate written ministerial statement updating on progress in relation to its social and affordable housing renewal plan. I assume that registered providers will have welcomed the detail provided as to the convergence mechanism now arrived at by the government to enable registered providers to start to close the gap between the rents that could be charged if the home were let to a new tenant and what is payable by the existing tenant:

“Following consultation, I am today confirming that Registered Providers will be able to increase weekly rents for Social Rent homes that are below formula by up to an additional £1 on weekly rents each year over and above CPI+1% from 1 April 2027, and by up to an additional £2 on weekly rents each year over and above CPI+1% from 1 April 2028, until formula rent is reached.”

The statement also confirms details of a reformed Decent Homes Standard for social and privately rented homes.

On the following day, 29 January 2026, MHCLG announced a second phase of its “new homes accelerator” programme. The programme has now been expanded to include sites of fewer than 500 homes. “As part of Phase 2, operations will be expanded in London through the launch of ‘NHA LDN’ and a new planning support service for boroughs, ‘ATLAS LDN’, which will both be led by the Greater London Authority (GLA) on behalf of the Mayor of London.”  If your scheme needs support in unblocking issues, for instance, in working with statutory consultees, there is a portal to apply for schemes nationally and a separate one for London.

It wasn’t all announcements coming from MHCLG this week. MHCLG also published two rather elderly but unfortunately still topical pieces of research that had been commissioned by the previous government and which then had presumably disappeared down the back of a Marsham Street sofa:

  • Delays and barriers experienced in the planning applications process (June 2022), a study by RSM, looking “at the planning applications process following an extensive assessment of 80 case studies for both minor and major development. In doing so, the research explored the different stages of the applications process, from pre-application to post-decision matters, highlighting where the most common and impactful delays occurred”.

The Reflex – Flex – Flex – Flex – Flex …

Simon Ricketts, 30 January 2026

Personal views, et cetera

The A In Section 106A

A is for…

There was an interesting planning appeal decision letter last week concerning a section 106B appeal against refusal of an application made under section 106A to amend a section 106 agreement on the basis that it no longer served a “useful purpose” (the statutory test in section 106A).

This post will look briefly at that decision but first I thought some legislative archaeology might assist.

Section 106 of the Town and Country Planning Act 1990 is of course the statutory successor of section 52 of the Town and Country Planning Act 1971. Under section 52, the commitments had no specific description but were treated effectively as covenants analogous to restrictive covenants given by a landowner to a neighbouring landowner but (unlike usual property law covenants) able to contain positive requirements enforceable against successors in title rather than just restrictions – and, as is the case under section 106, enforceable by the local planning authority.

The only statutory method for amending or removing commitments given within a section 52 agreement was to make an application to what was then the Lands Tribunal (now the Upper Tribunal (Lands Chamber)) under section 84 of the Law of Property Act 1925. In order for such an application to succeed, the Tribunal has to be satisfied (in summary – there are other tests which are less relevant for the purposes of this post) “that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Upper Tribunal may deem material, the restriction ought to be deemed obsolete”.

The section 84 process is slow, uncertain, outside the usual planning system and so on. When section 106 of the 1990 Act came into force on 24 August 1990 the only statutory process remained section 84 of the 1925 Act.

Then in the first of so many waves of amendments to the 1990 Act, along came the Planning and Compensation Act 1991, which came into force on 25 September 1991. The 1991 Act replaced section 106 with, basically, what we have now. Those commitments given by landowners on behalf of themselves and successors were the first time called “planning obligations”.

In those changes, the scope of what could be secured was expanded. Compare the original formulation of what could be secured via section 106 with what it became:

Original:

“(1) )A local planning authority may enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as may be prescribed by the agreement.

(2) Any such agreement may contain such incidental and consequential provisions (including financial ones) as appear to the local planning authority to be necessary or expedient for the purposes of the agreement.”

What it became:

“(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to … as “ a planning obligation ”), enforceable to the extent mentioned in subsection (3)—

  1. restricting the development or use of the land in any specified way;
  1. requiring specified operations or activities to be carried out in, on, under or over the land;
  1. requiring the land to be used in any specified way; or
  1. requiring a sum or sums to be paid to the authority (or, in a case where section 2E applies, to the Greater London Authority) on a specified date or dates or periodically.”

[When we think about how the use of section 106 planning obligations to secure financial contributions has exploded over the last 30 or so years, it is worth comparing what is now section 106 (1) (d) above with what it replaced: section 106 (2) above. Was this intended at the time? An open question…]

Note also the reference to “by agreement or otherwise” in the first line of the changed version of section 106 (1). This opened up the possibility of the landowner entering into planning obligations by unilateral undertaking rather than just by agreement.

Alongside the reformulation of section 106 was the introduction of section 106A and B (from 10 December 1992), providing a procedure to applying to “modify or discharge” planning obligations in place of using the Law of Property Act 1925 procedure. As I know you know, section 106A allows an application to be made once at least five years have passed since the obligation was entered into – with an available appeal route (although it is worth noting that the Secretary of State can prescribe – very easily in legislative terms, simply a ministerial direction would surely suffice – a period shorter or longer than five years).  An application may be made before five years have passed, but in those circumstances there is no right of appeal. If an application is made, the local planning authority has to determine either:

  1. that the planning obligation shall continue to have effect without modification;
  1. if the obligation no longer serves a useful purpose, that it shall be discharged; or
  1. if the obligation continues to serve a useful purpose, but would serve that purpose equally well if it had effect subject to the modifications specified in the application, that it shall have effect subject to those modifications.

Section 106B provides for appeals to be made to the Secretary of State. (Interestingly, sub-section 106 (5) requires that before determining the appeal “the Secretary of State shall, if either the applicant or the authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose”. I interpret that as the parties having a right for any appeal to be determined bother than by written representations, i.e. by a hearing or inquiry).

What is meant by “no longer serves a useful purpose”? What did Parliament intend to connote by the use of those words? Was this just intended as a modernisation and abbreviation of the test in section 84 of the Law of Property Act 1925? Should this be treated as a “useful planning purpose” or will any useful purpose do? Those words “No longer”: What if the obligation never served a useful purpose? And why five years? Of course, given the lack of any other statutory route to amend section 106 agreements and unilateral undertakings, all of this has come under increasing scrutiny both by inspectors on appeals and by the courts.

I have been looking back today at Hansard reports of debates in parliament that led to the Planning and Compensation Act 1990 to see whether legislators gave any of this specific thought. It would have been good if they had done but I can’t see that they did.

All this is particularly topical at the moment, at a time where many schemes are stalled through lack of viability and where development may be able to progress if planning obligations previously entered into are modified or discharged to the extent necessary to achieve viability. The government of course (a) missed any opportunity during the course of the Planning and Infrastructure Act 2025 to reintroduce the section 106BA and BC procedure that we had between April 2013 and April 2016 to allow developers to apply to modify or discharge affordable housing obligations in Section 106 agreements where those obligations made a development economically unviable and (b) is still not exactly welcoming section 73 applications with open arms that serve as a vehicle to achieve that outcome (see Matthew Pennycook’s 18 December 2025 letter to the Planning Inspectorate) so, if the local planning authority is not willing to engage in such a renegotiation of its own volition, section 106A and B are the only game in town.

Which now takes me to that recent appeal decision I mentioned. This is a decision letter dated 20 January 2026 dismissing appeals by Hodson Developments and Chilmington Green Developments against the non-determination  by Ashford Borough Council and Kent County Council of applications made under section 106A to make a total of 122 modifications to a section 106 agreement dated 27 February 2017 in connection with planning permission which had been granted for a large development including 5,750 homes together with commercial and other uses. Central to the inspector’s decision was the question as to whether the viability or otherwise of the scheme and the effect of an obligation and other obligations on viability, is relevant to whether an obligation serves a useful purpose.

The appeals have a long history, which I suspect is far from concluded. The position is not wholly clear but it seems that an initial application to modify or discharge various obligations was submitted in 2022 before the expiry of five years when the local planning authority at that time would have had a broad discretion as to whether to agree to the application (given that an appeal would not lie under section 106B in relation to such an application). After an initial judicial review that was settled, the applicant commenced a second set of judicial review proceedings, alleging that Ashford Borough Council and Kent County Council were wrong to conclude that viability of the development was not a relevant consideration under section 106A and that in any event in their consideration of the issue they erred in law. Following a renewal hearing in March 2022, the claim was held by Lieven J to be unarguable. On the specific point as to whether viability is a material consideration, she “remain[ed] unconvinced that it is not a material consideration”. However she considered that the councils had properly taken it into account. “I am not going to consider whether or not viability was legally a material consideration because that is a somewhat complicated point of law and would involve considering a number of previous cases. It is sufficient for the purposes of ground 1 that the local authorities in this case did consider viability with some care and detail…”

There was then a further application, presumably by which time the five years had expired, which was the subject of the appeals considered by the inspector (two appeal references – one for obligations in the agreement enforceable by Ashford Borough Council, the other for obligations enforceable by Kent County Council). Some of the requests for modifications were withdrawn but there was still a long list.

After an eight day inquiry the inspector (solicitor Grahame Kean) disagreed that the effect of an obligation and other obligations on viability, may be relevant to whether an obligation serves a useful purpose (see paragraph 33). He goes on:

“34. An obligation must itself be soundly based on established criteria, ie it must be necessary to make a development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind to the development. If, say an obligation fails these criteria but requires some act unconnected to or at odds with the development, the obligation would be liable to be struck down as invalid. However, in a s106A application the question is different from the legitimacy of the obligation itself. As counsel for the Appellant accepted, the obligation must have been entered into for a planning purpose in the first place.10 It would be rare for the useful purpose not to be a planning one but as noted, the question under s106A is whether the obligation serves any useful purpose, not just a useful planning purpose.

35. The Appellant’s counsel claims that “in the present case, frustrating the development goes to the planning purpose”. Counsel might not have intended to refer to a deliberate attempt to frustrate a development as much as an objectively assessed outcome due to acts or omissions of local planning authorities. At any rate there is no evidence of any deliberate attempt to frustrate the development and if there were, s106A would not be the appropriate way to deal that scenario.

36. Furthermore, if a planning obligation is duly completed, although it may have the effect of “frustrating” the development in the sense that it prevents progress in the eyes of a developer unless and until certain acts are performed, and although ultimately circumstances may obtain such that it is no longer regarded (by some at least) as a viable project, that seems to me a consequence, and not part of the original purpose or reason for exacting the obligation in the first place.

37. The existence of an obligation, in the context of a development scheme, is to make development acceptable in planning terms. That is its quintessential purpose. The statutory criteria are simple and do not refer to the viability of the development. The obligations have a contractual nature, albeit statutorily based, which it is in the interests of the parties to be able to enforce, the one against the other, and subject only to limited exceptions set out in s106 that allow discharge or modification. Since they are limited exceptions that derogate from the principle of contractual enforceability, it also seems arguable that exceptions should be strictly applied.

38. An obligation can have a useful purpose of preventing development or further development until performed. This may make it inherently impossible, for financially viability reasons, to carry out or complete a development, but that does not necessarily deny the usefulness of the purpose in preventing a development that would otherwise be unacceptable in planning terms. Circumstances may throw light on whether the purpose continues to be “useful” but viability issues would not transcend the basic question of whether the obligation continues to meet any useful purpose.”

Faced with such a spread of requested modifications (including, in relation to affordable housing, requested modifications as to tenure requirements and delivery triggers), the inspector considered that the “evidence is not so clear and unambiguous as to persuade me that unless the obligations in the s106 Agreement were discharged or modified all as requested, the scheme would in fact be rendered financially unviable and unable to proceed.”

This may all be justified on the particular facts, I don’t know. However, standing back, if the inspector’s approach is that an obligation relating to, say, the provision of a particular percentage of affordable housing, still serves a useful purpose if the evidence were to show that unless that percentage is reduced (or for instance the tenure mix altered or the trigger delayed) the development will not proceed, and that with the modification there is every prospect of the development proceeding, resulting in actual provision of affordable housing (albeit a lower percentage than was initially promised), is this approach correct? And if so, where is there any common sense in it – where really is the “useful purpose”? – and what can be done? In a situation like this, rather than defer progress on development indefinitely, is the developer really to go back to the very beginning, to prepare and submit a fresh application for planning permission, delaying any delivery for many years and at frankly massive cost? The lack of any proportionate mechanism to reflect current economic circumstances, with any necessary protections, would be surely a scandal?

Simon Ricketts, 25 January 2026

Personal views, et cetera

If It’s Not One Thing It’s The Other

Cyber attacks.

Almost two months on, the incident on 24 November 2025 which affected an IT system shared by Westminster City Council, the Royal Borough of Kensington and the London Borough of Hammersmith and Fulham is still causing delays in the processing of planning applications.

Westminster City Council confirmed on 14 January 2026 that many of its functions continue to be impeded. As to its planning functions, it is currently relying on manual processes and is only “making decisions on those [planning applications] that don’t require public or external consultation”(so, not many at all I assume!). It states in a series of FAQs that section 106 agreements are not being completed and CIL liability notices are unable to be issued. I’m sure that this is stressful for those working within the organisation but imagine the knock-on implications for development and for those of us advising those developers affected!

Similarly, RBKC has confirmed that it is unable to start processing planning applications that are submitted. Some data has apparently been copied and taken – and one can only assume that this may include personal information that would be redacted from that which would otherwise be publicly available. I hope this doesn’t impede people’s willingness in the future to engage in sensitive planning issues.

I can’t see equivalent advice on Hammersmith and Fulham Council’s website as to any current implications for its service, but Planning magazine reported on 13 January 2026 that the council has said that while it shares “some legacy systems” with the affected authorities, it had been able to “successfully isolate and safeguard our network.”

This is of course not the first time that local government IT systems have been compromised like this. That Planning magazine piece references attacks on Tewkesbury Borough Council and Gloucestershire City Council in 2022. People may also remember a disruptive attack on Hackney Council’s system in 2020 and there was also one on Redcar and Cleveland Council that year which is reported to have cost the council over £10m.

I’m sure this is all front of mind both for existing councils’ IT teams and for those planning for the move to unitary authorities. I just wonder if the associated business risk is being fully factored in by developers and investors. Does their insurance cover losses caused by resultant delays in receiving planning decisions? And what if a similar incident were to affect the Planning Inspectorate for instance? What back-up plans do organisations have?

And, finally, a point not directly related to any of this but relating to local government IT systems. Are the resources being made available to make sure that local government reorganisation includes full integration of authorities’ digital services? Search for a planning application on Buckinghamshire Council’s planning portal for instance and almost six years on you still undertake a memory test as to the geographic boundaries of its three former constituent authorities…

This is the 500th Simonicity post. Subscription is still free and, once we finalise the planning, subscribers should be receiving an email before too long now with details of a special event that is being planned to mark the blog’s tenth anniversary in June.

Simon Ricketts, 17 January 2026

Personal views, et cetera

Consultee Consultation

Consultation deadline approaching: responses are due by Tuesday 13 January 2026 to MHCLG’s 18 November 2025 consultation document on reforms to the statutory consultee system .

The RTPI has already published its response which makes some sensible points.

The current statutory consultees list is a long one. However,  I hope the government won’t just focus on reducing the number of applications where input from statutory consultees is required, and on the timeliness of initial responses from statutory consultees. To my mind it’s as much about the quality of those responses (constructive, informed by an understanding of the application in question, with the potential for swift dialogue to address issues raised),  about those statutory consultees having stable, clear, positively-minded guidance to manage potential applicants’ expectations) and about those statutory consultees being well-resourced with experienced, accessible, people.

Some quick and random thoughts:

The actions of Natural England in giving advice that has led in recent years to immediate vetoes on development in relation to e.g. the impact of nutrients or recreational pressure or indeed water abstraction issues on protected areas: why was advance notice not given, an “amber” warning, before such disruption was caused? Could solutions have been found faster? Is there going to be any sort of Parliamentary inquiry into how this was all allowed to happen? Will the impending work on environmental delivery plans mark any sort of turning point? We shall see.

As a former trustee of Theatres Trust I was disappointed to see the proposal that the trust should have its statutory consultee status removed. I can’t see what will be gained by this and indeed I see risks arising of unacceptable, or ill-advised, development slipping through the net. Theatres have high community value. TT always responds within the statutory deadline and in recent years (in 345 responses between 2022 and 2024) has only objected to one residential scheme (and that was only for seven homes!). Conversely TT’s responses have secured necessary changes to schemes to protect the operation of theatres. Isn’t this how the system is meant to work?

Conversely, I’ve heard depressing stories about the approach of, for instance, the Environment Agency on flood risk issues – objecting to applications for approval of reserved matters or the discharge of conditions on the back of changes in its flood maps. Memories perhaps of the nutrient neutrality vetoes affecting consented schemes that led to C G Fry & Son Limited v Secretary of State (Supreme Court, 22 October 2025) – issues of principle really should have been resolved by the time planning permission has been granted, rather than being re-opened by the backdoor.

Where are these thoughts leading? Maybe just to a conclusion that there is no “one size fits all” approach to this. With powers should come responsibility and so, as is indeed proposed in the consultation paper, the performance of every statutory consultee should regularly be scrutinised, including as to how constructively it is engaging with the application process – that is what will make the difference. And to have experienced planners within each local planning authority who can weigh consultee responses in the balance, pushing back and questioning where necessary.

Finally, it’s worth bearing in mind the potential impact of the draft NPPF once it is finalised. Paragraph DM3(d) of the draft:

“Consult statutory or internal consultees only where it is necessary to do so. Decisions on development proposals should not be delayed in order to secure advice from a statutory or internal consultee beyond their statutory deadlines unless there is insufficient information to make the decision or more detailed advice may enable an approval rather than a refusal.”

Simon Ricketts, 11 January 2026

Personal views, et cetera

SDO Speedwagon

This is about a vehicle for consenting major projects fast.

I don’t know if you have caught up yet with Sam Stafford’s and Zack Simons KC’s end of year chat: the #Planoraks Awards 2025 50 Shades of Planning podcast episode? In their analysis of the year just past, our small corner of it anyway, Zack awarded “Consent of the Year” to the Special Development Order laid before Parliament on 16 December 2025, due to come into force on 12 January 2026, which will authorise the construction of Universal’s proposed theme park and associated works at Kempston Hardwick, Bedford.

The relevant documents are worth reading, not just in case the same procedure may one day be appropriate for another mega-development, but to understand the structure adopted, in case elements can read across to other consenting processes.

Let’s start with the basics.

The Secretary of State has the power to make a special development order (“SDO”) under existing powers in section 59(3)(b) of the TCPA 1990. SDOs have been used to grant permission for various specified developments over the years.  Recently, SDOs have been used, for instance,  to grant temporary permission for inland border facilities and for providing facilities for the accommodation of asylum seekers. An SDO may only apply to the development of the land specified in the SDO. An SDO may (a) grant planning permission for a specified development or class of development or (b) provide for the local planning authority to grant planning permission in accordance with the provisions of the SDO. An SDO is made by statutory instrument which is subject to the negative resolution process i.e. it becomes law on the day the Secretary of State signs it and automatically remains law unless a motion – or ‘prayer’ – to reject it is agreed by either House of Parliament within 40 sitting days.

The SDO procedure is subject to the potential requirement for environmental impact assessment (with the same criteria applying as for usual planning applications).  Unless EIA is required (in which case the environmental statement must be publicised for at least 30 days), there are no formal consultation or publicity requirements in relation to SDOs. It is for the Secretary of State to determine what if any, consultation and public engagement it would be appropriate in the circumstances to carry out. Similarly, there is no prescription as to the minimum level of detail to be provided in supporting documentation before the Secretary of State proceeds to make an SDO. MHCLG’s website just has this page with a brief summary of the background and links to recent Orders.

Universal’s proposal is vast. As described in the explanatory memorandum to the Order:

“The instrument grants planning permission (subject to conditions and limitations) for an Entertainment Resort Complex (ERC) and associated development at the former brickworks and neighbouring land at Kempston Hardwick, Bedford (‘the site’). The site is around 268 hectares, and the proposal includes theme park(s), visitor accommodation, retail, dining, sports and conference facilities and associated landscaping and utility infrastructure. It also provides improvements to the travel network including new entrances and exits from the A421, a bigger train station on the Thameslink / Midland Main Line at Wixams, and upgrades to Manor Road and other local roads.”

“The ERC would accommodate at least 8.5 million visitors a year and serve a domestic and international market. While there are several theme parks in the United Kingdom, there is nothing on the scale of the proposed development. The nearest similar development is Disneyland Paris.”

Universal submitted its formal request to MHCLG for an SDO on 26 June 2025, comprising a cover letter, ownership certificates, a guide to the planning proposal, proposed conditions, parameter plans, a series of proposed operative and controlling documents, a 19 chapter long environmental statement and various other documents including a planning statement, design and access statement etc etc – a package that will be familiar to anyone used to major outline or hybrid planning applications. There is a public engagement report setting out the extent of engagement undertaken to that point with relevant authorities and organisations and the public, starting with Bedford Borough Council (supportive throughout) and “strategically important bodies” from September 2022. Agreement in principle between the government and Universal as to the nature of Universal’s investment was announced in a written ministerial statement on 22 April 2025.

As set out in the explanatory memorandum, following submission of the formal SDO request in June 2025:

“Public consultation took place from 3 July 2025 for 8 weeks. The plans, drawings, Environmental Statement (ES) and other documents that accompanied the request for planning permission were published on Gov.uk and made available at local and national offices for in-person viewing and consideration. Representations were invited from the public as well as specific individuals and organisations notified directly by MHCLG. Those notified included statutory bodies, landowners and occupiers of property on, and next to, the site, railway operators, and interested or affected parties.

Just over 500 representations were received by the close of the consultation period; late representations were received and also considered. Most of the representations (circa 80%) were submitted via an online Citizen Space survey. Of the circa 400 Citizen Space survey responses, around 75% supported the development, around 16% objected, the rest were neutral. Two-thirds of online respondents said they lived locally.”

The Secretary of State has published a statement of reasons for the grant of planning permission. The statement summarises the results of the consultation undertaken and the extent to which measures have been incorporated or issues addressed in the Order, before reaching reasoned conclusions on the project’s likely effects on the environment, conditions, mitigation and monitoring measures. The national and local policy context is considered as well as the main considerations including: transport, highway safety and capacity; ground conditions, land stability and contamination; heritage; ecology and biodiversity; population and human health; flood risk, drainage and water resources; design, parameters and standards; climate change and resilience; economy and employment; landscape and visual effects, and loss of agricultural land.

The Secretary of State then reaches his overall judgement as to the level of benefit/harm, and weight, he applies to each issue, before concluding as follows:

“There are several harms which weighed against the Proposal. These include highway capacity, heritage, landscape and visual effects, loss of BMV land, noise, air quality, effect on services and impacts upon the living conditions for some local residents. Several matters were neutral. A range of conditions and limitations was proposed to mitigate the adverse effects as far as practicable.  However, even after mitigation, it is almost inevitable that some harm would result from a development of this scale and nature. These adverse impacts, taken together, attract significant weight. 

On the other hand, the Proposal would deliver many benefits, including the delivery of a world class Entertainment Resort Complex to the benefit of the UK tourism industry and to the local and national economies, on an unprecedented scale; provide a substantial number of jobs; re-use previously developed land; and remediate contaminated land. Highway and rail improvements that would enhance local transport infrastructure and, potentially, mitigate constraints on other development have also been committed to as part of the Proposal. Together, these benefits attract very substantial weight.

The Secretary of State concluded that, overall, the benefits would far outweigh the identified harms and that planning permission should be granted subject to the necessary controls set out in the Order.”

Finally, it’s worth looking at the SDO itself, snappily titled The Town and Country Planning (Entertainment Resort Complex, Bedford) Special Development (No. 2) Order 2025, to understand the nature of the various controls in place. There are many definitions! The Order is most akin to a Development Consent Order for a nationally strategic infrastructure project (although functionally only delivers planning permission rather than any other consents and approvals that may be required under other legislation). Schedule 2 sets out the various classes of development permitted by virtue of the SDO. Certain categories of works may only be carried out in connection with defined functionally associated works.  The works may only be carried out in accordance with the 90 conditions and limitations set out in Schedule 3. Certain conditions and limitations require the “site controller” (which must initially be designated by Universal City Studios LLC before any authorised development may begin) to submit documents for approval or validation. There are procedures to be followed where the site controller wishes to modify any of the reference documents (set out in Schedule 1), controlling documents or any endorsement condition (i.e. a condition requiring any particular details to be approved or validated) and there are requirements as to publication of documents. The Order legislates for any overlap with General Permitted Development Order rights and with any development potentially to be carried out in connection with East-West Rail within a specified safeguarded area.

Formal approval for a project of this scale and complexity within six months or so of submission. Surely there are lessons to be drawn as to how in this country the consenting process is managed for other projects where significant public benefits arise?

Simon Ricketts, 3 January 2026

Personal views, et cetera

NB By way of explanation for those not of a certain age, REO Speedwagon are a US soft rock band that were formed, crumbs, 60 years ago. Responsible amongst other things for possibly one of the worst album titles ever: You Can Tune a Piano, but You Can’t Tuna Fish.

Framework Good Work

I described MHCLG’s and the Mayor of London’s proposed emergency measures for London as “underwhelming” in my 13 December 2025 blog post.

By contrast, maybe the only word for this week’s draft revised NPPF, accompanying consultation paper (225 questions to respond to by 10 March 2026) and the Planning and Infrastructure Act 2025 is “overwhelming”.

However, in suitably positive and festive mode, the theme of this blog post is as follows:

🎵 It’s beginning to feel a lot like we are moving towards a coherent, understandable, English planning system 🎵 and for that the relevant ministers and civil servants deserve a couple of weeks’ rest and reflection before the hard work begins again (because it certainly isn’t all finished yet…).

After all, doesn’t the following summary start to make sense to someone fresh to all this? In a way that the system hasn’t since the abolition of the regional strategies in 2010, or indeed long before that in much simpler times?

At a national level:

  • a comprehensive set of numbered policies setting out the approach to development plan-making to be taken by plan-making authorities at three levels: strategic (via procedures the framework of which is set out in the 2025 Act); local (via procedures the framework for which is set out in LURA 2023), and neighbourhood;
  • a comprehensive set of numbered policies to be followed when planning applications and appeals are determined, written in a rules-based style so as to minimise ambiguity – policies which (from the date the draft NPPF is finalised) override any inconsistent policies in any development plan (unless those policies have been examined and adopted against the finalised NPPF).

Planning practice guidance will still have an important “but supporting” role to national planning policy “and its status should be regarded in that light”.

At a strategic level (the boundaries of which in many cases will be determined in due course via the devolution process happening meanwhile in another part of the forest):

  • a comprehensive set of spatial development strategies focused on providing a clear spatial framework for investment and growth, including new housing, looking forward at least 20 years (to be altered at least every five years to reflect any changes to housing requirements for the local planning authorities in the strategy area and to be replaced at least every ten years). This will include apportioning to local planning authorities in the strategy area the objectively assessed needs for housing and other uses which those authorities should plan for in their local plans and identifying “broad locations for strategic development including new settlements, major urban extensions, major cross-boundary development and key locations with the potential for new homes and jobs” as well as strategic infrastructure requirements. There should be no duplication, substantive restatement or modification of the content of the NPPF, unless any policy in the NPPF so directs.

At a local level (the boundaries of which in many cases will be determined in due course via the local government reorganisation process happening meanwhile in yet another part of the forest):

  • slimmed-down local plans, to be prepared and adopted within 30 months, setting out a vision with a limited number of measurable outcomes, policies for minimum amounts of development to be provided for, land allocations (with a specified amount of detail), broad locations for growth, infrastructure requirements to support delivery of the plan and other policies “only where these support the delivery of specific allocated sites”. There should be no duplication, substantive restatement or modification of the content of the NPPF, unless any policy in the NPPF so directs. There must be “general conformity” with the relevant spatial development strategy. Supplementary plans may be used to address specific issues, subject to constraints set out in the NPPF.

At a neighbourhood level (optional):

  • allocating land to meet the development needs of the neighbourhood (with a prohibition on promoting less development than provided for in other parts of the development plan for the area) and policies to address particular local issues. Neighbourhood plans should accord with the plan-making policies in the NPPF and again there should be no duplication, substantive restatement or modification of the content of the NPPF.

At each level (strategic; local; neighbourhood) a specific set of tests is set out against which draft plans will be examined. There are specific requirements for plan-making authorities at each level to engage with infrastructure providers, other relevant plan-making bodies and other relevant bodies and to demonstrate this by way of statements of common ground. Expectations as to developer contributions should be set at the relevant level. Qualitative standards for development should not cover matters already addressed by Building Regulations with limited specific exceptions and should not cover matters relating to the construction or layout of buildings unless they are to implement the nationally described space standard. Plans are to be published in a searchable digital format – no more PDFs!

Aside from there being a more cohesive, tiered, policy basis for decision making, the decision-making process will be made simpler and more predictable by way of simplified procedural requirements for schemes of less than 50 dwellings, by way of increasing the standardisation of section 106 agreements and viability inputs and by way of greater delegation of decision-making to officers.

I’m focusing here more upon the structural framework of the system – the hardware as it were – rather than the substantive direction of the policies – the software as it were. But the software also now works more smoothly. Rather than the previous tilted balance, with its various caveats over time and footnotes, we have, front and centre, policy S4 setting out the principles to be applied to development within settlements and policy S5 setting out the principles of development outside settlements (including the new criteria for housing and mixed-use development within reasonable walking distance of railway stations which meet a specifically defined level of connectivity to jobs and services (with those criteria also now providing a new category of not inappropriate development in the green belt)) and the drive towards densification, a more diverse mix of homes, focus on particular areas and sectors (e.g. those names in the government’s growth strategy, AI growth zones, logistics, town centres and agricultural and rural development), minerals, a vision-led approach to transport, addressing climate change, a tidying up of heritage policies and finally a more strategic approach to the natural environment (with the read-across to local nature recovery strategies as well as the environmental delivery plans provided for within the 2025 Act).

Complicated? Inevitably. But refreshingly it does all hang together. In fact, the new system is probably more intimidating for all of us who have to get to grips with this quite different approach and unlearn a whole host of previous policy tests and workarounds than for someone coming at this afresh. Any attempt at a straightforward mark-up of changes from the current December 2024 NPPF is doomed to failure but this side-by-side comparison of the paragraphs of the draft revised NPPF as against the relevant paragraphs of the existing 2024 NPPF may help (for which I thank my colleagues Archie Hunter and Adam Choudhury).

What are the challenges ahead?

  • How to get there from here, i.e. transition. The NPPF’s decision-making policies will have full effect from the day that the final version of the document is published. We are of course going to have to wait longer for spatial development strategies (individual timescales dependent on dependent on individual devolution processes but against the government’s ambition of a full suite of adopted SDSs by 2029) and indeed the next generation of local plans (27 November 2025 written ministerial statement: “Local planning authorities covered by the NPPF transitional arrangements will have to commence formal plan making (Gateway 1) by 31 October 2026, while those that have a plan that is already over five years old must commence by 30 April 2027”).
  • Politics and administrative processes. The planning system is under major reconstruction but of course so is the whole architecture of sub-national government. The worst that could happen would be for any of these reconstruction jobs to be left half-done. Continuity is important and if this is going to work, for the long-term improvement of the whole system, those elected to prepare plans need to proceed in a way which is consistent with the timescales and objectives that have been set out – and to avoid every understandable temptation in a period of transition to wait first for the next jigsaw piece to fall into place.

Have a good Christmas everyone and don’t worry: I shall switch back to Grinch-mode in the new year I feel sure.

Simon Ricketts, 19 December 2025

Personal views, et cetera

The Proposed London Housing Emergency Measures Package Is Underwhelming

That is the message I have been receiving in many discussions with developers and advisors since consultation started on MHCLG’s Proposed London Emergency Housing Package and The Mayor of London’s draft Support for Housebuilding London Plan Guidance, both documents published on 27 November 2025 for consultation until 22 January 2026.

I’m picking up that the conclusion is reluctant. Clearly, it is helpful that the drought of new housing activity in London has been recognised. Clearly, it is appreciated that MHCLG and the London Mayor have worked hard at a co-ordinated package as between them which moves significantly, and no doubt with much internal organisational pain, from the previous policy position in terms of affordable housing expectations, in terms of the usual approach to CIL and in terms of some aspects of housing standards. There is also a dilemma on the part of the industry: this is an emergency; measures are needed now; if this set of proposals has to be ditched and replaced with a more effective package, we are just losing more time, unless the industry can point with some unanimity towards practical, easily implemented, improvements to what is on offer.

But the reality is that the current package (1) will not be enough and (2) is too caveated and conditional to provide the crucial reassurance that is needed to those who hold the strings in terms of funding or financing. From what I hear I’m not at all sure that the Mayor’s new time-limited route is even likely to be used, as opposed to continued reliance on viability testing.

Following the initial joint announcement on 23 October 2025 I wrote a blog post on 1 November 2025 setting out 4 Key Asks For The London Housebuilding Support Package Consultation. None were taken on board in the consultation drafts. Let’s hope that there still is time before the package is finalised.

To follow the structure of my previous post:

Should there be more focus on stalled sites that already have planning permission?

Of course!

Why ignore the lowest hanging fruit? The opportunity has now passed for primary legislation to reintroduce section 106BA (which could have been a late bolt-on to the Planning and Infrastructure Bill). But why not by ministerial direction reduce the minimum period of five years for the purpose of being able to make applications under section 106A, which are capable of appeal, to say two years – and introduce guidance as to MHCLG’s interpretation of “useful purpose” (of course the courts’ legal interpretation ultimately will be what counts but guidance will still be useful!)?  And in any event introduce firm guidance to local planning authorities that they should approach requests for deeds of variation on viability grounds positively where the case has been made (and set out in the guidance what will be sufficient to make that case)?

Is late stage (as opposed to early stage) review necessary in relation to the proposed “time-limited planning route”?

No!

The uncertainties caused to funders by the mere existence of any review mechanism the application of which is outside their control has a deadening effect on developers’ ability to fund schemes, utterly disproportionate to the likelihood that any review mechanism will ever deliver any material amount of additional affordable housing, schemes are so underwater. And unnecessary uncertainty has been created because the time-limited route envisages a different set of mechanisms to those which currently exist.

The simple change would be for the Mayor’s LPG to specify that for a time-limited period the fast-track thresholds will be reduced from 35% and 50% to 20% and 35% with the structure remaining exactly the same as to when review mechanisms will be required and how they will operate. A bucketload of uncertainty would be immediately removed.

Are there unnecessary difficulties with introducing a viability test into the proposed CIL relief?

Yes!

In fact, this whole new intended structure for 50 to 80% relief from borough CIL is going to be disproportionately complex given that it will rarely make the difference between a project going ahead or not (and with the prospect of later clawback, funders will always assume the worst in any event so it just won’t help bring them over the line). What I’m being told is that where CIL is a killer is on cash flow. On viability – the overall go/stop on development – it is of only marginal influence.

If there is going to be any tweaking of the Regulations:

  • Why not allow for payment at a later stage (you recall that when the infrastructure levy was touted by the previous government as  replacement for CIL it was to be payable at upon completion of the development so would there be such a problem with it being paid, say, on occupation)? Boroughs don’t spend the monies upon receipt – timing isn’t critical to them! And Mayoral CIL is simply paying down long-term debt in relation to Crossrail.
  • Require all boroughs to switch on the potential for exceptional circumstances relief and see what can be done to simplify the process.

Ahead of any Regulations, just lean on the boroughs to switch on exceptional circumstances relief (if they refuse that is a warning sign in itself) and introduce advice as to the evidence that should normally be sufficient. Even that would help.

And incidentally this would actually also would help SMEs, currently shut out of the relief proposed in the consultation document by a combination of the £500,000 liability threshold and the proposed £25,000 application fee. And while we’re at it, extend this beyond residential C3 development.

Are the proposed additional powers to be given to the Mayor enough?

Probably, but…

It really would be useful if the Mayor could call in schemes of 50 units or more even before the borough is minded to refuse them, as long as the statutory determination period has passed – thereby reflecting the current arrangements in the Mayor of London Order 2008 for schemes of 150 units or more.

Final thoughts

Of course the proposed additional grant funding for affordable housing is welcome. But inevitably it isn’t enough.

Surely, we all agree that the thrust of all these measures is not good to the extent that, consistent with the operation of the existing system, it assumes that affordable housing, including social housing (for which there is such a desperate need in the capital) is what has to give in order to enable development to proceed. How can we move to a system where the delivery of social housing is not reliant on, effectively, an affordable housing tax imposed on residential development, given that the current model is not working?

To end on a positive note, I was really cheered to hear about Homes For People We Need campaign and to read their report Making Social Rent Homes Viable. Whilst it identifies that £18.83 billion is required to develop 90,000 social rent homes per year, there is a strong investment case for substantial government subsidy, given that temporary accommodation costs of £2.8 billion annually could in theory service index-linked bonds worth circa £160 billion. “In theory an investment by HM Treasury to build c.130,000 Social Rent homes for those families currently in temporary accommodation, assuming £209,000 subsidy per home and thus a total subsidy of £27.2bn, could reduce the current bill for Temporary Accommodation to zero”.

There are a number of strategic recommendations and suggested policy reforms in the report:

“• Social Housing Tax Credits represent a promising approach, enabling private capital deployment now in exchange for future tax relief.

• Section 106 Agreements should fix affordable housing values at the planning stage to improve market efficiency.

• Right to Buy should be further reformed to preserve the affordable housing stock.

• ‘Flex Rent’ approaches linking rents to household income should be considered to optimise revenue generation whilst maintaining affordability.

• The Housing Association sector desperately needs recapitalisation in addition to the recent 10-year rent settlement.”

Santa hat-tip to Thursday’s Planning After Dark Podcast episode Santa Hats, Social Rent and Squeaky Leather Trousers for the chat with Grainger’s Michael Keaveney which introduced me to this.

In summary I hope that what is arrived at is fast, simple, measures to help meet the current housing and affordable housing emergency. But then I hope that there is a proper longer-term solution along the lines promoted by this report to help meet the underlying and remaining (national not just London) housing and affordable housing crisis. The current section 106 model is not working!

Simon Ricketts, 13 December 2025

Personal views, et cetera

Local Plans, LGR, Devolution: Goal Posts Moving On A Sloping Pitch For A Game Of Indeterminate Length With Shifting Rules & Teams

Am I wrong?

Let’s ease ourselves in gently…

Pragmatism, co-operation

I covered Matthew Pennycook’s 30 July 2024 letter to the Planning Inspectorate’s chief executive Paul Morrison in my 11 August 2024 blog post Plan-Making, Or, The Olympic Sport Of Trying To Hit A Slowly Moving Target, which announced a reversal of the previous Government’s “expectation that Inspectors should operate “pragmatically” during local plan examinations to allow deficient plans to be ‘fixed’ at examination. This has gone too far and has perversely led to years of delays to local plan examinations without a guarantee that the plans will ever be found sound, or that the local authorities will take the decisions necessary to get them over the line. This has to end.

[…]

Pragmatism should be used only where it is likely a plan is capable of being found sound with limited additional work to address soundness issues. Any pauses to undertake additional work should usually take no more than six months overall. Pragmatism should not be used to address fundamental issues with the soundness of a plan, which would be likely to require pausing or delaying the examination process for more than six months overall. Local authorities should provide regular progress updates of their work to the Planning Inspector during any agreed pause.”

Muscular stuff in that heady first month. Principles above pragmatism and the delays thereby arising, addressing the problem of submitted plans being allowed to limp on for years through long examinations, through authorities being given time by inspectors to try to fix soundness issues arising.  

But then, more recently, in his 9 October 2025 letter to Paul Morrison, pragmatism isn’t dead after all:

“In advance of the new plan-making system and mechanisms for cross-boundary cooperation coming into force, the final set of local plans being delivered within the current system remain essential to facilitating the effective delivery of housing, jobs and infrastructure. It is therefore critical that Inspectors approach examinations of current system plans with the appropriate degree of flexibility. The evidencing of expectations to establish whether the legal and soundness tests have been met – including with respect to the Duty to Cooperate – should be proportionate to the context in which plans in the existing system are being prepared. I very much welcome that in some cases Inspectors are already exercising a degree of flexibility to expedite adoption of local plans. For example, I note recent pragmatic decisions to proceed toward adoption in instances where a five-year housing land supply cannot be evidenced at the point of adoption but where the plan significantly boosts supply and still meets housing needs over the plan period or by providing additional opportunities to clarify compliance with the Duty to Cooperate. Relevant Planning Practice Guidance provides advice in respect of both of these matters, and will no doubt be of ongoing assistance in assessing whether proportionate evidence has been provided or considering whether stepped housing requirements may be justified.

It remains important that we do not see the adoption of poor-quality plans, or accept overly long examinations (I am grateful for the action that Inspectors have taken following my letter of 30 July 2024 in that regard). However, within those bounds, where plans are capable of being made adoptable, I want Inspectors to seek to do so in the examination process.”

It was unsurprising to see the pendulum swing back, because we aren’t ever really talking about, or dealing with, the planning system in isolation, are we? The three Ps in our world are planning, pragmatism and politics. Pragmatically, what is a plan-led system without … plans?

And p for pragmatism has been given extra oomph with the 27 November 2025 announcement that the forthcoming regulations that will specify how the new plan-making system is to work will (once made) immediately abolish the statutory duty to co-operate (i.e. affecting plan making under the current system as well). See the minister’s letter of that date to Paul Morrison :

“We intend to shortly lay regulations which will enable Local Planning Authorities (LPAs) to initiate formal preparation procedures for new-style plans. These Regulations will also have the effect of abolishing the Duty to Co-operate for the existing plan-making system.

As you know, the Duty to Co-operate (“the Duty”) was inserted into the Planning and Compulsory Purchase Act 2004, through the Localism Act 2011, to help bridge the gap in co-operation resulting from the abolition of regional planning. The Duty requires LPAs to “engage constructively, actively and on an ongoing basis” with neighbouring authorities whilst preparing their local plan. However, as noted in your letter of 30 October, the Duty as a legal provision has, at times, been difficult to comply with and has led to some notable local plan failures. This is in part because any shortcomings relating to the Duty cannot lawfully be remedied during examination.

The new plan-making system provided by the Levelling Up and Regeneration Act 2023 does not include the Duty. Instead, the new system will rely on revised national policy and the new tier of strategic planning to ensure effective co-operation between plan-making authorities. The Regulations for the new system will also ‘save’ the current plan-making system for a period to allow emerging plans to progress to examination by 31 December 2026. Given the above, and to help drive local plans to adoption as quickly as possible and progress towards our objective of universal local plan coverage, we have decided not to ‘save’ the Duty, thereby removing this requirement for plans in the current system.

The Duty will therefore cease to apply when the Regulations come into force early next year, including for plans at examination at that point. On the basis of the government’s firm intention to abolish the Duty for the current system, examining Inspectors may wish to begin any necessary dialogue with LPAs in advance of the Regulations coming into effect, with reference to this letter. Of course, LPAs should continue to collaborate across their boundaries, including on unmet development needs from neighbouring areas and Inspectors should continue to examine plans in line with the policies in the NPPF on ‘maintaining effective co-operation’.”

This is perilously close to retrospective legislation it seems to me but, pragmatically, politically, a potential lifeline has been thrown to, for instance, the Mid-Sussex local plan and the South Oxfordshire and Vale of White Horse joint local plan. For some background on the Mid-Sussex local plan duty to cooperate issue, see my 7 June 2025 blog post Not Sure Why The Media Was So Focused On Musk v Trump This Week Given What Has Been Happening In Sussex since when the inspector, in a letter dated 3 November 2025,  had – can we say grudgingly? – agreed to hold a further hearing session in January 2026. The South Oxfordshire and Vale of White Horse joint local plan inspectors had written to the two authorities on 26 September 2025 indicating that they considered that the duty to cooperate had not been met. Since the minister’s 27 November 2025 announcement they have now written again to the authorities in a letter dated 1 December 2025 seeking their views on the implications of the announcement for the examination and “in particular how the Councils wish to proceed”.

Plan-making deadlines

Two reasons why the notion of a “plan-led” system is increasingly theoretical are surely:

  • Obviously, the continuing lack of up-to-date local plan coverage across England.
  • The increasingly impenetrable nature of the local plans system, already with plans proceeding under the previous and current NPPFs and now to overlap with the proposed new system, supposedly to be faster but that was initially designed with the concept of (a) statutory national development management policies (we will see if the non-statutory fudge makes a practical difference in that respect) so as to narrow down their role basically to the allocation of land for development and the designation of land for specific forms of protection and (b) a now abandoned watered-down “soundness” test.

Is a simpler, speedier system on the horizon? Hmm.

In his Q&A session with Sam Stafford at the LPDF conference on 27 November 2025, Matthew Pennycook revealed that timescales for authorities to prepare new style local plans would in some instances be brought forward, rather than the previously proposed phased introduction. That day we then had a press statement (New local plan system launching early 2026: latest update), a written ministerial statement (Reforming Local Plan-Making) and a detailed Plan-making regulations explainer.

From the written ministerial statement:

“Having considered carefully responses to the earlier consultation, I am announcing today that we no longer intend to roll the system out in a series of plan-making ‘waves’. Instead, local planning authorities will be encouraged to bring plans forward as soon as possible following the commencement of the regulations early in the New Year.

Whilst authorities will have discretion over how soon they start their plan, regulations will set out final ‘backstop’ dates for when plan-making must legally have commenced. Local planning authorities covered by the NPPF transitional arrangements will have to commence formal plan making (Gateway 1) by 31 October 2026, while those that have a plan that is already over five years old must commence by 30 April 2027. Further information will be set out in the regulations and in guidance.”

From the explainer:

“In general, the regulations will require that local planning authorities publish their Notice to Commence Plan-Making within 4 years and 8 months of adopting their existing local plan, or by 31 December 2026, whichever is the latest. They must then begin preparation of a new local plan (publish their gateway 1 self-assessment form) within 5 years of adopting their existing local plan, or by 30 April 2027, whichever is the later.

However local planning authorities who submitted a plan for examination on or before 12 March 2025 with an emerging housing requirement that was meeting less than 80% of local housing need will be required by regulations to publish their Notice to Commence Plan-Making by 30 June 2026 and their Gateway 1 self-assessment by 31 October 2026. This will not apply to areas where there is an operative Spatial Development Strategy which provides the housing requirement for the relevant areas. 

If an existing system plan is withdrawn from examination prior to adoption, regulations will require local planning authorities to publish their Notice to Commence Plan-Making in the new system at the same time as the plan is withdrawn, and to publish their Gateway 1 self-assessment 4 months later.

Further details on the initial rollout of the new plan-making system will be set out on Create or Update a Local Plan.

Supplementary Planning Documents (SPDs) will remain in force until planning authorities adopt a new style local plan or minerals and waste plan. The final adoption date for new SPDs will be 30 June 2026, to ensure any advanced emerging SPD can be adopted. 

These Regulations will also have the effect of abolishing the Duty to Co-operate for the existing plan-making system, by not saving this provision for plans progressing to examination in the existing system by 31 December 2026.”

Whilst in theory encouraging an earlier start to plan making sounds positive, in many areas these emerging plans could well get stalled by a combination of local government reorganisation and the incoming spatial development strategies.

The local government reorganisation map is still unclear, with authorities in two tier areas outside the devolution priority programme having now submitted their proposals by the 28 November 2025 deadline, apparently proposing more than 50 different potential configurations for ministers to consider (Exclusive: Over 50 LGR proposals sent to MHCLG – Local Government Chronicle, 3 December 2025). Elections for the new authorities are due in May 2027 ahead of going live in April 2028. How many current authorities will push through their plans to a conclusion ahead of, and in the face of, what lies ahead?

The map is also unclear as to what will be the new England-wide strategic tier. The government’s commitment was that the new spatial development strategies, with which in the future local plans should confirm, would be in place by 2029, but this looks increasingly unlikely. Yes it is all complex, but one wonders what role politics will increasingly play. Last week there was the unexpected announcement that Mayoral elections in four areas within the devolution priority programme, Greater Essex, Sussex and Brighton, Hampshire and the Solent, and Norfolk and Suffolk have been delayed from May 2026 to May 2028. There is apparently nothing to prevent the new strategic authorities, once created, from making progress with preparing SDSs ahead of their Mayors being elected but how does this work democratically?

Oh and in a couple of weeks we will see the new consultation draft NPPF, incorporating, we assume, more targeted sets of policies for plan making and for decision taking. And the latest set of housing delivery test outcomes. And throughout, p for politics…

Essay question for the festive period: Is our planning system in practice currently plan-led or application–led? And is this likely to change?

Lastly, thank you Paul Morrison for your work as chief executive of the Planning Inspectorate over the last three years. PINS is the main glue holding the current system together and its performance remains impressive. Congratulations to new interim chief executive Graham Stallwood. No pressure Graham!

Simon Ricketts, 6 December 2025

Personal views, et cetera

Sam Stafford and minister Matthew Pennycook MP at LPDF conference 27 November 2025