JR Risk

There was the usual rush of case hand-downs ahead of the end of the court term last week. Some of them caused me to reflect on this thing we talk about with clients all the time: JR risk. Even an unsuccessful judicial review of a planning permission can cause huge delays and problems for the developer (and don’t some objectors, often protected against any significant costs exposure even if they are unsuccessful, know it?) and if one or more of your grounds actually lands in your favour, back the decision goes for re-determination, possibly against a different political or economic background: bonanza…

I was also thinking about the government’s 16 July 2026 consultation paper Judicial Review Reforms Beyond Nationally Significant Infrastructure. Following on from its reforms to the judicial review process in relation to nationally significant infrastructure projects (see my 31 May 2026 blog post Keeping Up: JR Changes, Deadlines, the government is now considering a series of proposals that might be introduced more broadly to developments consented under the Town and Country Planning Act 1990 and Transport and Works Act 1992. These include:

  • removing the paper permission stage and for removing the right of appeal for cases which are deemed totally without merit at the oral permission hearing – whether for all planning cases or just for major infrastructure projects and other strategically important developments;
  • designating all claims relating to ‘major infrastructure projects’ and other ‘strategically important developments’ as “Significant Planning Court Claims” so that target timescales for dealing with the case apply and so as to ensure that each case is reviewed by the Planning Liaison Judge to ensure it is allocated to a judge with an appropriate level of expertise;
  • encouraging the use of case management conferences – whether for all planning cases or just for major infrastructure projects and other strategically important developments;
  • applying more broadly the new target timescales that will apply to nationally significant infrastructure project claims from 1 October 2026, namely: shortened deadlines for the service of the pre-permission documents from seven days to three; target timescale for having the oral permission hearing three weeks from the claimant’s deadline for filing a reply to the acknowledgment of service; shortened deadline for filing and serving the detailed grounds of defence from 35 to 28 days.
  • extending the target timescales for NSIP appeals in the Court of Appeal to ‘major infrastructure projects’ and other ‘strategically important developments’, namely (1) for permission to appeal: determination to be given four weeks from the application for permission to appeal and (2) for the hearing of a substantive appeal: four months from the application for permission to appeal.

Consultation responses are invited by 27 August 2026.

I can see that much of this is sensible tightening of processes and timescales – indeed it is exactly what we need with the actual planning application process but that is another story. Will it serve to dissuade meritless claims or materially reduce “JR risk”? I’m not so sure.

So what can we do, as planning lawyers and planners, to reduce JR risk on any potential project? It is so difficult. The uncomfortable reality is that the system now has almost countless legal trip hazards, given the numerous overlapping legislative regimes at play. Of course we can try to make the planning application “legally bullet-proof”, by way of (now the norm on larger projects) a legal audit of the draft application package; we can seek to make sure that there are no procedural slip-ups on the part of the local planning authority; we can review the planning committee report (even in draft, the High Court has recently confirmed: see my 12 July 2026 blog post Draft Planning Committee Reports: Sharing Is Caring) and seek to rectify before the decision any errors that we see. But there is always the residual risk that something has slipped through, and for sure the claimant will be looking to identify as many grounds as are seen to have any real mileage, because they only need to win on one ground and in litigation (particularly public law litigation) there are very few legal areas of absolute certainty. Some clients may indeed be driven to take out an insurance policy against the financial impacts of a judicial review, which has its place although inevitably expensive and not a panacea.

Without commentary on the specific legal rights and wrongs, these were some of the recent cases that caught my eye:

Guardians of Whitewebbs Park CIC v London Borough of Enfield (Sir Tim Kerr sitting as a judge of the High Court, 27 July 2026)

This was the quashing of planning permission for the proposed redevelopment of a former golf course in the green belt to provide Tottenham Hotspur’s women’s and girls’ football training academy together with associated development. The land is owned by Enfield Council which had entered into an agreement for lease with the council, which had then in due course granted planning permission. The permission was challenged by claimant on six grounds, one of which was abandoned before the full hearing of the case. Whilst the judge rejected grounds that alleged that the officer’s report had misinterpreted or misapplied a local plan policy in relation to heritage assets, that the report had not properly considered the scheme’s impacts on the openness of the green belt and that there had been apparent bias on the part of the council, the judge allowed the claim on the basis that (1) there was a breach of section 100D of the Local Government Act 1972 given that two background papers had not been published alongside the officer’s report that would have showed a disagreement between expert ecologists about whether the required biodiversity net gain (BNG) could be achieved and that (2) the planning committee had been materially misled by officers in relation to concerns about whether the required BNG could be achieved.

It is interesting to note that the council was defending the claim until shortly before the June 2026 hearing but, following the change of political control of the council the previous month, it informed the court that it would no longer defend the case, leaving Spurs to contest the claim.

The planning committee resolved to approve the application on 11 February 2025 and whilst the claimant did request reconsideration of that decision, this was not any of the grounds on which the judicial review was eventually brought. Only after the permission was eventually issued on 22 July 2025 was a “lengthy and detailed pre-action protocol letter from the claimant’s solicitors” sent on 2 August 2025 – by which time it was of course too late for the council or applicant to do anything about the grounds pleaded.

R (Staunch Campaign Limited) v North Northamptonshire Council (Sir Peter Lane, 30 July 2026)

This was an unsuccessful challenge by a local campaign group to planning permission granted for a large commercial development. The claimant relied on five grounds of challenge, all based on alleged breaches of the Conservation of Habitats Regulations 2017 in the way in which the council had determined the application.

R (Royal Mint Court Residents’ Association) v Secretary of State (Dingemans LLJ and Lieven J, 31 July 2026

This was the unsuccessful challenge to the government’s decision to grant planning permission for the proposed new Chinese Embassy at Royal Mint Court, just to the east of the Tower of London. Again there were five grounds of challenge  on a variety of grounds: unlawful approach to the enforcement of planning conditions and obligations (given the identity of the People’s Republic of China as the applicant); unlawful failure to disclose a Security Statement (summarising a risk assessment that had been commissioned by the PRC) and a Blast Assessment (commissioned by the local planning authority); non-compliance with Article 7 of the Town and Country Planning (Development Management Procedure) England Order 2015 (on the basis that applications were redacted so as not to show all internal room layouts proposed), and unlawful failure to identify and assess human rights.

We also had the publicity given to the apparent end to another east London planning law saga, the Holborn Studios litigation, ten years after the first planning permission was granted (later quashed in 2017 following a judicial review brought by Holborn Studios) for redevelopment of a building then occupied by Holborn Studios. A second planning permission was granted in 2019 and then again quashed in 2020 following a judicial review again brought by the same claimant. Planning permission was then granted for a third time, by a planning inspector on appeal, in 2024 and was quashed by the High Court in 2025. Landmark Chambers has announced Court of Appeal allows appeal in Holborn Studios litigation although in fact unusually the appeal was allowed by way of a consent order dated 17 July agreed between the parties and endorsed by the court, following Holborn Studios having been placed in administration. Ten years…!

It would be interesting to reflect on whether the government’s latest proposals to reform judicial review would have enabled any of these disputes to have been resolved at an earlier stage (I doubt it) and indeed what else might be effective. For instance, in some cases surely there may be a role for what I suggested in my 12 July 2026 blog post:

“The data in relation to any large scheme can be complex and nuanced. And if there is a mistake, a potential claimant for judicial review currently (ridiculously) has the luxury of being able to stay quiet, deliberately, until the permission is issued, perhaps months later after the section 106 agreement has been completed, before then popping up with his or her grounds of challenge once it is too late for the council or applicant to do anything about them (the obvious solution would be for the High Court’s pre-action protocol in relation to judicial review in the Planning Court to set out an expectation that a potential claimant should usually send its pre-action letter promptly once it ascertains that grounds for potential challenge have first arisen rather than being able to wait until the permission has issued but I’ve said that too many times to no effect).”

There I’ve said it again.

Simon Ricketts, 1 August 2026

Personal views, et cetera

We’re Getting There?

This government’s manifesto commitment to build 1.5m homes over this Parliament in England becomes more implausible by the day. 

Publication finally, by last week before the Parliamentary summer recess, of the final version of a significantly re-structured, more directional NPPF as per the 16 December 2025 draft was meant to be part of that push – setting out the approach to be taken in new style local plans and spatial development strategies (to be in place by this Parliament) and putting in place sharpened pro-development presumptions in favour of planning permission in specified circumstances. 

However, nothing came down the track despite much last minute speculation. 

It was all not happening as I was heading off on holiday, by train as it happens. 

OK we will have a new prime minister on Monday. But why should that have caused any delay? Why was the current version not published, if necessary with a health warning that it would be reviewed further in due course? Why was it not possible to achieve Burnham sign-off last week?

Because, now there are two possibilities: (1) Andy Burnham and his new ministerial line-up read it and publish it in September in its intended form (in which case we have lost another two months for zilch) or (2) they set about reshaping it, although in what direction is a mystery given that there is no hint of any change on direction which would impact on the document itself as opposed to routes to delivery of, for instance, affordable housing (in which case surely we are not looking at September but more likely December, once the redrafting has been done, read-outs taken, particular sounding boards sounded etc). 

There was the usual end of term splurge of other announcements but no NPPF. And in London we of course had the publication of the draft London Plan for which surely there will be trouble down the line.

If this were my “out of office” email, in my absence… 

I would finally note that Parliament returns from summer recess on 1 September, but then there is the further recess for the party conferences between 15 September and 12 October. Christmas recess starts on 17 December. The draft NPPF was published on 16 December 2025. My prediction is that the final version will be on its first birthday, although please do prove me wrong MHCLG (or whatever your acronym may be by then, given the likelihood of deckchair rearrangements in the meantime). 

Happy holidays.

Simon Ricketts, 19 July 2026

Personal views, et cetera

Draft Planning Committee Reports: Sharing Is Caring

This is an issue which comes up all the time in practice. The appellant is keen to have sight of a draft of the officer’s proposed report to planning committee in relation to its application but the officer is nervous whether to do so, particularly where the matter is contentious, in case to do so would found a potential ground of challenge for an objector on grounds of breach of natural justice.

Ironically, the more contentious the proposal, the more anxious the applicant’s team will be to see the report in draft before it is issued. In my experience, this is not to influence the judgments reached in the draft report (no officer would accept that), but rather to ensure that there are no material inaccuracies and no misstatements of the relevant legal and policy tests, any of which if uncorrected could lead to a successful judicial review of any planning permission subsequently issued. The trip hazards for councils (and therefore indirectly for applicants) are innumerable and growing. The data in relation to any large scheme can be complex and nuanced. And if there is a mistake, a potential claimant for judicial review currently (ridiculously) has the luxury of being able to stay quiet, deliberately, until the permission is issued, perhaps months later after the section 106 agreement has been completed, before then popping up with his or her grounds of challenge once it is too late for the council or applicant to do anything about them (the obvious solution would be for the High Court’s pre-action protocol in relation to judicial review in the Planning Court to set out an expectation that a potential claimant should usually send its pre-action letter promptly once it ascertains that grounds for potential challenge have first arisen rather than being able to wait until the permission has issued but I’ve said that too many times to no effect).

Of course, if the report to committee is published, as it has to be, at least a week before the meeting, there is nothing to prevent any party, including the applicant, from identifying errors and seeking for them to be remedied by publication of an addendum report, or by oral comments at the meeting itself, but surely it’s a big enough ask to expect committee members to read and understand the main report itself in time for the meeting, without them having to address the subsequent inevitable flow of addendum reports and miscellaneous late representations (each of which legally has to be taken into account). It’s surely become a fiction that any but the most diligent of committee members has indeed actually read and understood all of the available material? The main report should surely be the document of record.

It’s helpful then that Deputy High Court Judge Tim Smith has now handed down judgment in R (Davis) v Isle of Wight Council (Tim Smith sitting as a Deputy High Court Judge, 8 July 2026), where the ground of challenge by the claimant (an objector to a proposed renewable energy scheme) to a local planning authority’s grant of permission was that the sharing with the applicant by the authority’s officer of her draft report, giving the applicant the exclusive opportunity to influence the final version, was a breach of natural justice that caused prejudice to the claimant.

On the facts he found that it wasn’t but more interestingly he ventured to set out some factors to note “for determining when it will be fair or unfair to share a draft report to Committee selectively”:

“106. As I see it, relevant considerations include at least the following:

  1. Firstly, and most importantly, it should be non-negotiable that the officer responsible for the report has exercised some independent judgement in relation to any input received. Plainly, an officer who allows the applicant to draft the report to Committee and then accepts it without review would be abdicating their professional responsibility entirely. One would hope that no case before the court ever asks for a ruling on behaviour as deficient as this. But it is much more likely that, as here, the officer is asked to consider comments made on a pre-existing draft report. Whatever the fact pattern, some active engagement with the suggestions must be demonstrated by the author. Mere passive or unthinking acceptance of the comments will not be sufficient;
  2. An officer’s exercise of discretion might be revealed in how he or she receives and acts upon comments. That may be clear on the face of the evidence, for example if suggestions have been made but have demonstrably been rejected. It may also be explained in a witness statement from the officer in question, applying the requisite degree of scrutiny over such ex post facto evidence (see Ermakov v Westminster City Council [1995] EWCA Civ 42 and R (United Trade Action Group) v Transport for London [2021] EWCA Civ 1197 (“UTAG”));
  3. At a more granular level, whether the officer’s view was arrived at unprompted by any comments may also be a relevant factor. To illustrate the shades of grey involved in such an exercise, in oral argument I posited with Counsel two hypothetical scenarios that are closely linked but different. In the first scenario the officer shares a draft report with the applicant, noting about one aspect of it “This is a relevant issue. I propose to tackle it like this. What do you think?”. In the second scenario the request from the officer is “This is a relevant issue. How do you think I should tackle it?”. I do not suggest that one approach is always permissible and the other not, but equally one can see that the former is preferable to the latter in evidencing unprompted thought on the part of the officer;
  4. The substance of the comments accepted will also be a relevant factor. Some may be inconsequential, some may be pivotal. Although not an exhaustive list, comments might be offered on the following aspects of a report (in ascending order of significance): (i) correcting typographical errors, (ii) correcting internal inconsistencies clear on the face of the report, (iii) correcting factual inaccuracies which are readily ascertainable from the application documents themselves, (iv) introducing additional material not found amongst the application documents but which is readily ascertainable from public sources – for example ONS data, (v) evaluative comments on particular issues (having regard also to how significant the issue is in the determination of the application), (vi) comments on how the officer conducts the planning balance required by section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, and (vii) comments on the substantive recommendation being made to members of the Planning Committee; and
  5. The greater the degree of transparency around the assistance obtained, the less arguably unfair its use will be. Revealing that the draft report was shared for comments will go so far, but revealing the comments actually received and showing how many of them were accepted will be better.

107. Having considered the effect (both individually and cumulatively) of comments on a draft report, there is also – as Mr Parkinson rightly submitted – a need to take a step back and look at the fairness of the decision-making process as a whole. This will entail a number of additional considerations, a non-exhaustive list of which includes:

a) Whether third parties had their own opportunity to comment on the report prior to it being considered by the decision-maker, and

b) Whether third parties had additional opportunities to influence the decision-maker on the decision to be taken (for example, were they afforded the opportunity to make a presentation at the Planning Committee meeting?)”

To my mind, this is all good advice, largely representing current good practice in those situations where authorities are already willing to share drafts. I hope it will encourage those authorities which have to date been reluctant to take an equivalent approach. Their concern as to risk of legal challenge is not just misplaced but outweighed by the greater risk of legal challenge arising from uncorrected errors in the published report, and by the desirability of reducing the need for lengthy addendum reports and errata lists.

Final thought: we do need to think through how to ensure that grounds for legal challenge do not unnecessarily arise by way of mistakes in officers’ reports where decisions are taken by way of delegated authority, which is likely to be more frequently the case given the imminent changes covered in my 13 June 2026 blog post Delegation Nation – where there is not the required discipline of publishing the report a week ahead of the decision. This in my view increases the need for drafts to be checked by applicant teams, particularly in potentially contentious situations.

Simon Ricketts, 12 July 2026

Personal views, et cetera

Londonism

I’m not sure what Manchesterism is but Londonism surely isn’t working.

The 2024 Places for Everyone joint development plan for Bolton, Bury, Manchester, Oldham, Rochdale, Salford, Tameside, Trafford and Wigan leaves it to local authorities “through local plans” to set “targets for the provision of affordable housing for sale and rent as part of market-led developments based on evidence relating to need and viability”.

In contrast, the London Plan has traditionally set London-wide targets. The 2021 plan sets a strategic target of 50% (policy H4) and thresholds within H5 of 35% and 50% for different categories of land which, if not met, require viability appraisal and a late stage viability review process to secure affordable housing where possible due to future improvements in viability.

Five years on from the London Plan, the effect of those thresholds is surely obvious to all: see my 18 October 2025 blog post London Stalling .

The Government and the Mayor of London finally reacted to the obvious need for stimuli by way of an initial policy note on 23 October 2025 (see my blog post 4 Key Asks For The London Housebuilding Support Package Consultation).

The Mayor of London’s finalised package of support for housebuilding in the capital in the form of its 25 March 2026 London Plan Guidance is now subject to a judicial review brought by three London boroughs and “formally supported” by four others. After public consultation which led to amendments from what was initially proposed, the guidance was published, with support from the government,  on 25 March 2026 to respond “to the current challenging macro-economic circumstances and the changing national regulatory landscape which have led to a reduction in housebuilding in the capital” and to create “an additional time-limited emergency route which departs from policy H5 of the London Plan.”

I described the package, together with associated measures by government to provide relief from CIL in specific circumstances (for which we still await the relevant legislation – spell e-m-e-r-g-e-n-c-y for me again), in my 25 March 2026 blog post “The Government And The Mayor Now Expect Boroughs, Developers And Delivery Partners To Make Full Use Of These Measures To Approve And Build The Homes That Londoners Urgently Need”.

Following widespread concern as to whether the initially proposed measures would be sufficient (see my 13 December 2025 blog post The Proposed London Housing Emergency Measures Package Is Underwhelming), my impression is that the final package has been viewed much more positively by those with stalled residential projects in the capital, with, for instance, the removal of any requirement for a late stage (as opposed to an early stage) review mechanism from the time-limited planning route (which would have killed off much funding) and the extension of the qualifying timescale.

But of course, since the 25 March publication, we have had the 7 May local elections. Which are the boroughs behind the current judicial review? The three claimants are Tower Hamlets (majority control Aspire, previously no overall control), Hackney (majority control Green, previously Labour) and Lewisham (majority control Green, previously Labour). The four boroughs supporting the litigation are Lambeth (no overall control, albeit Green-led, previously Labour), Southwark (now Green/Liberal Democrat joint administration, previously Labour), Waltham Forest (majority control Green, previously Labour) and Haringey (minority control Green, previously Labour). The Mayor no longer has the allyship of these crucial authorities.

For a judicial review brought presumably with the intention of seeking to persuade the Mayor to stick to the 35% affordable housing fast-track threshold within policy H5 of the London Plan, it is interesting (possibly even remarkable) that so little has been revealed by the boroughs as to the detailed basis for the challenge. The existence of a pre-action protocol letter was first revealed by counsel at the Hillingdon local plan examination on 14 May but is still not in the public domain. All we have in the public domain as to the proceedings themselves are press statements from some of the relevant boroughs, the most detailed being Tower Hamlets’ statement on 24 June 2026, Councils launch legal challenge to stop Mayor of London cutting affordable housing.

“The legal challenge, backed by seven local authorities, relates to the Mayor of London’s attempt to reduce the current 35% affordable housing quota in the London Plan without using the proper statutory process for amending that plan. It also relates to the lack of a fair consultation before the policy change was made, including a lack of evidence justifying the blanket reduction to 20% affordable housing in all London boroughs.”

It is right of course that no decision maker should treat the London Plan Guidance as a formal part of the development plan or in any way formally amending London Plan policy H5 (although in any event the supporting text to policy H5 anticipated some flex , albeit upwards: “The 35 per cent threshold level will be monitored and reviewed in 2021 to determine whether this threshold should be increased. Any changes to the threshold will be consulted on as part of an updated Affordable Housing and Viability SPG or through a focused review of the London Plan“). But isn’t it obvious that it is for the decision-maker to consider the requirements of policy H5 in the context of current circumstances and that the London Plan Guidance represents the Mayor of London’s guidance as to the weight that he currently considers should be applied to those 2021 thresholds versus the time-limited measures in the guidance? If that isn’t already abundantly clear, the Mayor could and should make it so. In that context, albeit with appropriate deference given that the authorities have not chosen to share to place their detailed grounds in the public domain, what really is the point of this litigation? What decision maker in the real world is going to misunderstand the position?

The question arises as to what developers should now be doing if they had previously been intending to rely on the London Plan Guidance. Should their strategy change in the light of the litigation? In my view, no. The Guidance is lawful unless and until quashed and, in any event, as mentioned, any decision-maker will surely be careful not to treat the Guidance as part of the development plan as opposed to advice (which they may or may not consider sensible) as to the weight which the Mayor considers should in the current economic climate be given to policy H5.

The judicial review is certainly an early indication as to the potential treatment by at least seven boroughs of applications which are promoted on the basis of the 20% time-limited route, meaning that applicants will need to consider whether to press on with a view to potential call-in by the Mayor (for schemes comprising 50 dwellings or more) or appeal to the Secretary of State or whether to proceed by way of the viability-tested route, accepting the need for a late-stage review mechanism. But I can’t see how those boroughs’ combative approach might conceivably result in more affordable housing being delivered. If you disagree, please explain.

What is Andy going to make of all this I wonder?

Simon Ricketts, 5 July 2026

Personal views, et cetera

Wishful Thinking

“It’s time we should talk about it

There’s no secret kept in here

Forgive me for asking

Now wipe away your tears

And if I wish to stop it all

And if I wish to comfort the fall

It’s just wishful thinking”

(Wishful Thinking by China Crisis, 1983 – tune!)

MHCLG published two pieces of advice this week that might be construed as wishful (and therefore potentially misleading) thinking:

CIL

On 25 June the housing and planning minister wrote to all CIL charging authorities in England in relation to household developer exemptions:

“While the CIL Regulations provide clarity on the criteria that must be met and procedures that must be followed to secure relief or an exemption, the Government is aware of some historic cases where householders have failed to obtain an exemption due to procedural errors, which may have been inadvertent or unintentional. In some instances, despite meeting the qualifying criteria, householders may not have followed the procedures set out in the regulations, and may not have applied for or received a CIL exemption before commencing development. In others, an exemption may not have been obtained because retrospective planning permission was granted after further works had already begun on a development that had previously benefitted from an exemption or was otherwise not liable for CIL. The Government recognises that this has, in some cases, resulted in the imposition of significant CIL charges under the regulations.”

Too true! See for example my previous blog posts CIL The Merciless (19 January 2019), Trent Won, Cil Nil  (14 April 2021) and CIL: There Is No Equity About A Tax (10 July 2021).

So what is it proposing to do? First: “The Government is proposing to consult on a proposed package of targeted regulatory changes to make the operation of CIL clearer and more proportionate for householders and self-builders.“

So far so good (although if you asked me I would either entirely remove CIL liability for householder development or I would entirely remove the self-build exemption).

But, the second section of the letter is headed “historic cases” and has three strands:

  • “First, we strongly recommend all authorities to review their local CIL guidance and communication methods to ensure any household developers in their area are aware of the current exemptions and the necessary procedures to access them.” (What more or better communication does anyone suggest? Authorities do in my experience communicate the position both on their websites and via informatives on permissions – the problem is the complexity of the system itself for people without the sophisticated tax administration advice needed).
  • “Second, while charging authorities have a duty to collect CIL that is due, they continue to have a degree of discretion over the steps they take to do so and when. This includes considering what is reasonable and proportionate in any given case and the appropriate timescales for enforcement activity. It has been brought to the Government’s attention that escalated enforcement actions, including threats of forced sale or criminal proceedings, have led to serious consequences for some individuals and families. Such action, or similar, is not required by the regulations without regard to local authorities’ broader legal obligations – and the precise approach to CIL collection in any individual case will depend on the specific facts and circumstances. Exactly what enforcement steps to take, and when, to collect CIL in each case is a matter for the judgement of the authority concerned.”
  • “Third – where an authority feels this is justified – collecting authorities are able to make ex gratia payments of compensation from their general funds in exceptional CIL cases where payment has been made. Such payments would not constitute a waiver or refund of CIL, but rather a discretionary payment made from general funds, outside the CIL regime. These circumstances may arise where a charging authority considers that redress is appropriate because a householder developer would have been entitled to an exemption but, as a result of an administrative error, failed to claim it in accordance with the required procedure and now faces significant hardship as a consequence. There will be a range of considerations for local authorities in making such a decision, and in all cases, they should seek their own legal advice based on the facts and circumstances of individual cases.”

These last two suggestions in my view paint an over-optimistic picture to those who have incurred CIL liability through (often understandable) mistakes. Just look at the case law cited in the blog posts I mention, or indeed more recently R (Luck) v Bracknell Forest Borough Council (Lieven J, 14 November 2025) which reviews that previous case law:

“A number of points in respect of the CIL regime can be drawn from this caselaw:

a. CIL is akin to a tax, see Gardiner at [35];

b. The purpose of CIL is to provide funding for necessary development and to provide certainty to developers and the collecting authority as to when and how such liability arises, see s.205 PA and Heronslea at [120];

c. The statute and Regulations form a detailed statutory code which is self-contained and carefully constructed, see Gardiner at [48];

d. The imposition of CIL is not discretionary, see Shropshire at [44];

e. There is a strict procedure set out in Regulation 54B, which is obligatory, see Gardiner at [57];

f. Liability for CIL must be precisely and reliably calculated on an objective basis, see Gardiner at [63].”

“Given that the Court of Appeal have held that CIL is a form of taxation, it is relevant to consider the caselaw on the scope of HMRC’s powers to waive tax which would otherwise be liable. In R (Clamp) v HMRC [2022] 1 WLR 1067 Butcher J was considering a judicial review concerning HMRC’s powers to enter into assurances with taxpayers as to tax liability.”

Butcher J in Clamp: “HMRC cannot properly, however, make concessions that tax should not be payable, where this is done not to facilitate the overall task of tax collection, but because they consider that a tax which Parliament has clearly imposed should not as a matter of principle or policy, or by reasons of considerations of equity, be payable.”

Lieven J in Luck: “Quite apart from the detail of the Regulations, there are two overarching reasons why it would be surprising if there was a broad discretion to waive CIL. Firstly, as is set out by the High Court in Clamp, one would not normally expect a tax collecting authority to have an unfettered discretion to waive the tax that Parliament had set. That point is even stronger here than in Clamp, because the local authority under the CIL regime is not in the same position as HMRC with broad management powers and a fairly wide discretion to reach “arrangements” with the taxpayer. So, it is even less likely that the local authority would have such a broad discretion to waive liability.”

“Secondly, to construe Regulation 65(7) as a broad discretion to waive CIL seems inconsistent with the rest of the Regulations. It would be a wholly unfettered discretion, with no criteria set out, in marked contrast to Regulation 55. There is no parallel power in relation to demand notices, so if the liability notice can simply be withdrawn, the court would have to imply into the Regulations a power for the demand notice to be withdrawn or to cease to have effect. The Claimant argues that by withdrawing the liability notice the underlying liability itself ceases. However, for Regulation 65(7) to have this effect would be inconsistent with the Court of Appeal decision in Braithwaite, which held that the liability continues to exist even where the liability notice is withdrawn.”

Yes, the collecting authority does have some discretion as to the enforcement steps it will take. It also specifically has discretion as to whether to impose surcharges. But other than that it has to operate within the narrow tramlines of the legislation. For someone who has made a very expensive mistake which has caused them to lose the benefit of, say, the self-build exemption, the fact that the authority may (may, no guarantee at all) choose not to resort to prosecution or an injunction to enforce payment is of little consolation if the house is ever to be mortgaged or sold.

As for the suggestion of the authority making ex gratia payments where the householder has made the administrative error rather than the authority….really?? All that this is going to lead to is many detailed, often heart-wrenching, requests, often backed by increasingly assertive legal submissions, as to why in the particular circumstances an ex gratia payment should now be made. And it’s the hope that kills because surely the authority’s response, after spending time and resources as they “seek their own legal advice based on the facts and circumstances of individual cases” is going to be “no”?

Isn’t all this papering over the cracks rather than making proper repairs?

Air conditioning units

On the same day, 25 June 2026, MHCLG published a blog post, Air conditioning rules. It starts like this:

“There has been media coverage this week suggesting that air conditioning is banned in homes. This is incorrect.

Air conditioning can be installed in both existing and new homes.

In most cases, planning permission is not required to install it for a small home if it would not materially affect the appearance of the building from outside.

However, there is no blanket rule. People should speak with their local council to check the rules, and councils should take a common-sense approach.”

It ends like this:

“A government spokesperson said:

“Air conditioning units are not banned. They can be installed in both existing and new homes and we expect councils to take a common-sense approach to the rules around this, which are there to manage the interests of communities and the environment.”

So let’s assume I’m a member of the public and I’m thinking about installing an air conditioning unit. I assume that government spokesperson is not thinking of one of those internal units with a hose that waggles inefficiently out of the part-opened window? If it’s a split unit device with an external unit and internal unit, the external unit does not have the benefit of any permitted development rights unless it is in the form of an air source combined heating and cooling unit (for which there is a right subject to limitations and conditions in class G of Part 14). Otherwise the question is one for the local planning authority as to whether in its planning judgment a large white box on the exterior of the building materially affects its external appearance, which will always come down to various site-specific factors. Are you going to check with the authority first before you make your expensive purchase? In many locations, and in the absence of formal government advice (which that blog post is not),  I anticipate that officers would conclude that planning permission is required.

CIL and planning officers: I would welcome your respective thoughts on both of these announcements.

Simon Ricketts, 28 June 2026

Personal views, et cetera

Route 62A

It’s like Route 66 but with more roundabouts. 

My Town Legal colleague Charlie Austin recently wrote a piece in Estates Gazette, The beginning of the end for localism? (18 May 2026, behind paywall). He goes through various strands of MHCLG’s current programme, including expanded delegation of decision-making to officers (see my 13 June 2026 blog post Delegation Nation), new referral requirements to the Secretary of State and London Mayor (see my 5 April 2026 blog post Further Measures To Discourage LPA Refusals Of Large Housing Schemes…Activated) and the more prescriptive thrust of the draft revised NPPF.

To that list could be added MHCLG’s designation on 15 June 2026 pursuant to section 62A of the Town and Country Planning Act 1990, of nine local planning authorities where applications for planning permission for major development may now be made direct to the Planning Inspectorate.

The list is:

• Cherwell

• Dacorum

• Epping Forest

• Hertsmere

• Malvern Hills

• Rossendale

• South Tyneside

• Staffordshire Moorlands

• Wychavon

All of which join Lewes, which was designated back on 8 May 2024.

This week’s designation notices all have the same text:

“On 4 December 2024 the Secretary of State laid before Parliament a document setting out the criteria for designation and de-designation under section 62B of the Town and Country Planning Act 1990 (“the designation criteria”). Neither House of Parliament resolved that the designation criteria should not be approved within the 40-day period referred to in that section.

In applying the designation criteria, the Secretary of State has considered data for the two year period ending on 31 March 2025 and subsequent appeals decisions to 31 December 2025 on the quality of decision making by local planning authorities on applications for planning permission for major development. The Secretary of State, in exercise of the powers conferred by section 62A of the Town and Country Planning Act 1990, and by reference to the designation criteria mentioned above, considers that there are respects in which the local planning authority specified below is not adequately performing their function of determining applications for planning permission for major development under Part 3 of the Town and Country Planning Act 1990 and therefore, it is appropriate to make the following designation:

[ ] Council in respect of applications for planning permission for major development. Duration of designation This designation has effect from 09:00 on 15 June 2026 and shall remain in force until revoked.”

MHCLG’s designation criteria guidance is here.

For the purposes of this week’s designation: “The threshold for designation on applications for both major and non-major development, above which a local planning authority is eligible for designation, is 10 per cent of an authority’s total number of decisions on applications made during the assessment period [the 12 months up to and including the most recent quarter for which data on planning application decisions are available at the time of designation] being overturned at appeal.”

Planning magazine provided the useful table below in their designation day news piece (Pennycook places nine councils in planning performance ‘special measures’ for poor quality decision-making, 15 June 2026 (behind paywall)):

What are the implications of designation?

The applications can now be made direct to the Planning Inspectorate are those for major development, namely:

  • for housing, development where 10 or more homes will be provided, or the site has an area of 0.5 hectares or more
  • the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more; or
  • development carried out on a site having an area of 1 hectare or more.

We have a good picture both from the procedural requirements and guidance but also given previous designations (Fareham de-designated in March 2024, Chorley, St Albans and Uttlesford de-designated in June 2025 and Bristol de-designated in January 2026).

The Planning Inspectorate has procedural guidance for applicants, designated authorities and interested parties . In broad summary:

  • Applicants can secure pre-application advice from PINS at £134 per hour. PINS appoints a case officer who is then the main point of contact and requests necessary background documentation from the authority. The planning inspector reviews the pre-application submission (there is a form and a list of necessary documentation) and carries out a site visit, holds a meeting with the applicant and issues formal advice to the applicant. Pre-application community consultation by the applicant is strongly encouraged as well as “meaningful” consultation with statutory consultees.
  • The application can then be submitted (with at least ten working days’ advance notification given). The fee is the same as for submission to the local planning authority.
  • PINS carries out consultation with statutory consultees and the designated local planning authority, advertises the application in a local newspaper (how quaint), and publishes any consultation responses online.
  • The local planning authority must provide a substantive response to the consultation within 21 days, including matters it considers should be addressed by way of section 106 agreement or conditions and should “work constructively with the applicant to ensure any Section 106 agreement is completed within the required timescales”.
  • “When submitting an application to the Planning Inspectorate, applicants must ensure that it is ready for determination. A decision will be made on the application as submitted. There is no specific provision in the process for amendments or revision to the application once it has been submitted. Applicants should ensure that the relevant information is submitted with the application, as we will not accept any additional information once the application has been submitted, other than in exceptional circumstances.”
  • At the end of the consultation period, PINS will determine the procedure to be followed. “Planning applications relating to development of a significant scale, and which raise issues which cannot be clearly understood from the written submissions will require a hearing.”
  • “It is the responsibility of the applicant and the LPA to ensure that a completed agreement is in place so that it can be taken into account in reaching a decision. For applications dealt with by the written representations procedure, the completed agreement should be submitted within two weeks of the end of the representation period. Where there is a hearing the agreement should be submitted in advance of the hearing date.”
  • “The Planning Inspectorate will issue a formal decision notice incorporating a statement setting out the reasons for the decision. If the application is approved the decision will also list any conditions which are considered necessary.”
  • There is no provision to appeal the decision.
  • CIL processes work as if the decision were taken by the authority.
  • “Where planning permission has been granted under Section 62A the LPA continues to have the responsibility for monitoring the implementation of the permission, ensuring that it is carried out in accordance with the approved plans and any attached conditions. Applications for the approval of details required by condition must be submitted to the LPA. Applications for variation or removal of conditions can also be made to the LPA.”

What all this means in practice is that potential applicants have much to weigh up in deciding or not whether to make their application direct to PINS.

On the plus side, for a scheme that is straight-forward with little risk of subsequent refinements being required, there is more time certainty (and particularly in relation to negotiation and completion of any section 106 agreement), a straight-forward approach to the pre-application engagement and, if the sense is that the application may need to go to appeal anyway, it gets you before an inspector without that initial application stage.

On the minus side, many applicants may wish to maintain a constructive relationship with the particular local planning authority, and will be rightly concerned about the lack of any ability to revise applications or submit further material during the process, as well as the fact that there is just the one roll of the dice, with no subsequent right of appeal. For the local planning authority, the loss of planning application fees can of course have a significant impact.

If you would like to see some examples of applications made, timescales and the relevant documentation there are links here to all applications made in relation to Uttlesford before that authority was eventually de-designated.

Simon Ricketts, 20 June 2026

Personal views, et cetera

Delegation Nation

The new rules (for England) limiting which planning applications can be determined by local councillors come into force on 31 October 2026, a month later than previously intended.

The draft Regulations are accompanied by statutory guidance (1 June 2026) and a draft impact assessment which arrives at the following calculation:

““[Net present social value] (2025 prices, 2026 base year): £509.4 million (Low: £102.6 million and

High: £1,352.3 million)

Central direct monetised impacts (NPSV in 2025 prices, 2026 base year):

• Reduction in costs of holding capital related to determination times (to developers): £329.5 million

• Reduction in costs of holding capital related to appeals (to developers): £127.8 million

• Reduction in costs related to appeals (to developers): £46.0 million

• Reduction in costs related to appeals (to public sector): £6.1 million

• Familiarisation costs (to public sector): <£100,000”

Half a billion pounds is not to be sneezed at.

There is (of course) a comprehensive Lichfields blog setting out how the new system will work (Delegation default: power to the Chief Planner, 11 June 2026). Schedule 1 applications must always be delegated to officers. With Schedule 2 applications there is a presumption that applications will also be delegated, unless (1) unless the nominated officer and nominated member agree the application should be referred to a planning committee or sub-committee for determination and (2)  it meets at least one of the criteria in regulation 5(3), namely:

  • A: where the application raises an economic, social or environmental issue of significance to the local area; and/or
  • B: where the application raises a significant planning matter having regard to the development plan and any other material considerations.

For B, “the following circumstances are unlikely to raise a significant planning matter:

  • where the application for development broadly complies with a detailed site allocation and other relevant policies set out in a local or neighbourhood plan and national decision making policies set out in the National Planning Policy Framework. Significant planning matters may arise if new material considerations are raised by the application.
  • where a specific planning matter (e.g. highways or flood risk) was initially raised by a statutory consultee as a concern, but the development proposal has been modified to make it acceptable in the view of the statutory consultee (unless the nominated officer has compelling reasons to consider otherwise).”

Schedule 1 includes applications for householder development, minor commercial development, minor residential development (fewer than ten dwellings), most reserved matters, condition discharges, prior approvals, permissions in principle, NMAs and certificates of lawfulness.

There are a few changes in the make-up of the schedules since the draft proposals that I summarised in my 31 May 2025 blog post Small Changes , for example:

  • reserved matters applications in relation to phased outline planning permissions will only be in Schedule 2 if the outline permission scheme is for the provision of 500 or more dwellings or buildings with 50,000 sq m or more floorspace.
  • section 73 applications will now be in the same schedule as the application for the original permission.

Local authorities will need to adopt appropriate processes to get this right. This table in the Lichfields blog post gave me a familiar sinking feeling…

What can go wrong?

Well, as set out in the statutory guidance:

“For the avoidance of doubt, where local planning authorities do not comply with the Regulations from the date they come into force (31 October 2026) and their planning committees make decisions on applications which must be delegated officers [sic], those decisions may be subject to judicial review by anyone aggrieved by the decision. This may lead to the quashing of the decision.”

Let’s look at a couple of permutations:

  • Planning committee makes a decision which should have been delegated to an officer. If the decision is to approve, that gives rise to the potential for third parties to challenge the decision. If the decision is to refuse, what does the applicant do? If the authority does not agree to re-determine the application (at least before the decision is formally issued), yes it could judicially review the decision but its more effective remedy may simply be to appeal (and in so will have to grapple with the dilemma of potentially being in a position where it is submitting an appeal in relation to an unlawful refusal notice).
  • Officer makes a decision on a Schedule 2 application without having considered with the nominated member, in accordance with its published procedures, whether it should be determined by committee. First of all, to state the obvious, in many contentious cases there is going to be much pressure placed on the nominated officer and member (usually from objectors, sometimes potentially even from the applicant) for the application to go to committee. If there are grounds for asserting that the process has not been carried out lawfully, you can bet that they will be relied upon. Officers really will need to be robust and clear in their approach and to have the full support of members in order for these changes to work as envisaged and not to lead to unnecessary delays.

Last comment: I googled to find that previous blog post I did on these proposals. This is how reliable or not Google AI is, folks. Matt, if you wrote it I’m sure the blog would be more popular!

Simon Ricketts, 13 June 2026

Personal views, et cetera

Crewsing For A Bruising?

The 7 May 2026 local election results will create various flashpoints as between locally elected politicians and the government’s planning policies.

An early, perhaps totemic, one is over the proposed new town at Crews Hill and Chase Park within the north London borough of Enfield, now that the Conservatives have taken the council.

The Government’s 23 March 2026 new towns draft programme (the consultation period for which closed on 19 May) has it as one of three “priority interventions” within its final draft shortlist of seven:

“Crews Hill and Chase Park, Enfield provides an opportunity with high potential for land value capture through green belt release – delivering up to 21,000 homes in outer London, a region facing extremely high housing demand and low housing affordability.

The potential impacts on the natural landscape could be significant given the site’s greenfield status. These will be mitigated wherever possible through comprehensive masterplanning and consideration of how the Enfield Chase Landscape Recovery project could support mitigation and nature recovery.

Our view is that any remaining impacts would be outweighed by the need for housing delivery in London and low availability of land, especially as the existing greenfield land is low-quality agricultural use.”

The previous Labour administration had supported the designation.

The submitted local plan, currently at examination, allocates Crews Hill and Chase Park as strategic growth areas, albeit not at the scale envisaged by the government’s New Towns Taskforce. Following the government’s earlier new towns announcement in December 2025, the local plan inspector had invited responses to the issues raised in so far as they might relate to the local plan examination process and the council had responded on 20 January 2026 that further engagement on the new town designation would take place separate from progress on the proposed local plan allocations. Main modifications consultation is still to take place followed by publication of the inspector’s final report.

In the meantime, on 28 May 2026, following the election of councillor Alessandro Georgiou as leader, the council announced that it has “formally withdrawn” from the new towns programme and “will no longer support proposals linked to the programme, including development at Crews Hill, Vicarage Farm and across parts of the borough’s Green Belt”. Georgiou’s letter states:

“The new Conservative administration was elected on a clear and unequivocal mandate to protect our borough’s irreplaceable green spaces. The strength of public feeling on this matter cannot be overstated: 77% of the Enfield electorate voted for parties whose 2026 manifestos explicitly committed to opposing the proposed New Town. This decision directly reflects the democratic will of the residents we have  been chosen to represent.

… it is important to note that the London Borough of Enfield is itself a major landowner within the designated New Town area. As the principal custodian of this land, our administration has resolved to use our strategic position and ownership rights to actively ensure that these vital natural assets are preserved, rather than being surrendered to unsustainable urban sprawl.”

It’s an interesting battle of “democratic wills” given that of course Labour’s 2024 general election manifesto promised to “build a new generation of new towns” across England.

The government’s March 2026 new towns consultation programme consultation document indicated that the government “intends to publish final proposals and confirm the new towns locations later in the Summer. We will publish a full government response to the recommendations of the New Towns Taskforce, including more detail on how our confirmed locations will be delivered in line with our ambition for the programme.

Following confirmation of which locations will be taken forward through the New Towns Programme, the government will use every lever at its disposal to prioritise early delivery of homes and infrastructure. This includes establishing clear programme governance through a single front door to government, agreeing delivery vehicles for selected locations, and mobilising funding and business case work with local partners to enable infrastructure-first masterplanning.”

However, ahead even of publishing those final proposals, the prime minster has this week come out fighting in reaction to the position now taken by Enfield. From a 3 June 2026 press statement :

“Where projects have stalled or been watered down, the government will back mayors to push them through – unlocking homes, infrastructure and jobs, particularly for younger generations.

This includes challenging Enfield Council’s refusal to support a proposed New Town in an area with significant housing need, which is near to an under-used train station. The Prime Minister is clear that decisions on new towns will be taken in the national interest alone, because it will be the next generation that suffers from inaction.

He will also confirm action to deliver the public transport services that new homes rely on. This includes confirming that the government is in discussion with the Mayor of London to bring the local services from Moorgate to Welwyn Garden City and Stevenage under Transport for London control. This could improve reliability and deliver easier connections across the network, including the proposed New Town at Crews Hill and Chase Park.”

So what could we see now? Surely, negotiation between the Government and the Mayor of London with a view to the Mayor creating a Mayoral Development Corporation, with compulsory purchase as well as planning powers, to seek to ensure that the Crews Hill and Chase Park proposal comes forward. Given the end of the Mayor’s current political term in May 2028 and the prospect of a general election the following year at the latest, there is some need for speed.

The prime minister presumably cannot be seen to back down in the face of this challenge. If he does, the whole new towns programme could begin to unravel.

And what of the local plan? No doubt any attempt to withdraw it would lead to MHCLG intervention. But will the inspector still be able to find the plan “sound”, unless he has sufficient reassurance from the Mayor and/or government as to the steps they will be taking if the council continues to hold out?

Projects of this scale (1) require long-term political commitment and (2) invariably face local opposition.

NB I really enjoyed our “Ten Years’ Time” event on Monday evening. Thank you to those who came and thank you to all of our stellar panellists. The event raised a healthy sum for youth charity XLP (final amount still being totted up). However, we only scratched the surface of the theme. I wish I had asked the panel to predict what progress will be made in relation to any of the proposed new towns by 2036.  Answers on a postcard, if anyone remembers them.

Simon Ricketts, 5 June 2026

Personal views, et cetera

Keeping Up: JR Changes, Deadlines

Aside from the hot weather, what may well keep you awake at night (if you’re like me) is the fear of getting something wrong and that is particularly the case when there is the prospect of litigation. For a potential defendant or interested party, have we left some stone unturned (on a whole beach of small, sharp, often buried, stones) that may give rise to the opportunity for judicial review? For a potential claimant, have we missed a deadline such that any claim may be closed out?

(For ease I’m using the term “judicial review” in this post as a broad term covering statutory challenges as well but even that distinction isn’t a pedantic one in this rocky place: different rules apply to different forms of planning litigation).

Ignorance of the law is no defence, least of all for a lawyer, but the challenge of being on top of it all, and the consequences if not, only seem to increase. It’s not even straight-forward for my firm of 40 or so planning lawyers with constant knowledge sharing and a regular throughput of contentious matters. How much more difficult can it be for smaller teams, or local authority legal departments, or lay claimants seeking advice from non-specialists? (Oh and to state what should still be obvious: AI systems are a false friend: Cork v Smith (ICC Judge Mullen, 22 May 2026) – “legal professionals bear ultimate responsibility for their work and cannot outsource the process of legal research or of legal reasoning to an AI. It is a tool to be used with caution. AI has the potential to be wholly unreliable. AI may of course provide a jumping off point for research and legal reasoning but it does not, at least at present, do away with the need for proper research and thought on the part of a legal professional, even a very junior legal professional”).

I suspect that even many specialist planning lawyers read recent planning law cases like the following two with somewhat of a sense of “there but for the grace of God”:

R (Luton and District Association for the Control of Aircraft Noise) v Secretary of State for Transport (Court of Appeal, 21 May 2025)

From October 2025, the Civil Procedure Rules had been changed, reducing the time limit from 21 days to seven days for applying to the Court of Appeal for permission to appeal against a High Court’s judgment in relation to a challenge to a nationally significant infrastructure project decision. The claimant group, presumably unaware of this change, sought permission within the old 21 day deadline but not within seven days. The change had been one detailed element of  a wider package of reforms which had first been announced in January 2025 (see my 25 January 2025 blog post – at which stage that specific change hadn’t been included), in response to Lord Charlie Banner KC’s review into legal challenges of NSIPs (see my 28 October 2024 blog post).

The Court of Appeal considered the context of the change to the deadline, namely Parliament’s objective of reducing the timescales for processing DCO judicial reviews, and refused the extension of time and thus the application for permission to appeal.

Arun District Council v Secretary of State (HHJ Karen Walden-Smith sitting as a High Court Judge, 15 May 2026)

With section 288 challenges to inspectors’ appeal decision letters, within six weeks of the decision the claim not only needs to have been filed with the Court but a sealed version of the claim (and sealing by the court can take a few days, which is another story) has to have been served (in accordance with specific legal requirements) on the defendant (in practice the Government Legal Department) and on any interested parties. Here the claimant council purported to serve the interested party by emailing its planning consultant (without including all of the relevant documents and indeed relying on a “onedrive” link). The planning consultant did not confirm that he was authorised to accept service on behalf of his client. Correct service was finally effected, 32 days late.  Again, the judge refused an extension and the claim was dismissed.

More changes ahead

On 20 May 2026 HM Treasury announced further restrictions on legal challenges to infrastructure project decisions in a policy paper, Getting Britain Building: Reforming judicial review for infrastructure as part of the government’s attempts to reduce delays to the delivery of nationally important infrastructure, not just continuing the direction of travel recommended in the Banner review but also in the light of the Fingleton review (Nuclear Regulatory Review 2025: enabling nuclear delivery through regulatory reform).

The paper states that in “response to the Fingleton Review, the Government has committed to two further areas of reform: developing a government-backed indemnification scheme to give developers greater financial certainty when facing legal challenge; and extending NSIP judicial review reforms to other major planning regimes, including those under the Town and Country Planning Act.”

There are also two radical proposals outlined in relation to judicial review:

“We are … proposing to introduce two optional mechanisms to the current process for consenting NSIPs – subject to detailed design and the passage of underpinning legislation – which would allow for proportionate protection from judicial review: 

a. a parliamentary authorisation mechanism, which would be intended to provide the greatest degree of legal certainty for a narrow category of the most critical energy projects identified on a case-by-case basis by the Energy Secretary, and where Members of Parliament then judged this appropriate; and

b. a challenge window mechanism, which would allow Secretaries of State to respond in a more agile fashion to potential issues before finalising a planning consent, and limit the ability to raise other issues after the final consent was published.”

Under that first proposal, the House of Commons would be able to confirm the Energy Secretary’s determination that a particular energy project be designated as of “Critical National Importance”. “The normal process for submission and examination of the Development Consent Order (DCO) would then continue – but with the final decision put before the House of Commons again at the end of the process, and a further vote held. If approved, the DCO would be afforded a distinct statutory status specified in the underpinning legislation, akin to an Act of Parliament. As a result, the DCO would be protected from judicial review on issues other than human rights grounds.”

Under that second proposal, the “relevant Secretary of State would publish their draft decision, and as now a fixed window would then open during which any judicial reviews must be lodged. The Secretary of State would then have a period in which they could consider and address these issues before amending a final DCO. As a consequence, where any judicial reviews on the same grounds were subsequently pursued, the courts would have a clearer basis to refuse permission or relief – making use of the provisions already introduced via the Planning and Infrastructure Act on meritless claims. The law would also be changed such that the courts would refuse permission for a judicial review to proceed on any issues not brought up during the consent process or challenge window.“

These changes will not be quick: “The Government recognises these are significant reforms raising important legal, constitutional and practical questions, and will be engaging openly with the judiciary, developers, investors, legal practitioners, local authorities, and affected communities as the policy is developed and implemented.

We will set out further detail ahead of the necessary underpinning legislation being introduced.”

I suspect that what most of us are particularly interested to see is the extent to which recent and proposed changes may herald changes to judicial procedure in relation to planning decision-making more generally, outside the rarefied area of NSIPs. I have thought for a long time that in the case of decisions in relation to large development projects (where the actual permission may in practice only be issued months after resolution to grant), the system could be improved by treating the resolution to grant as triggering an initial deadline either for judicial review, or at least for service of a full pre-action letter, such that potential claimants would no longer have the ability to keep their powder dry until the planning permission has been finally issued and it is too late for the decision maker to remedy any potential issues of contention.

What is the appropriate balance to be arrived at as between, on the one hand, appropriate restraints on public bodies from acting unlawfully and, on the other hand, minimising unnecessary delays to administrative processes (whatever they may be) through ultimately unmeritorious legal arguments? Many of us could stay up all night arguing about that, for sure.

Simon Ricketts, 31 May 2026

Personal views, et cetera

Carry That Weight

“Boy, you’re gonna carry that weight

Carry that weight a long time

Boy, you’re gonna carry that weight

Carry that weight a long time”

(Lennon & McCartney, 1969)

Three interesting decision letters have been issued in the last ten days by the Planning Inspectorate in relation to large residential development projects in London:

  • Decision letter dated 14 May 2026, dismissing an appeal in relation to a proposed part 10 storey, part 28 storey building at 1 Battersea Bridge Road, including 110 new dwellings
  • Decision letter dated 18 May 2026, dismissing an appeal in relation to the proposed redevelopment of the Aylesham Centre Peckham, including 867 new dwellings
  • Decision letter dated 18 May 2026, allowing an appeal against a refusal to grant planning permission under section 73 for an amended version of an existing planning permission for the Camden Goods Yard development in Camden so as to be able to implement fire safety requirements, reducing the number of dwellings from 644 to 636 and reducing the affordable housing provision from 38% to 15%.

There has been much commentary, aimed at taking from those decisions pointers for other projects. But in my view the messaging from them is inevitably as mixed as the weather last week in Leeds.

Because, however much we all try to, and indeed often are paid to, forecast the outcome of particular applications and appeals, there are two particular aspects which make it in reality almost impossible (particularly in relation to larger, complex, projects):

  • What largely subjective assessment will the decision-maker reach on aspects such as the degree of harm caused to e.g. heritage and townscape and the significance of that harm?
  • What weight will the decision maker give to particular competing factors before arriving at an assessment of the overall planning balance?

Bear in mind those two questions as you read these extracts from the inspectors’ conclusions in these three appeals:

1 Battersea Bridge Road:

“187. Having regard to NPPF paragraph 215 and London Plan Policy D9, I must weigh the moderate, low and negligible levels of less than substantial harm to the significance of designated heritage assets, against the public benefits. All the aforementioned benefits should be regarded as public benefits. 188. The benefits of market and affordable housing delivery are substantial. These alone outweigh the harm to significance notwithstanding the considerable importance and weight I give to that harm. While NPPF paragraph 212 indicates that great weight should be afforded to the assets’ conservation, there is clear and convincing justification for the harm to these designated heritage assets as required by NPPF paragraph 213.

189. Accordingly, the proposal would have an acceptable effect on the setting and the significance of designated heritage assets. Despite the identified conflict with London Plan Policies D9 and HC1 and WLP Policies LP3 and LP4, the proposal would accord with NPPF paragraphs 212, 213 and 215.

190. Regarding the moderate indirect adverse effect on the significance of 10 – 14 and 24 – 52 Westbridge Road, 52 – 68 Battersea Bridge Road, and 11 – 35 and 61 – 71 Battersea Church Road as non-designated heritage assets and the conflict with London Plan Policies D9 and HC1 and WLP Policies LP3 and LP4, this would be significantly outweighed by the proposal’s benefits, having had regard to NPPF paragraph 216.

191. Although the heritage balance has been passed, the harms to the aforementioned heritage assets are included in the overall planning balance below.

192. While I have had regard to the appellant’s and the Council’s views on full or partial compliance with London Plan Policy D9 or with WLP Policy LP4, I do not pursue this debate further as the proposal clearly fails to comply with several of the elements of London Plan Policy D9 Part C [“visual, functional, environmental, and cumulative impacts… requires consideration of long, mid-range and immediate views; the local and wider context’s spatial hierarchy; wayfinding; architectural quality and materials; and protection and enhancement of the river’s open quality, public realm, and views”] and WLP Policy LP4 [“proposals for tall buildings will only be appropriate in tall building zones identified in WLP Appendix 2, where there would not be any resulting adverse visual, functional, environmental, or cumulative impacts”].

193. The proposal would provide the benefits of market and affordable housing, both of which individually carry substantial weight. There would be other benefits to which I have afforded significant and moderate weight and these are outlined above. However, I have afforded very substantial weight to the adverse effects on the character and appearance of the area. There are moderate, low and negligible levels of less than substantial harm to designated heritage assets which carries considerable weight and moderate indirect adverse effects on non-designated heritage assets which carry moderate weight.

194. Accordingly, the proposal would be contrary to the development plan taken as a whole, and there are no material considerations that indicate that planning permission should otherwise be granted.”

Aylesham Centre:

“98. Contrary to the appellant’s primary contentions, I have found that there is only partial compliance with the adopted development plan for the area, taken as a whole, bearing in mind all disputes made by LBSC and the Rule 6 party combined. Specifically, I find conflict with: SP Policy NSP74 in respect of CLT homes, design, heritage, tall buildings, and retention of retail; and LP Policies HC1, D1, D4 and D9, and SP Policies P13, P17, P20 and P21 and Area Vision AV.14 regarding harmful heritage and townscape impacts.

99. Although there would be some conflict with LP Policies NSP74, SD6 and E9, and SP Policies P32 and P35 I do not find that the appeal development would be deleterious to town centre vitality and viability, or to local business interests overall. Equally, the appellant’s underlying viability position is material. Accordingly, I find no harm from the reduced affordable housing provision as a result.

100. Consequently, linked to the appellant’s other contentions when applying paragraph 11 (d) of the Framework the policies which are most important for determining the application are not out-of-date. And in other respects, the site is already allocated for housing development.”

“103. Factoring significance evidence there would be less than substantial heritage asset harm to a range of relevant designated and non-designated heritage assets. I give great weight to the conservation of designated heritage assets. And substantial weight to the non-designated asset harm and overall townscape harm interlaced in the arguments made.

104. The collective public benefits on offer carry substantial overarching weight. They include: the delivery of the SP site allocation developed over a 10 year horizon with the aim of rejuvenating the area; more efficient use of previously developed land in a highly sustainable location; increased pedestrian permeability and connectivity; the facilitation of air quality improvements owing to greater reliance on sustainable modes of transport and with the promotion of cycling; increasing housing supply for Londoners as well as Peckham’s residents via 867 new homes, allowing for family provision as well as wheelchair accessibility needs; increasing much needed affordable housing provision (albeit at 12%); some urban greening betterment as well as ecological and notable BNG improvements; new external play space; plus the overall linked social and economic benefits from large scale town centre investment supporting its primary retail function and infrastructure which would provide and sustain employment in the process.

105. However, in this case such benefits do not outweigh the harm to the relevant designated heritage assets important to the area. Having regard to the Framework, there is no reason for me to conclude a design better responding to those heritage assets could not be achieved.”

“107. In undertaking the balancing exercise, I am cognisant there is a critical need to provide new homes of all tenures for Londoners urgently and at scale coordinated by SP allocation policies and the strategic policies of the LP. Moreover, there is acute affordable housing need in Peckham which some of the new home provision would alleviate. I accept that the totality of benefits would be considerable in this context.

108. Nonetheless, the direct benefits arising from the development comparative to harm to the RLPCA including designated and non-designated asset harm and to the townscape give me insufficient reasons to allow the appeal. From a Framework application perspective, the proposal would not be a sustainable form of development in light of such harms.

109. The circumstances of the case do not lead me to accept new housing and other associated betterments at all costs. Furthermore, SP Policy NSP74 entails a generational opportunity for Peckham which should be carefully managed to ensure a more optimally designed scheme for future generations.

110. For clarity, even with 35% affordable housing as initially proposed in the planning application process and accepting a worsening housing land supply position of less than 5 years purported by the appellant, I would still have found that the level of harm in this case would not be overridden.

111. Although the appeal scheme does have some positive design attributes and high order benefits, the elements of harm identified are not outweighed. There are no other material considerations for me to conclude otherwise.”

Camden Goods Yard:

[Also procedurally interesting given that it is another example of section 106 agreement renegotiation by the section 73 back door – see for more background my 1 March 2026 blog post And Another Thing….Another Misconception About Amending Section 106 Agreements]

“80. With regards the heritage balance, I have found a modest level of less than substantial harm to various heritage assets, to which I have afforded considerable importance and weight. The Framework requires any harm to designated heritage assets to be weighed against the public benefits of the proposal.

81. In this regard I have considered the economic, social and environmental benefits of the appeal scheme, the uppermost being the delivery of housing and affordable housing. While the quantum of housing and affordable housing is reduced from the earlier consented scheme, I am nonetheless satisfied that this public benefit in itself, which I afford great weight, does outweigh the harm to the heritage assets. As such the appeal scheme is not contrary to CLP Policy D2 and London Plan HC1 that seeks to protect designated heritage assets.

82. Turning to the overall planning balance, the appeal scheme would not provide the full quantum of affordable housing usually required by the Development Plan and would be at a lower level than that previously granted consent. 83. However, I am satisfied that the appellant has demonstrated, with regards the viability evidence submitted, that the appeal scheme makes appropriate provision for affordable housing and is therefore in accordance with the provisions of policy H4 of the Camden Local Plan and policy H5 of the London Plan and National Planning Guidance.

84. As such, in the context of an absence of a 5-year housing land supply and a continued high demand for affordable housing I afford the provision of housing and affordable housing, even at a reduced quantum, great weight.

85. Therefore, it is readily apparent that any adverse impacts of varying the conditions would not, by some considerable margin, significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole and other material considerations.

86. For the reasons given above I conclude that the appeal should succeed.”

Could any of you have accurately predicted ahead of these decisions what these outcomes would be? Is that uncertainty inevitable? Could national and/or local policy provide even more direction? Or indeed do parties sometimes need that lack of policy certainty given the inevitability that policies will never be wholly up to date and appropriate for all circumstances?

Whilst in my view it is encouraging that the draft revised NPPF will herald a simpler, more prescriptive, national policy approach (and encouraging indeed that ministers committed last week that the final version will be published by the summer – which I interpret to be by summer recess on 16 July), unless we are going to see some detailed calibration in policy as to, for instance, how specific levels of heritage harm are to be assessed against specific levels of housing undersupply (for which the present “tilted balance” has been, I would say, ultimately ineffective), those two aspects I referred to above are going to dampen down any hope of predictability.

And if the truth is that the decision-maker always has the whip-hand due to that black box within which subjective assessments and conclusions as to weighting of competing considerations can be reached, and that accordingly when we say decision-making is quasi-judicial that word “quasi” is doing some heavy lifting, it’s odd that the precise nature of the decision-maker in our system and whether they have any form of democratic mandate is ultimately random:

  • Most applications for planning permission: officers taking the decisions under delegated powers – applying section 38(6), presumably trying to arrive at a “correct” assessment of policy compliance, harms, benefits and arriving at an overall planning balance, presumably without “political” influence.
  • Other applications: elected councillors in planning committee – the same legal duty, so is it right that there be the room for politically-influenced judgment, particularly where there is an up-to-date local development plan and/or a clear and up to date national planning policy framework? Why is their decision “better” than that of trained officers?
  • Most appeals: decisions taken by civil servants, i.e. a single inspector, again applying section 38(6), presumably trying to arrive at a “correct” assessment of policy compliance, harms, benefits and arriving at an overall planning balance, without “political” influence. Again, why is their decision “better” than either that of local councillors or trained officers?
  •  Some recovered appeals, and applications which have been called-in: decisions taken by ministers in line with national “political” objectives, in practice with significant input from civil servants, at least on technical aspects and ensuring that the ministers’ decision, whatever it may be, is legally defensible. Again, why is the minster’s decision “better” than either that of the inspector who has made recommendations or indeed that of local councillors or trained officers?

If our development management system is intended to be predictable and indeed properly quasi-judicial, such that most applications can be determined by officers and such that call-ins and recovered appeals only happen in utterly exceptional cases, wouldn’t we need to move towards (1) even more calibration in policy and (2) a much stronger duty on councillors to have an up to date local development plan in place with well-evidenced policies?

Otherwise, on these sorts of decisions, on complex sites with often conflicting imperatives, isn’t the truth that we are unfairly leaving a huge amount of weight on the shoulders of officers and, even possibly even more unfairly, individual inspectors? I was interested to see from the list of inquiry documents that, after the close of the 1 Battersea Bridge Road inquiry, the appellant sought unsuccessfully to have the appeal recovered by the Secretary of State – presumably in the hope that he would reach a different conclusion as to the relative weight that various considerations carried than the direction in which the inspector may have been thought to be heading..

Simon Ricketts, 25 May 2026

Personal views, et cetera