Ps In A Pod: Politics, Planning, Protest & Prevarication

Planning still appears to have been taken hostage by internal Tory political infighting. See e.g. Tory backbenchers rebel over national housing targets (SP Broadway, 2 December 2022).

In a more innocent time, September 2014, I delivered a paper to the Oxford Joint Planning Law Conference, Heroes and Villains — Challenge and Protest in Planning: What’s a Developer To Do?   

Since then the antagonism seems to have increased and areas of common ground seem to reduced. Planning and heritage processes are frequently just another battleground in this time of global and cultural division. 

I was going to pull together a few more strands today, for instance on contested heritage (I’m conscious that I haven’t yet covered the Court of Appeal’s September 2022 ruling following the acquittal of the “Colston Four”), the closure by the Wellcome Collection of its “Medicine Man” gallery, on the battle for control of the National Trust and much else besides. 

But I’m just going to pick the most recent item from this week’s news. It’s possible  that politics played as much a role as planning in the decision on 1 December 2022 by the London Borough of Tower Hamlets’ Strategic Development Committee, against officers’ recommendations, to refuse planning permission for the redevelopment of Royal Mint Court, near the Tower of London, to establish a new Chinese Embassy (replacing its existing embassy on Portland Place), including “the refurbishment and restoration of the Johnson Smirke Building (Grade II listed), partial demolition, remodelling and refurbishment of Seaman’s Registry (Grade II listed), with alterations to the west elevation of the building, the retention, part demolition, alterations and extensions to Murray House and Dexter House, the erection of a standalone entrance pavilion building, alterations to the existing boundary wall and demolition of substation, associated public realm and landscaping, highway works, car and cycle parking and all ancillary and associated works.

51 objections had been received, raising a range of planning and non-planning objections. One has a sense of non-planning issues swirling around from the officer’s report which, after summarising the various planning and heritage based objections received, sets out the “non-material considerations” raised by objectors as including:

  • Concerned about the building becoming a secret police station
  • Concerned about the violent assault of protesters at the Manchester Chinese Consulate
  • Concerned about the actions of the Chinese government in relation to other countries and human rights record
  • All phone calls and fibre optic cables will be listened to as the site is adjacent to a BT telephone exchange”. 

The minutes are not yet available but I understand that the Committee resolved that the proposals would “affect the ‘safety and security’ of residents, such as those at next-door Royal Mint Estate, cause harm to heritage assets, impact the quality of the area as a tourist destination and have an impact on local police resourcing.”

The decision has attracted widespread media attention, not just in the UK (see for instance London council rejects new Chinese embassy amid residents’ safety fears (Guardian, 2 December 2022) and David Chipperfield’s Chinese embassy complex rejected by London council (Architects Journal, 2 December 2022)) but across the world. 

What is going to happen next? The People’s Republic of China has owned the site outright since 2018 and they are hardly going to walk away from the project. Michael Gove could conceivably call the application in before the refusal notice is issued, or China could appeal against the refusal and the appeal would presumably be recovered for his determination following recommendations from an inspector who would hold a public inquiry. 

The political sensitivities are surely going to ramp up, no matter what. Perhaps this application should have been called in by the Government at an earlier stage rather than leave committee members with (1) such a difficult decision, balancing local concerns against international diplomatic responsibilities, and (2) such power. But I’m sure the government would have loved to have left this particular hot potato well alone. And they thought that juggling an appearance of dealing with the housing crisis with an appearance of leaving communities in control of local housing numbers was difficult….

Simon Ricketts, 3 December 2022

Personal views, et cetera

Photo courtesy of Rachael Gorjestani on Unsplash

Nutrient Neutrality: Possibly Good News & Possibly Bad News

The Government appears to be in negotiation with Tory MPs (46 of them at least) who may be prepared to wreck the Levelling-up and Regeneration Bill unless it includes a provision abolishing housebuilding targets for local authorities and abolishing the policy in the NPPF as to the maintenance of a five years’ supply of housing land. No doubt this will end up with some fudged solution adding further (1) uncertainty, (2) complexity and (3) hurdles in the way of housing provision. 

But in another part of the forest, assuming they will overcome that local difficulty (aka huge chasm), the Government has brought forward a further set of amendments to the Bill to seek to address the nutrient neutrality problem which has amounted to a de facto veto on housebuilding in many areas of the country (see eg my 23 July 2022 blog post Neutrality: Government Clambers Off The Fence).

This is what I am categorising as the possible good news. See DLUHC’s 25 November  2022 press statement Government sets out plan to reduce water pollution.

Government plans announced today will see:

  • A new legal duty on water companies in England to upgrade wastewater treatment works by 2030 in ‘nutrient neutrality’ areas to the highest achievable technological levels.
  • A new Nutrient Mitigation Scheme established by Natural England, helping wildlife and boosting access to nature by investing in projects like new and expanded wetlands and woodlands. This will allow local planning authorities to grant planning permission for new developments in areas with nutrient pollution issues, providing for the development of sustainable new homes and ensuring building can go ahead. Defra and DLUHC will provide funding to pump prime the scheme.”

The new legal duty on water and sewerage companies in England to upgrade certain wastewater plants will be introduced via a Government amendment to the Levelling Up and Regeneration Bill. We want these improvements to be factored in for the purposes of a Habitats Regulation Assessment.

The nutrient mitigation scheme “will be open to all developers, with priority given to smaller builders who are most affected. Developers can also continue to put their own mitigation schemes in place should they choose. Natural England will work with, not crowd out, new and existing private providers and markets for nutrient offsets wherever they exist.

The scheme is due to open in the Autumn. All affected areas can continue to access practical support from the government and Natural England in meeting nutrient neutrality requirements. Natural England will deliver the scheme by establishing an ‘Accelerator Unit’, with the support of Defra, DLUHC, the Environment Agency and Homes England.

This announcement will support the delivery of the tens of thousands of homes currently in the planning system, by significantly reducing the cost of mitigation requirements. The mitigation scheme will make delivering those requirements much easier for developers.”

The possible bad news? Not so much bad news but an inspector’s appeal decision letter which confirms that the Habitats Regulations’ assessment requirements do not just apply when an application for planning permission is determined but, if an assessment was not carried out at that stage, at reserved matters/ conditions discharge stage. This is of course one of the huge current frustrations. 

The decision letter, dated 24 November 2022, is here and is summarised by Landmark Chambers here.  

Charlie Banner KC was for the appellant and his submissions were in line with an opinion previously provided for the HBF and widely circulated. The issues are not straight-forward and we wait to see whether the  question will now come before the courts. 

Short blog post this week – too busy, and to0 much football to watch. 

Simon Ricketts, 26 November 2022

Personal views, et cetera

Pic courtesy Four Four Two

All Systems Gove

Commentary about the Government’s adjusted direction for planning reform has been running on mist and speculation since Michael Gove’s return as Levelling Up Secretary of State on 25 October 2022, pending the Chancellor’s Autumn Statement on 17 November 2022.

But now it’s all systems go. As well as the Autumn Statement we now have:

The Secretary of State is due to appear before the LUHC Select Committee on 21 November and the Bill will have its report and third reading stages on 23 and 28 November before heading to the Lords. 

The Autumn Statement itself contained little in relation to planning reform, other than to “refocus” investment zones:

3.16 The government will seek to accelerate delivery of projects across its infrastructure portfolio, rather than focus on the list of projects that were flagged for acceleration in the Growth Plan. The government will continue to ensure that all infrastructure is delivered quickly through reforms to the planning system, including through updating National Policy Statements for transport, energy and water resources during 2023, and through sector-specific interventions.”

3.25 The government will refocus the Investment Zones programme. The government will use this programme to catalyse a limited number of the highest potential knowledge-intensive growth clusters, including through leveraging local research strengths. The Department for Levelling Up, Housing and Communities will work closely with mayors, devolved administrations, local authorities, businesses and other local partners to consider how best to identify and support these clusters, driving growth while maintaining high environmental standards, with the first clusters to be announced in the coming months. The existing expressions of interest will therefore not be taken forward. The government is grateful to local authorities for their work to develop proposals.”

I recommend two good commentaries on the Autumn Statement:

The amendments tabled to the Levelling-up and Regeneration Bill are potentially significant. To quote from the 18 November 2022 press statement:

Amendments being tabled will:

  • Tackle slow build out by developers to make sure much needed new homes are delivered. Developers will have to report annually to councils on their progress and councils will have new powers to block planning proposals from builders who have failed to deliver on the same land.
  • Improve our environment and enshrine in law an obligation on water companies to clean up our rivers by upgrading wastewater treatment works. Considering all catchments covered by the amendment, our initial estimates indicate that there will be around a 75% reduction in phosphorus loads and around a 55% reduction in nitrogen loads in total from wastewater treatment works, although this will vary between individual catchments. These upgrades will enable housebuilding to be unlocked by reducing the amount of mitigation developers must provide to offset nutrient pollution. This will be accompanied by a Nutrient Mitigation Scheme that will make it easier for developers to discharge their mitigation obligations.
  • Give residents a new tool to propose additional development on their street, like extensions to existing homes, through ‘street votes’. Planning permission will only be granted when an independent examiner is satisfied that certain requirements, such as on design, have been met and the proposal is endorsed at a referendum by the immediate community. Pilot Community Land Auctions – testing a new way of capturing value from land when it is allocated for development in the local plan to provide vital infrastructure, including schools, roads, GP surgeries, and the affordable housing that communities need.
  • Enhancing powers for mayors to support them to managing their key route networks and increase transport connectivity across their area.
  • Help Nationally Significant Infrastructure Projects such as wind farms and new major transport links be delivered more quickly, by enabling a small number of public bodies to charge for their statutory services to help them provide a better, reliable, quality of advice to developers and support faster planning decisions.”

There are some potentially controversial proposals here, for instance local planning authorities would be able to decline to determine an application for planning permission of any prescribed description if the application has been made by someone who “has a connection with” earlier development which “has begun but has not been substantially completed” and where the “local planning authority is of the opinion that the carrying out of the earlier development has been unreasonably slow”. 

Begun but not substantially completed, unreasonably slow – sounds to me like the Government’s performance in relation to planning reform….

The press statement doesn’t mention an additional tabled amendment, which would empower the Secretary of State to make such amendments and modifications to existing planning, development and compulsory purchase legislation as in the Secretary of State’s opinion facilitate or are otherwise desirable in connection with their consolidation. That’s one hell of a Henry VIII clause!  A Town Legal colleague commented to me that the Delegated Powers and Regulatory Reform Committee will certainly be interested in this one if it reaches the Lords.

More from me on a number of the proposals in due course.  In particular, I had really hoped I would never have to tackle community land auctions (again) or street votes.

We still await any announcements about planning policy reform, including as to changes to the NPPF and the future of the standard method for calculating local housing needs. We were left to read between the lines of what was said by Levelling Up Under Secretary of State Dehenna Davison in a Westminster Hall 30 minute debate earlier in the week on housing targets (15 November 2022):

I know I am preaching to the converted when it comes to the need to modernise our planning system, and I think all MPs understand and get that we need a planning regime that is fit for 2022. […] I also understand that Members are frustrated—they are right to be frustrated—that this has been under discussion not just for months, but for years. We need more houses, and that obviously brings with it an obligation on us in Government to be frank and straight with people that building more houses has implications, both positive and sometimes negative. In some places, it will cause tension, and in some places, it will be a source of relief, but it is our job to be willing to have that dialogue, regardless of how difficult it may be. I am not sure that Governments of all colours have always approached these kinds of conversations in the most productive way. The inconvenient truth is that, for the best part of two decades, demand has outstripped the supply of homes.

…If we can get our planning regime right, we can unlock a huge amount of economic growth locally. We want to help local authorities to adopt and implement the best planning approaches for their areas. To achieve that, local authorities will need to be able to better attract and retain planners […] and we want to work further with the sector on that. He was right to highlight that as one of the major challenges facing authorities at the moment.

To incentivise plan production and to ensure that newly produced plans are not undermined, the Government intend to make it clear that authorities do not have to maintain a five-year supply of land for housing where they have an up-to-date plan. As Members would expect, we plan to consult on that. The new measures should have a minimal impact on housing supply, given that newly produced plans will contain up-to-date allocations of land for development, but that will also send a signal that the Government are backing a plan-led approach, provided that those plans are up to date.

There is no getting around the fact that we are in a difficult economic time. We face headwinds from all angles—energy, inflation and interest rate rises—and those have knock-on implications for everything that the Government do, but to my mind, they only serve to underline the need to build more homes and to give generation rent the chance to become generation buy. That is why we have to stand by our commitment to dramatically ramp up housing supply and our manifesto pledge to build a million new homes within the first term of this Parliament

For additional political colour (blue) see also Michael Gove’s keynote speech at the Centre for Policy Studies’ Margaret Thatcher Conference on growth  (16 November 2022)

Simon Ricketts, 19 November 2022

Personal views, et cetera

Heritage Harm Case; Asylum Seekers In Hotels Case

Two interesting judgments by Holgate J already this month:

Newcastle Upon Tyne City Council v Secretary of State (Holgate J, 1 November 2022)

In this case Holgate J found that the inspector in granting planning permission had taken into account a legally irrelevant consideration in assessing the level of harm caused to the neighbouring Grade I listed St Ann’s Church (paras 60-79). The inspector’s decision had accounted for the fact that the level of harm to the Church could not be further minimised by a different design. The court held however that even if the level of harm was “minimised” by the current design, this said nothing about what that “minimised” level of harm amounts to – harm to a heritage asset might be “minimised” by the design proposed but nevertheless still be “substantial”.  Another reminder of the care that needs to be taken by decision makers in relation to the NPPF heritage test heffalump traps (see also for instance my 12 December 2020 blog post, Where’s The Harm In That? Misreporting Heritage Effects).

The Judge dismissed two further grounds of challenge, including a challenge that the inspector had wrongly considered the likely deliverability of the scheme. Holgate J held that there was no reason why deliverability could not be a material consideration in the determination of a planning application/appeal if relevant to the merits of the proposal – in this case, the site was owned by Homes England and this was relevant to the likelihood of delivery given its statutory function to promote regeneration.

(Thanks to my colleague Emma McDonald for her initial summary of the case for our Town Library Planning Court Weekly Updates (subscribe for free here).

Ipswich Borough Council v Fairview Hotels (Ipswich) Limited, East Riding of Yorkshire Council v LGH Hotels Management Limited (Holgate J, 11 November 2022)

No original work from me at all this week because I’m now going to reproduce Landmark Chambers’ summary of the ruling on this important and recurring issue – I had started to draft my own but it was less concise – for any more than this do read the judgment itself):

“In a judgment handed down at 5.30pm this evening, Mr Justice Holgate has dismissed applications by two local planning authorities to continue injunctions previously granted without notice, which had the effect of preventing the use of hotels in the two authorities’ areas to accommodate asylum seekers (including those being relocated from the overcrowded facility at Manston).

The claims were brought by the two councils under s. 187B Town and Country Planning Act on the basis that using the hotels to accommodate asylum seekers would amount to a material change of use, from use as a hotel to use as a hostel.  Noting that the mere fact that a hostel was not in the same use class as a hotel did not of itself establish that the change was “material”, and that the distinction between a hotel and a hostel was “fine”, Holgate J nevertheless accepted that there was a serious issue to be tried. However, applying the American Cyanamid balance of convenience, he concluded that the factors in favour of discharging the injunction clearly outweigh those in favour of continuing it.  In particular:

1.            The distinction between use as a hostel and use as a hotel was fine. Whether there was a material difference depended upon the planning harm identified by the claimants.

2.            There would not be any irreparable damage or harm. The use would not cause any environmental damage or any harm to the amenity of neighbouring uses.  The buildings would not be altered and there would be no issues relating to traffic generation.

3.            Although there is a public interest in enforcement action being taken against breaches of planning control, the integrity of the planning system is not undermined by the normal enforcement regime, which allows alleged breaches to continue while the merits of an appeal are under consideration.

4.            The defendant’s conduct was not a flagrant breach of planning control. There were respectable arguments that planning permission was not needed.

5.            The Home office was facing an unprecedented increase in the number of asylum seekers, the vast majority of who it was under a duty to accommodate. Without the ability to contract for the use of hotels there was a real risk of some asylum seekers becoming homeless.

6.            In the claim brought by Ipswich, the Council’s concerns about the potential impact on tourism were “tepid”.

7.            The proposed use would be temporary in nature. If that turned out not to be the case there were “plenty of other weapons in the LPA’s enforcement armoury to tackle the issue”.”

Hear, hear.

Simon Ricketts, 12 November 2022

Personal views, et cetera

Running Down That Hillside

We now have the judgment of the Supreme Court in Hillside Parks Limited v Snowdonia National Park Authority (2 November 2022).

The case concerns the relationship between successive grants of planning permission for development on the same land and, in particular, about the effect of implementing one planning permission on another planning permission relating to the same site.

The facts concerned, in basic summary, a full planning permission for the development of 401 dwellings at Balkan Hill, near Aberdyfi in the Snowdonia National Park, granted in 1967. Development was to be in accordance with a detailed “master plan” showing the proposed location of each house and the layout of a road system for the estate.

Only 41 of the dwellings have been built to date, none in accordance with the masterplan. The developer, Hillside Parks Limited, has applied for and been granted a series of additional planning permissions permitting development which has taken place on parts of the site.

The Supreme Court has followed the Court of Appeal and High Court in concluding that development pursuant to the 1967 planning permission cannotlawfully be continued:

The courts below were right to hold that the 1967 permission was a permission to carry out a single scheme of development on the Balkan Hill site and cannot be construed as separately permitting particular parts of the scheme to be built alongside development on the site authorised by independent permissions. It is possible in principle for a local planning authority to grant a planning permission which approves a modification of such an entire scheme rather than constituting a separate permission referable just to part of the scheme. The Developer has failed to show, however, that the additional planning permissions under which development has been carried out on the Balkan Hill site since 1987 should be construed in this way. Therefore, that development is inconsistent with the 1967 permission and has had the effect that it is physically impossible to develop the Balkan Hill site in accordance with the Master Plan approved by the 1967 permission (as subsequently modified down to 1987). Furthermore, other development has been carried out for which the Developer has failed to show that any planning permission was obtained. This development also makes it physically impossible to develop the site in accordance with the Master Plan approved by the 1967 permission (as subsequently modified).” (paragraph 100).

Whilst the specific facts of the case are unusual (including a degree of uncertainty as to the intended procedural status and effect of the subsequent planning permissions, several of which on their face are described as “variations” of the 1967 planning permission) the Supreme Court sets down some general principles to be applied to situations concerning overlapping permissions. The judgment clarifies some ambiguities arising from the earlier Court of Appeal judgment, although ambiguities remain.

One ambiguity indeed is as to the extent to which the principles set out apply to outline planning permissions, given passages such as paragraph 20:

In this case, we are concerned with grants of full planning permission, in relation to which it is to be expected that a reasonable reader would understand that the detailed plans submitted with the application have particular significance.”

On first reading, I draw the following principles from the judgment:

  1. Approval of the Pilkington principle

In essence, the principle illustrated by the Pilkington case [[1973] 1 WLR 1527, Divisional Court] is that a planning permission does not authorise development if and when, as a result of physical alteration of the land to which the permission relates, it becomes physically impossible to carry out the development for which the permission was granted (without a further grant of planning permission) … Where the test of physical impossibility is met, the reason why further development carried out in reliance on the permission is unlawful is simply that the development is not authorised by the terms of the permission, with the result that it does not comply with section 57(1).” (paragraph 45)

“…([I]n the absence of clear express provision making it severable) a planning permission is not to be construed as authorising further development if at any stage compliance with the permission becomes physically impossible.” (see paragraph 68)

(my emboldening).

  1. Interpretation of planning permissions for multi-unit developments

A planning permission for a multi-unit development is unlikely properly to be interpreted as severable into a set of discrete permissions to construct each individual element of the scheme.

However, see the reference above to the possibility of “clear express provision making it severable”.  An early thought in reaction to the judgment is that in relation to large multi-phased planning permissions this may already be the case. Where it is not, it may often be useful in the future for it to be introduced.

  1. The whole development is not unlawful if a proposed development cannot be completed fully in accordance with the planning permission

The Supreme Court doubted that it was correct that “in carrying out a building operation, any deviation from the planning permission automatically renders everything built unlawful, even in relation to a single building” and considered that it was certainly not the case that failure to complete a building operation for which planning permission has been granted renders the whole operation including any development carried out unlawful (To that extent the Supreme Court disagreed with remarks of Lord Hobhouse in Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22).

  1. Under the Pilkington principle, departures must be material

The Pilkington principle should not be pressed too far. Rightly in our view, the Authority has not argued on this appeal that the continuing authority of a planning permission is dependent on exact compliance with the permission such that any departure from the permitted scheme, however minor, has the result that no further development is authorised unless and until exact compliance is achieved or the permission is varied. That would be an unduly rigid and unrealistic approach to adopt and, for that reason, would generally be an unreasonable construction to put on the document recording the grant of planning permission – all the more so where the permission is for a large multi-unit development. The ordinary presumption must be that a departure will have this effect only if it is material in the context of the scheme as a whole: see Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222, 230. What is or is not material is plainly a matter of fact and degree” (paragraph 69)

  1. How to vary a planning permission

Aside from the specific statutory procedures (section 73 and section 96A – and potentially in due course the additional procedure proposed in the Levelling-up and Regeneration Bill), what else can a developer do where it wishes to depart from the planning permission it has been granted?

“73 … [Counsel for Hillside] also submitted that it would cause serious practical inconvenience if a developer who, when carrying out a large development, encounters a local difficulty or wishes for other reasons to depart from the approved scheme in one particular area of the site cannot obtain permission to do so without losing the benefit of the original permission and having to apply for a fresh planning permission for the remaining development on other parts of the site.

74.          In our view, that is indeed the legal position where, as here, a developer has been granted a full planning permission for one entire scheme and wishes to depart from it in a material way. It is a consequence of the very limited powers that a local planning authority currently has to make changes to an existing planning permission. But although this feature of the planning legislation means that developers may face practical hurdles, the problems should not be exaggerated. Despite the limited power to amend an existing planning permission, there is no reason why an approved development scheme cannot be modified by an appropriately framed additional planning permission which covers the whole site and includes the necessary modifications. The position then would be that the developer has two permissions in relation to the whole site, with different terms, and is entitled to proceed under the second.

75.          The Authority has argued that, because the planning legislation does not confer any power on a local planning authority to make a material change to an existing planning permission, a later planning permission cannot have the effect of modifying in any material way the development scheme authorised by an earlier permission.

76.          The trial judge, HHJ Keyser QC, did not find this argument persuasive and nor do we…”

(my emboldening).

If I have this right, this would be a procedure to fall back on in a situation where the Pilkington principle would otherwise bite i.e. where, even though development will be unchanged pursuant to part of the planning permission (1) that part can’t be shown to be clearly severable from the remainder (or presumably amended via section 96A or section 73 so as to be clearly severable) and (2) it would now be physically impossible to complete the planning permission in accordance with its terms (its original terms or presumably as amended via section 96A or section 73) if a separate permission were to be granted in relation to part of the development area covered by the permission.

  1. No principle of abandonment of planning permissions

The developer’s argument that Pilkington should be analysed as a case resting on a principle of abandonment was rejected. The Supreme Court does not accept “that there is any principle in planning law whereby a planning permission can be abandoned” (paragraph 35).

I hope this brief initial run down is a helpful introduction to what will in due course be a very familiar text for all of us. More anon I’m sure.

Simon Ricketts, 2 November 2022

Personal views, et cetera

Courtesy Mel Poole on Unsplashed

Clangers: Does An LPA Owe A Duty Of Care To An Applicant For Planning Permission?

Many a frustrated participant in the planning system has asked from time to time: is there any financial redress for mistreatment allegedly received at the hands of a local planning authority? (To be fair, sometimes a frustrated local planning authority may indeed also wonder what redress it has against mistreatment received at the hands of applicants or objectors).

Beyond the possibility of an award of costs on appeal (inadequate in that it will only cover professional costs in relation to the appeal stage rather than application stage, although still sometimes high, viz the figure of £2.1m reportedly agreed this week by Uttlesford District Council to be payable to Stansted Airport) or the possibility of obtaining a voluntary payment of compensation by way of a ruling by the Local Government Ombudsman, in what circumstances might the authority be sued in negligence?

The negligence route has now, expensively, been tested in Primavera Associates Limited v Hertsmere Borough Council (Leech J, 25 October 2022). Four days in what used to be known as the Chancery Division of the High Court, with various expert witnesses on both sides. It’s a horror story of a situation – what should have been a small and straightforward development project in Radlett, Hertfordshire promoted by Shandler Homes on behalf of Primavera Associates Limited. As is often the case in these situations, in the cold light of day neither party, neither applicant not local planning authority, could be said to have been entirely blameless.

As described from paragraph 36 onwards of the judgment, planning permission was granted on 3 September 2012 for the demolition of a house and the erection of seven self-contained apartments, following an application submitted on 13 January 2012. The planning permission was then challenged by the owner of the neighbouring property who had previously sought to redevelop it together with the Shandler Homes property and the council consented to judgment on the basis that a planning condition referred to a plan showing an incorrectly drawn visibility splay.

The application was then redetermined, with the council resisting submissions from the objector’s solicitors (supported by an opinion by Rupert Warren KC) that the application should now be assessed against the current development plan. Oh dear, another judicial review ensued and again the council consented to judgment.

A fresh application for permission was then submitted on 2 April 2014, for a very similar scheme. Delays ensued whilst financial viability appraisal work was undertaken to check whether the applicant’s proposed commuted sum towards affordable housing was sufficient.

By 14 November 2014 Shandler Homes and Primavera were threatening to bring proceedings in negligence against the council. Delays continued (I’m at paragraph 85 now – it really is a sorry tale) and by 14 October 2015 another letter was sent threatening proceedings in negligence. During this period CIL liability increased and then the council started to insist upon a clawback mechanism to secure 60% of any surplus that arose on a subsequent viability review to be carried out.

The application was resolved to be approved on 21 April 2016 and following fractious negotiations over the section 106 agreement, planning permission was issued on 28 September 2016.

A third application for planning permission was submitted on 30 September 2016, increasing the number of flats proposed from seven to ten, which was approved on 15 March 2017.

Primera sued Hertsmere Council for around £1.7m, which it claimed to be the losses suffered due to what it considered to be negligent conduct on the part of the council.

To turn briefly to the law. As I’m sure you know, in order to succeed in a claim in negligence it is necessary for the following factors to have been established:

  • The defendant owed a duty to the claimant

  • The defendant breached the duty owed to the claimant

  • The defendant’s breach of duty caused the claimant to suffer loss
  • The loss caused by the defendant’s breach of duty is recoverable

Duty of care

From paragraph 179 Leech J sets out the case law in detail as to when a duty of care arises, and does not arise. This includes, at paragraphs 203 to 215, the case law in relation to planning matters.

His findings start at paragraph 221. First of all no duty of care arose as a result of the statutory nature of the functions being undertaken by the council. The council did not give “any assurance to Shandler Homes that it would decide either application in a particular way or within a particular time. In either case, the remedy was to appeal.” The fact that an application fee was paid did not change the analysis, or indeed lead to a contractual relationship between the parties. In any event, any duty of care would not have stretched beyond Shandler Homes to Primavera and other entities related to the promotion of the development. No could any assumption of liability be inferred from the manner in which the council had behaved towards Primavera:

(1) I have found that the Council’s officers and the Committee’s members did not give any commercial or legal advice to Primavera or to Fusion (on its behalf) upon which Primavera (or Fusion) relied in relation to the First Application either when it was originally submitted or when it was submitted in a revised form.

(2) I have also found that Mr Down took a calculated decision not to appeal against the non-determination of the Second Application in the knowledge that the position was uncertain and changing. I am satisfied that Primavera chose to take the risk of any delay or flaw in the statutory process rather than to appeal.

(3) But even if (contrary to my finding of fact) Mr Down did not consider an appeal to be a realistic option because Mr Taylor and he did not know what they would have been appealing against, I have also held this belief was an unreasonable one and not induced by any representation or assurance made by the Council.

(4) I have found that in the period between 13 April 2013 and 27 September 2016 the Council did not assume responsibility for the progress and determination of the Second Application within a specific time frame or within a time which Mr Taylor or Mr Down considered reasonable. I have also found that Fusion and Primavera adopted a confrontational and heavy-handed approach. In my judgment, Mr Taylor’s complaints and the Letters of Claim which Lawrence Stephens sent to the Council negated any reliance by Primavera upon the competence or efficiency of the Council.”

He concludes that the claim fails because the council did not owe any duty of care to Primavera to exercise reasonable care in processing and determining the applications.

However, he goes on in any event to consider the further issues: breach of duty, causation and assessment of damages (if his finding on duty of care were to be overturned on appeal).

Breach of duty:

If the Council owed a duty of care (contrary to my finding above), then I find that it committed a breach of that duty and failed to exercise reasonable skill and care by determining the revised First Application by reference to the planning policy at the date on which the First Application was submitted and not by reference to the emerging planning policy at the date of the Second Decision. For the avoidance of any doubt, I add that I do not find that the Council failed to exercise reasonable care in relation to any other aspect of the First Application or the First and Second Decisions.”

If the Council owed a duty of care (contrary to my finding above), then … I also find that the Council was negligent and responsible for a six-month delay in the progress of the Second Application between January and July 2015. I dismiss all of the other allegations of negligence and lack of reasonable care against the Council.

Causation:

I also find on a balance of probabilities that if the Council had acted with reasonable care throughout the period between the submission of the Second Application on 2 April 2014 and 27 September 2016 when the Second S106 Agreement took effect, it would have taken six months less to progress and determine the Second Application and the Council would have issued the Third Decision by 21 October 2015. However, I would also have found that the conduct of Shandler Homes broke the chain of causation because (as I have found) Mr Down took a calculated decision not to appeal against the non-determination of the Second Application at any time between 3 June 2014 and 3 December 2014 (or to negotiate an extension of time for an appeal).”

Assessment of damages:

If I had found that the Council owed such a duty of care, I would also have found that the Council had committed two breaches of duty and that if it had not committed the first of those breaches of duty, it would have granted planning permission for the Second Application on 28 January 2014. I would, however, have dismissed all of the heads of loss claimed by Primavera apart from the claim relating to the Affordable Housing Contribution and the Additional Housing Contribution. Primavera adduced no evidence to prove these losses at trial and even this is wrong I would not have awarded any more than £134,724.80 in damages.

Concluding thoughts

The case certainly brings with it some salutary lessons – about trying to avoid the sort of breakdown of trust between the parties which led to so many flashpoints and mistakes on both sides. The applicant’s team, seeing life from its perspective, increasingly concerned about the cost, expense and uncertainties arising from what should have been a straightforward planning application process, was no doubt furious at the clangers on the part of the council’s officers and the timescales to which they were working. It’s easy to say perhaps from a distance, but a more consensual approach, providing good objective advice for the benefit of all parties where necessary, might have been more fruitful for the applicant than resorting to what the judge described as a “confrontational and heavy-handed approach”. And litigation, ultimately, was not the answer.

In other news, has Elon Musk found any Clangers on Mars yet? Plenty of surprises left for the rest of 2022 I’m sure.

Simon Ricketts, 29 October 2022

Personal views, et cetera

LURB/Forever Changes

May you live in interesting times.

Resignation of Rishi Sunak as chancellor – 5 July 2022

Resignation of Boris Johnson as prime minister – 7 July 2022

Replacement of Boris Johnson by Liz Truss as prime minister – 6 September 2022

Death of Her Majesty – 8 September 2022

Mini-budget and publication of growth plan – 23 September 2022 

Resignation of Liz Truss as prime minister – 20 October 2022

Replacement of Liz Truss by Rishi Sunak, Boris Johnson or AN Other as prime minister – October 2022

A lot has happened. Or perhaps, in our planning world, nothing has happened. 

We briefly had a prime minister who talked of abolishing “top-down, Whitehall-inspired Stalinist housing targets” and indeed the Levelling Up Secretary of State Simon Clarke (who incidentally came out publicly today as a backer of Boris Johnson) spoke about those targets as if they had already been abolished. But of course, as we wait for the mythical NPPF changes prospectus (delayed to November even before the Truss resignation which could lead to further delay), formal policy remains as is. The only effect of the loose talk was to give cover to local authorities anxious for an excuse to pause their local plan making. Thanks Liz – it wasn’t just the markets that you spooked. 

No doubt the change is on its way regardless but, honestly, how idiotic it would be to give up on having a methodology that identifies each local planning authority’s local housing needs, for which they should usually plan. The likely consequences of removing the targets are clear:

  • longer plan-making processes, particularly the examination stage
  • fewer homes delivered
  • more planning by appeal
  • plan-making increasingly largely driven by promises of funding to be provided and threats of funding to be removed. We can try to forget about that “pork markets” Truss quote but I suggest you retain at hand a much older phrase: “pork barrel politics”.

Zack Simons of course hit the mark in his 11 August 2022 blog post Notes from the hustings: the end of “Stalinist housing targets”? as did Lichfields’ Matthew Spry in his 12 October 2022 magnum opus Standard Method Mortuus Est). 

And what is wrong with top down targets anyway? Our health and education systems for instance are full of the things. 

Away from housing, the announcements in the growth plan in relation to, for instance, fracking (pro – despite the planning minister Lee Rowley being strongly against) and solar energy (anti) have not get found their way into any formal policy changes. 

There was the reference to a proposed Planning and Infrastructure Bill in the growth plan but no skin on the bones of that and no indication either of its relationship to the Levelling-up and Regeneration Bill, which on 20 October 2022 finally completed its Public Bill Stage with publication of a new version of the Bill as amended in Public Bill Committee. A 134 page list of committee stage decisions on proposed amendments was published on the same day. 

Now Nicola Gooch definitely deserves some sort of award (a Damehood in one of those resignation honours lists perhaps) for delving into the amended Bill in her 21 October 2022 blog post All that’s left is LURB…. The Levelling Up & Regeneration Bill comes out of Committee  and above all for this comparison version showing the changes made. 

I have scrolled through the amended Bill and aside from the detailed changes to schedule 11 (which relates to the infrastructure levy) mentioned by Nicola, and other minor tweaks, I would only draw attention to the following new provisions:

  • clause 111 – power to shorten the deadline for examination of DCO applications
  • clause 112 – additional powers in relation to non-material changes to DCOs
  • clause 152 – prospects of planning permission for alternative development [in the context of CPO compensation]

Next up will be Report stage and a debate on the Third Reading of the Bill and we shall see if any further amendments are tabled by the Secretary of State, whoever he or she may be at that stage. 

Simon Ricketts, 22 October 2022

Personal views, et cetera

Courtesy Best Classic Bands

CPO No

The political soap opera this weekend, plus another fabulous sunny Autumn morning – versus writing a blog post about compulsory purchase? Time to use that thinking face emoji.

The inspector’s decision dated 4 October 2022 to decline to confirm the London Borough of Barking and Dagenham Council (Vicarage Field and surrounding land) Compulsory Purchase Order 2021 certainly brings with it some lessons, or at least reminders, for those promoting compulsory purchase orders in association with public/private sector regeneration projects.

Here are the inspector’s conclusions in full:

368. The scheme underpinning the CPO is wholly in accordance with the development plan and has the benefit of outline planning permission. There is an extremely compelling case in the public interest for the development, in meeting economic, environmental and social needs. This would considerably outweigh the heritage harm and loss of existing jobs.

369. The shopping centre and town centre overall needs redevelopment, it is the lowest ranking Borough in London for poverty, and this scheme is the catalyst that would spark further regeneration. There are also no realistic alternative proposals that would achieve the purpose for which the AA is proposing to acquire the land.

370. I am completely aware that failure to confirm the CPO would have an adverse consequence of losing the opportunity to comprehensively redevelop the site at this time. The Council has staked its reputation on the delivery of the scheme and its delivery is critical to achieve its ambitions.

371. I fully recognise much of the potential financial viability of the scheme is reliant upon the scheme itself and it is a complete ‘catch 22’ situation. The developer is confident the Scheme will be delivered. The funding intentions are clear, and I have no doubt that the developer has access to funds.

372. Nevertheless, there is fundamental lack of tangible and substantive evidence on viability. Given the gravity of the 2016 appraisal, and the lack of an updated appraisal, I cannot be certain that the scheme is financially viable despite all assurances from the AA. Other methods to present the evidence confidentially could have been explored and, if the scheme was viable, I do not understand why this evidence was not presented. Whilst the AA claims viability evidence from objectors has not been presented, it is for the AA to demonstrate substantive information as to the financially viability of the scheme. It has not done so in a way that convinces me.

373. Consequently, because I cannot conclude that the scheme is financially viable, I cannot be confident that there is a reasonable prospect that the scheme will proceed at this time, or that the necessary resources are likely to be made available within a reasonable time scale. This is because there is an expectation of return, and no developer or investor would pursue a scheme that is not economically viable or feasible. This is even if it has access to funds, sees a long term vision, or pools funds so that one scheme may perform better than another. The legal agreements also provide me with little comfort of delivery, despite the depreciating value of the lease.

374. This makes it difficult to show conclusively that the compulsory acquisition of the land included in the order is justified in the public interest at this time, as detailed by CPO Guidance.

375. Added to this are my concerns that inadequate negotiations have taken place, when considering the CPO Guidance. It could not be said that delays have been keep to a minimum. The lag from Cabinet approving the making of the CPO to making the CPO was 3 years. There has been a significant delay in the submission of reserved matters applications, and the outline permission expires in April 2023.

376. The efforts to acquire the CPO lands by private treaty have also been largely ineffective. Claims are made by objectors that the financial offers have not been market value, and it is the shopping centre that has failed, not the surrounding businesses on Ripple Road and Station Parade. There have also been limited efforts to relocate those affected by the CPO to date. A ‘not before’ date has been absent and this has resulted in those subjected to the CPO unable to fulfil business plans, living in limbo for a long period of time. Full information was also not provided at the outset and there was no clearly specified case manager.

377. Consequently, whilst I acknowledge the pressing need for redevelopment and the extremely compelling case for the CPO, for the above reasons, I cannot confirm that the compulsory acquisition of the land included in this Order is proportionate or justified in the public interest.

378. Thus, the London Borough of Barking and Dagenham Council (Vicarage Field and surrounding land Compulsory Purchase Order) 2021 is not confirmed.”

I recommend that you read my partner Raj Gupta’s 10 October 2022 blog post The Vicarage Field CPO and viability and that you subscribe to his forthcoming posts which will cover:

  • the Inspector’s criticisms of the promoter’s engagement with occupiers and the deficiencies of its relocation strategy.
  • other points made by the Inspector including in relation to planning, publicity and timing matters with some bonus musings on whether the CPO reforms proposed by LURB (e.g. conditional confirmation) would have made any difference to the outcome.

The decision is no doubt frustrating to all those who worked so hard, with the best of objectives – whilst no doubt equivalently a huge relief for those organisations, businesses and individuals whose land interests, activities and livelihoods were at stake.

 Michael Walton posted these words on LinkedIn:

The proposed regeneration of Vicarage Field shopping centre in Barking adds enormous value to the transformative vision for the borough.

As Head of Regeneration Strategy at Be First I advised on initiatives which helped accelerate growth in Barking & Dagenham. Oversight of Vicarage Field was led by another division, and I moved on from Be First prior to the public inquiry into the CPO being held this year.

The decision made recently by the Inspector to not confirm the CPO is disappointing. Prior to it being made, I highlighted similar issues around deliverability. However, the Inspector also placed a high bar on negotiations with affected parties when reaching her decision.

Nonetheless, this should not deter local authorities from seeking CPO powers as part of their regeneration plans – it merely reinforces the need to de-risk projects and put forward a compelling case.”

Agreed. In fact, I suspect that the decision will prove helpful to promoters of future CPOs, in underlining for them what has to be in place, however difficult it may be in current uncertain circumstances, in order for a CPO to be confirmed.

Now to check whether the sun is still shining – and whether we still have a Prime Minister.

Simon Ricketts, 15 October 2022

Personal views , et cetera

IZs: Some Handy Existing Legislation?

I know we all lose bits of legislation down the sofa. 

The Government’s 24 September 2022 guidance on investment zones in England said this:

The government will look to introduce primary legislation in order to enable the offer on tax and simplified regulations. The final offer will be subject to the passage of that legislation through parliament.”

There really isn’t much clarity as to the nature and extent of any primary legislation that will in fact be required to deliver the regimes envisaged for each investment zone (potentially bespoke for that investment zone). When you add this to the wider confusion as to the relationship of the proposed Planning and Infrastructure Bill with the current Levelling-up and Regeneration Bill (with much of what was trailed for the former either already within the latter – eg environmental law reform – or shortly to be added by way of amendments.- eg amendments to NSIP processes – or able to be secured by way of secondary legislation), some clarity from Government is urgently needed. 

Turning to the question of what amended planning regimes may be appropriate for some investment zones, people have rightly pointed to the potential use of local development orders, which for example the Government has previously encouraged in relation to enterprise zones and freeports. 

However I’m wondering whether, instead of further primary legislation to set out some unspecified new procedure (which sounds slow and impractical), the Government has considered whether two provisions which are already on the statute book are in fact sufficient: simplified planning zones and planning freedoms schemes. Are ministers even aware of them? I would be interested in people’s experiences with either. 

Simplified Planning Zones were introduced by way of section 82 of the Town and Country Planning Act 1990 which provides as follows:

(1) A simplified planning zone is an area in respect of which a simplified planning zone scheme is in force.

(2) The adoption or approval of a simplified planning zone scheme has effect to grant in relation to the zone, or any part of it specified in the scheme, planning permission—

(a) for development specified in the scheme, or

(b) for development of any class so specified.

(3) Planning permission under a simplified planning zone scheme may be unconditional or subject to such conditions, limitations or exceptions as may be specified in the scheme.

See also the Town and Country Planning (Simplified Planning Zones) Regulations 1992.

This is a good explainer, with examples: How simple are Simplified Planning Zones? (Local Government Lawyer, 4 February 2016) and here is some information about Slough Borough Council’s Slough Trading Estate SPZ.  

Planning freedom schemes were introduced by section 154 of the Housing and Planning Act 2016.

From the explanatory notes to section 154:

Section 154: Planning freedoms: right for local areas to request alterations to planning system

441 This section enables the Secretary of State, by regulations, to make planning freedom schemes in England. Planning freedom schemes may only be made following a request from the local planning authority for the relevant area and only if the Secretary of State considers the scheme will lead to additional homes being built.

442 Before bringing forward proposals for a scheme the local planning authority must consult in their local area.

443 Such schemes will operate for a specified period (although subsection (7) includes the power to bring schemes to an end early, for example, where the local planning authority asks the Secretary of State to do so).

444 Planning freedom schemes will apply in relation to a specified planning area which will be the area of a local planning authority or an area comprising two or more adjoining areas of local planning authorities. The Secretary of State may restrict the number of planning freedom schemes in force at any one time.

Is anyone aware of this, extremely open-ended, power ever having been used? 

Planning legislation is full of these false starts and dead ends. I’m sure there’s plenty more that you can point to. Regardless of any substantive changes, a spring clean of the whole legislative framework is well overdue. Although who knows what we’ll find. 

I hope people enjoyed listening to the clubhouse chat with Hashi Mohamed last week. If you missed it you can listen back here.

Simon Ricketts, 8 October 2022

Personal views, et cetera

Courtesy Kelly Sikkema, Unsplash

Ruler

Or REULRR. Or the Retained EU Law (Revocation and Reform) Bill, introduced into Parliament on 22 September 2022. A Bill which I was only vaguely aware of until Nicola Gooch’s excellent blog post What Truss did on my holidays: It’s much more than ‘just’ the mini budget….  (26 September 2022). 

As Nicola explains:

 “If passed, REULRR will effectively sweep away any and all EU laws that the Government hasn’t actively decided to keep.

It does this by:

  1. Repealing EU derived laws by the end of 2023. The government will be able to extend that deadline to 23 June 2026 (the tenth anniversary of the Brexit referendum) but can’t further extend it.
  2. Repealing the principle of supremacy of EU law by the end of 2023. Currently, any EU decision reached before 1 January 2021 is binding on UK courts unless the government departs from it. However, this bill will subjugate all EU law in favour of UK law by default. 
  3. Repealing directly effective EU law rights and obligations in UK law by the end of 2023; and
  4. Establishing a new priority rule requiring retained direct EU legislation to be interpreted and applied consistently with domestic legislation.

She discussed this further at our clubhouse Planning Law Unplanned session last week on the Growth Plan, which Sam Stafford has now trimmed neatly into a 50 Shades of Planning podcast:

🍎 https://t.co/BaNDFpIlfb

🎧 https://open.spotify.com/episode/0vKryknMBdUBxOdidhTX26

You will remember that the European Union Withdrawal Act 2018 had the effect of retaining, post Brexit, EU-derived domestic legislation such as the regulations in relation to environmental impact assessment, strategic environmental impact and conservation of habitats, leaving it to Parliament in due course to determine the extent to which the legislation should subsequently be repealed or amended. 

As explained in the explanatory notes to the REULRR Bill:

The REUL [retained EU-derived law] framework established by EUWA, however, was not intended to be maintained indefinitely on the UK statute book and now the Government is in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens.”

The Bill now places a firm deadline on that process:

The Retained EU Law (Revocation and Reform) Bill facilitates the amendment, repeal and replacement of REUL by the end of 2023, and assimilates REUL remaining in force after that date by removing the special EU law features attached to it.”

The end of 2023 deadline can only be extended, to 23 June 2026 “should a lack of parliamentary time, or external factors, hinder progress towards reform of retained EU law prior to the 2023 sunset date.

Is this of concern?

In short, yes of course. It may be said that the Government is committed to a principle of non-regression from current environmental standards, but given the current political pinball and the lack of relevant ministers with any real experience of the sheer complexity and nuances of what they are dealing with, frankly anything is possible. Campaign groups are certainly on edge: Brexit freedoms bill’ could abolish all pesticide protections, campaigners say (Guardian, 29 September 2022).

To an extent, at a high level, the principle of non-regression is built into the trade and co-operation agreement between the UK and EU which was signed on 30 December 2020 and came into force on 1 May 2021. The UK gave various, at least theoretically, binding commitments in the agreement as to non-regression from environmental levels of protection, which I describe in my 27 December 2020 blog post Brexit & Planning: An Update.

There are also generalised commitments within the Environment Act 2021 (which of course Parliament is always of course at liberty to amend or repeal as it chooses). The Government consulted in May 2022 in relation to its draft environmental principles statement. The statement has not yet been finalised and there is not yet any duty upon ministers to take it into account in their policy making. This may not be until summer 2023 at the earliest! The Office for Environmental Protection (a body established pursuant to the 2021 Act) has criticised the statement for “a relatively limited degree of ambition”. The OEP has similarly criticised as unambitious the Government’s draft environmental targets, also consulted upon pursuant to the 2021 Act. 

As against these inchoate commitments to environmental standards, what is going to give in the face of a Government which, according to its Growth Plan, will be “disapplying legacy EU red tape where appropriate” in the investment zones it is proposing, and which proposes a Planning and Infrastructure Bill which will be:

  • reducing the burden of environmental assessments
  • reducing bureaucracy in the consultation process
  • reforming habitats and species regulations”?

Genuine improvements to the processes are certainly possible. But do we trust the Government to strike an appropriate balance, hurtling towards a self-imposed December 2023 deadline and (at the latest) 2024 general election? In the coming year, most of our environmental legislation, and planning legislation to the extent that it is intertwined, will need to be reviewed, line by line, and, given that most of it is in the form of secondary legislation (and the sheer lack of time – after all the REULRR Bill covers all EU derived legislation!), there will be relatively limited Parliamentary scrutiny of that process. Even with the best of intentions, how is this timescale even going to be possible if we are to avoid a complete bodge-up? We have been treading (often polluted) water for so long and we still have no sense whatsoever of what the long trumpeted “outcomes focused” approach will look like in practice – eg see my 2 April 2022 blog post Is the Nature Recovery Green Paper The Answer? (& If So What Was The Question?)

On a slightly different, although possibly related, note….

At 6 pm on Wednesday 5 October 2022 we will be having a discussion on Clubhouse with barrister Hashi Mohamed, around the themes of his FT article The housing crisis sits at the centre of Britain’s ills (1 October 2022, behind paywall) and his recent book A home of one’s own, a trenchant and personal look at the politics of planning and housing.

Join via this link. If you use the link to RSVP in advance (you don’t have to) you’ll get a reminder when we start – and we can get a feel for likely numbers. 

What is needed to calm the nerves all round – on planning, on housing, on environmental protection – is detail. When are we going to get it? HM Treasury announced on 26 September 2022:

Cabinet Ministers will announce further supply side growth measures in October and early November, including changes to the planning system, business regulations, childcare, immigration, agricultural productivity, and digital infrastructure.”

Always just another month or so to wait, every time.

Simon Ricketts, 1 October 2022

Personal views, et cetera

Image courtesy of Estay Lim via Unsplash