Levelling Up Is…

I’m reminded of those interminable “love is…” cartoons.

Levelling Up is…

…regenerating high streets?

… tackling obesity?

…investing in culture?

…increasing numbers of police officers?

…funding roads?

…establishing freeports?

…local devolution?

et cetera.

Maybe it would be easier to define what it isn’t?

From the ITV website today (24 September 2021): 58% of Brits don’t know what ‘levelling up’ policy is while ministers also unclear, reports find.

See also these tweets today from the Daily Telegraph’s chief political correspondent Christopher Hope (thank you for alerting me, Mike Best):

Congratulations to the 42% in the ITV poll but for the rest of us this is all no surprise. The House of Commons BEIS Committee’s 22 July 2021 report Post-pandemic economic growth: Levelling up lays it bare:

From the introduction:

“On his appointment as Prime Minister in July 2019, Rt Hon Boris Johnson MP said in a speech, on the steps of Downing Street, that he would “answer the plea of the forgotten people and the left behind towns” and “level up across Britain” by unleashing the “the productive power not just of London and the South East but of every corner of England, Scotland, Wales and Northern Ireland””.

From the summary:

Levelling up—meaning, in our view, the spreading of economic and social opportunities more evenly across the country—is laudable and should be a priority for any Government.

However, whilst recognising the understandable impact the pandemic has had on Government capacity, we are disappointed at how little detail has been put forward to explain what the Government sees levelling up to mean and how it will be delivered.”

As such, we have made several recommendations to Government, including recommendations to:

Urgently publish the Levelling Up White Paper, so that we are clear on what the Government defines levelling up to mean and what its priorities are.

Work with the Office for National Statistics, the Cities and Local Growth Unit in the Business Energy and Industrial Strategy department and the National Audit Office to agree a set of metrics for the routine reporting of progress in delivering levelling up priorities.

Establish the functioning of a Cabinet Committee on levelling up, that collaborates with devolved, regional, and local leaders.

Recognise that inequalities exist across the whole of the UK, including within cities, and that levelling up priorities should therefore not be focussed on only some regions or sub-regions of the UK.

Ensure that each region in England has the capacity to competitively bid for Government funding, given that some areas in England have a greater capacity to engage with Whitehall than other areas.

The levelling up agenda has been described by the Government as its ‘most important mission’. It is now imperative for Ministers to translate this from a political promise into a deliverable programme for Government. The forthcoming Levelling Up White Paper, which we understand will now include the previously announced Devolution White Paper, gives the Government the opportunity to be bold and progressive. We look forward to its publication and, in future, engagement with Ministers on their delivery of levelling up.

From the main part of the report:

“Giles Wilkes, former industrial and economic special adviser to former Prime Minister Rt Hon Theresa May MP, noted that the Government’s use of the phrase levelling up was so widespread that it had become nothing more than a generic term for “make things better”. Rafael Behr of the Guardian referred to levelling up as a “rhetorical zeppelin”, which was “floating on the political horizon, carrying no cargo of policy”.

“The current available documents on the policy instruments the Government aims to use to level up—the Conservative Party Manifesto, its submission to this inquiry and the 2021 Queen’s Speech—show a wide ranging and disjointed programme of random policies from an obesity strategy, an increase in police officers, to funding on A roads and the creation of Freeports. Although these policies are all very interesting and welcome, it is difficult to see how they all tie together under one over-arching strategy. The cohesion of the whole has not been well described to identify how these fit together. If the Government is serious about levelling up and for it to be a substantive strategy rather than merely a slogan, it must spell out a coherent ‘plan’ as a matter of urgency”

Is this unfair? Possibly not. Motherhood is good and it’s clear from the Conservative 2019 manifesto that levelling up is good:

“Our plan means making sure people have access to world-class public services, that they feel safe on the streets, that working families get to keep more of their own money, and that we help with cost of living pressures.

But it also means making sure that we share prosperity across the country, addressing the longstanding economic challenges in parts of the country. We will invest responsibly and prudently in the infrastructure that can make a difference, and ensure communities in every corner of the United Kingdom are pleasant, safe and prosperous. And we will invest far more in helping workers train and retrain for the jobs and industries of the future. Investing in people, restoring the fabric of our towns and cities, building the homes we need, supporting science and industry, strengthening the great Union between the United Kingdom’s four nations – that is how we will unleash our country’s full potential.”

“…in his first months as Prime Minister, Boris Johnson has set out an agenda for levelling up every part of the UK – not just investing in our great towns and cities, as well as rural and coastal areas, but giving them far more control of how that investment is made. In the 21st century, we need to get away from the idea that ‘Whitehall knows best’ and that all growth must inevitably start in London. Because we as Conservatives believe you can and must trust people and communities to make the decisions that are right for them.

There is of course the £4.8 billion Levelling Up Fund, announced as part of the 2020 Spending Review. As set out in the March 2021 Levelling Up Fund Prospectus:

The Fund will focus on capital investment in local infrastructure thereby building on and consolidating prior programmes such as the Local Growth Fund and Towns Fund. It will have a visible, tangible impact on people and places, and support economic recovery. In doing so, it will also create opportunity across the country, prioritising bids that invest in regeneration and growth in places in need and areas of low productivity and connectivity.

The first round of the fund is focusing on smaller transport projects; regeneration and town centre investment, and cultural investment : £4 billion for England for the next four years to 2024-2025 and at least £800,000 for Scotland, Wales and Northern Ireland. Save in Northern Ireland, funding will be delivered via local authorities. The fund is jointly managed by HMT, DLUHC and DfT.

The prospectus was published alongside a list of local authorities by priority category. There is also a June 2021 prioritisation of places methodology note. The Good Law Project secured permission from Bourne J on 19 August 2021 to take to a full hearing its judicial review of the methodology, which is reported to be based on its allegations that (according to the news piece) “the Government is using the £4.8bn fund to funnel money into regions and towns of political benefit to the Conservative Party. The not-for-profit legal group alleges that the Government is guilty of ‘pork barrel politics’. They cite, for example, the fact that 22 of 26 places that received funds from the Towns Fund are represented by Conservative MPs.”

I won’t comment on that allegation but do note that there is an unusual bidding criterion for local authorities, which gives MPs an important role in the allocation of monies:

We expect bidding authorities to consult local Members of Parliament as part of their bid; though such support from local MPs is not a necessary condition for a successful bid. MPs can have a positive role in prioritising bids and helping broker local consensus. When considering the weighting given to bids, the expectation is that an MP will back one bid which they see as a priority, and any bid may have priority backing from multiple MPs and local stakeholders. But Members of Parliament may also want to support any or all schemes that would have a benefit to their constituencies in the usual way.

The levelling up agenda is currently a potent political theme for Conservative MPs, 40 of whom formed a “Levelling Up Taskforce” in September 2020, the launch of which was marked by the publication by Onward of a report by MP Neil O’Brien, Measuring up for levelling up.

Neil O’Brien was subsequently appointed in May 2021 by the prime minister as Levelling Up Adviser. The announcement was made within a 4 May 2021 government press statement which referred to a “landmark” levelling up white paper “later this year, articulating how bold new policy interventions will improve opportunity and boost livelihoods across the country as we recover from the pandemic.” “The White Paper – which will be led by the Prime Minister – will focus on challenges including improving living standards, growing the private sector and increasing and spreading opportunity.” This white paper of course will partly be a rebadged version of the white paper which was originally promised for publication last year on “devolution and local recovery”. As of the date of the press statement, a “new No10 – Cabinet Office Unit [was to] be set up to drive through work on the White Paper.”

I am not sure how much “driving through” has since taken place but Neil O’Brien of course has been now appointed as a minister within the new Department for Levelling Up, Housing and Communities. In the Government’s 19 September 2021 press statement announcing the name of the new Department (massively symbolic in itself) and make-up of its ministerial team it was stated that former Bank of England chief economist (and incoming chief executive of the RSA) Andy Haldane has been appointed as a permanent secretary in the Cabinet Office for six months to “head up the Levelling Up Taskforce that will report jointly to the Prime Minister and the Secretary of State for Levelling Up, Housing and Communities.

“The Prime Minister, Boris Johnson MP, said:

This government is committed to uniting and levelling up every part of the UK and I am determined that as we build back better from the pandemic we are geared up with the teams and expertise to deliver on that promise.

Andy is uniquely qualified to lead our efforts to raise living standards, spread opportunity, improve our public services and restore people’s sense of pride in their communities. I look forward to working with him, and with my new ministerial team, to deliver the opportunities this country needs.”

Andy Haldane is a serious individual and it is a significant appointment, if only for a short period of time – blink and it’s gone.

I’m sure I’m not the only person utterly frustrated that the main engine of government in our specialist area of interest is now named, for party political reasons, after such an amorphous concept. I’m still not clear as to what levelling up is (or, rather, what it isn’t) but I sense that for the Government it is at the very heart of its political agenda in a way that will define its priorities in terms of housing and economic growth (and therefore its thinking in relation to reform of the planning system). I’m sorry to reduce it to this because the aspirations are, as the BEIS Committee said, laudable but… is it about any less than “making things better” in such a general sense as to be meaningless, or about any more than focusing on issues are relevant to voters in marginal seats in such tactical ways as have no strategic coherence?

Insights very welcome.

Simon Ricketts, 24 September 2021

Personal views, et cetera

For our Planning Law Unplanned clubhouse event at 6pm on Tuesday 28 September, we are picking up on a comment made by DLUHC minister Eddie Hughes this week that there would be a “full review” of the NPPF. Our theme is NPPF “full review”: what to expect in reality/your dreams? and our special guests will include Steve Quartermain, Nicola Gooch and Mike Best as well as our usual stellar panel. Link to app here.

On Reshuffle Day, In Another Part Of The Forest

If a tree falls in a forest and no one is around to hear it, does it make a sound?

Maybe the biggest news this week wasn’t the replacement of Robert Jenrick by Michael Gove as Secretary of State for Housing, Communities and Local Government and the consequent likely pause of the still-paused-anyway planning law reforms.

Maybe it was the difficulties which the Government is having with its Environment Bill (original progenitor one M Gove). Aspirations of enactment by the time of November’s COP26 are surely fading fast in the light of a series of defeats for the Government at the report stage of the Bill in the House of Lords. On Monday (13 September 2021) it was already being reported in a Green Alliance blog post, on the back of a Daily Telegraph story, that the Government was reluctant to accept the amendments which had been passed which could ultimately lead to the Bill entering into a period of ping pong (less fun than it sounds) between the Lords and Commons.

The amendments at that stage were reported in this piece: Environment Bill: The 10 government defeats in the Lords (ENDS Report, 14 September 2021). They include:

– making interim targets for nature, air, water and waste legally binding;

– requiring the Government to make a formal declaration of a biodiversity and climate emergency;

– a more ambitious approach to targets in air pollution;

– making soil health a priority;

– removing exemptions for the Treasury and Ministry of Defence from taking into account environmental principles in policy making.

However, on the day of the reshuffle, 15 September 2021 the Lords continued its scrutiny of the Bill and inflicted a further four defeats by way of voting for amendments which in various ways seek to introduce greater environmental protections. Two of the issues are intertwined with matters to do with planning and development and I thought I would give them a bit of airtime – after all, these days can you be a planning lawyer without being an environmental lawyer? And surely DEFRA and MHCLG are going to have to work with each other in ever closer ways.

Habitats Regulations: limits on powers to amend

Baroness Young, chair of the Woodland Trust and former chief executive of the Environment Agency, moved an amendment to ensure “that powers to amend the Habitats Regulations may only be used for the purposes of environmental improvement following consultation. It ensures that the level of environmental protection that must be maintained includes protection for important habitats, sites and species as well as overall environmental protection

It was passed 201 to 186.

The amendment provides that the Secretary of State may only amend the regulations

for the purposes of—

(a) securing compliance with an international environmental obligation, or

(b) contributing to the favourable conservation status of species or habitats or the favourable condition of protected sites;

(c) if the regulations do not reduce the level of protection provided by the Habitats Regulations, including protection for protected species, habitats or sites; and

(i) following public consultation and consultation with—

(ii) the Office for Environmental Protection,

(iii) Natural England,

(iv) the Joint Nature Conservation Committee, and

(v) other relevant expert bodies.”

Duty to implement an enhanced protection standard for ancient woodland in England

Baroness Young moved an amendment “intended to address the more than 800 ancient woodlands in England that are currently threatened by development. As a large number of these threats result from indirect effects of development next to ancient woodland, these changes will improve the weight afforded to protecting these irreplaceable habitats in planning policy.”

It was passed 193 to 189.

The amendment introduces the following additional clause into the Bill:

(1) The Government must implement an enhanced protection standard for ancient woodland, hereafter referred to as the “ancient woodland standard” in England as set out in subsections (2), (3) and (4) and this must have immediate effect.

(2) The ancient woodland standard must set out the steps necessary to prevent further loss of ancient woodland in England.

(3) The ancient woodland standard commits the Government to adopting a Standard of protection which must be a requirement for all companies, persons or organisations involved in developments affecting ancient woodlands in England.

(4) This standard must be that—

(a) any development that causes direct loss to ancient woodland or ancient woodland and ancient and veteran trees must be refused unless there are wholly exceptional reasons and, in addition, a suitable compensation strategy must be in place prior to development commencing,

(b) any development adjacent to ancient woodland must incorporate a minimum 50-metre buffer to provide protection, reduce indirect damage and provide space for natural regeneration,

(c) any ancient or veteran trees must be retained within a development site, including a root protection area and appropriate buffer zone.

(5) This buffer zone must be whichever is greater of—

(a) an area which is a radius of 15 times the diameter of the tree with no cap, or

(b) 5 metres beyond the crown.”

The debate is here and Parliament’s summary of the House of Lords report stage is here.

(Incidentally, Ruth Keating (39 Essex Chambers) gave a very clear summary of the Environment Bill at today’s (virtual) Joint Planning Law Conference. Watch out for the paper in due course.)

As a further indication of how environmental matters are going to take centre stage in coming months, Duncan Field brought to my attention yesterday that Lord Frost made a statement to the House of Lords (16 September 2021) as to the Government’s approach in relation to various areas of retained EU law. A supporting paper, Brexit opportunities: regulatory reforms contains references which may be of interest to those in the planning and environmental areas:

Environmental Licencing [sic] and Permitting – Defra is continuing to rationalise the existing Environmental licensing and permitting (ELP) regimes so they are more streamlined and easier for businesses and users to navigate, whilst maintaining and even enhancing environmental protections.

Promote a flexible, market-based trading system for biodiversity offset credits – Biodiversity Net Gain (BNG) is a critical part of Defra’s strategy for enhancing the natural environment and promoting sustainable growth. Defra will shortly be publishing a consultation on our plans for implementing BNG. This consultation will include proposals for a market-based approach to delivery of biodiversity offset units.

That latter is interesting in the context of the biodiversity net gain provisions within the Environment Bill, which do not currently refer explicitly to any notion of a structured “market-based trading system for biodiversity offset credits”.

Keep your ears open is all I’m saying…

Simon Ricketts, 17 September 2021

Personal views, et cetera

And on the theme of ears, do join our clubhouse Planning Law Unplanned event at 6pm this Tuesday 21 September 2021, whether to listen or participate. We will be returning to the big news story and associated question – “ALL SYSTEMS GOVE! What to expect from our new Secretary of State?”. We have a planoply of leading commentators lined up to give their views including Catriona Riddell, Matthew Spry, Zack Simons, Wyn Evans and Nick Cuff as well as our usual planel. Link to app here.

Photograph by Michael Aleo courtesy of unsplash

Thanks to my colleague Stephanie Bruce-Smith for some background research. All errors mine.

Sad When Our Planning System Is Media Laughing Stock

It was hard not to laugh – and back in February 2021 laughs were in short supply. But that Handforth Parish Council viral video was also deeply depressing as a vignette of the planning system in action and hardly a recruitment drive for parish councils.

This has been another bad week for the planning system in the media.

“Your proposal is whack”

Your proposal is whack’: Chaos as ‘junior worker’ who thought he was testing dummy council website rejects and approves REAL planning applications – including allowing two pubs to be demolished – but they’re all legally BINDING (Daily Mail, 9 September 2021):

• “Staff at Swale Council, Kent accidentally rejected or approved five applications

Blunder was made by a ‘junior’ staff member at Mid Kent Planning Support team

The person was trying to resolve software issues, but in doing so, five ‘dummy’ decisions, used to test the website was working, were accidentally published

Among them included the rejection of an animal sanctuary to stay on its site

• Two Kent pubs were also given permission to be demolished or part-demolished

• A butcher’s change-of-use application in Sittingbourne was turned down

A farm was granted planning permission with 20 conditions, listed just as 1 – 20”

It’s certainly not very clever that anyone untrained was left unsupervised with access to the business end of the local planning authority’s IT system. This has obviously caused a big legal mess. Nicola Gooch sets out the law in her 10 September 2021 LinkedIn blog post.

Older lawyers can’t help thinking in Latin, unwelcome in the courts these days but handily concise:

Functus officio – the LPA has made its final decision (to issue the planning permission or refusal notice) and can’t re-open it.

• Administrative decisions are very rarely treated by the court as void ab initio (of no legal effect from the date they were purported to be made, even without a quashing order from the court), no matter how absurd – it takes a formal application to the court for judicial review to undo the mistake by quashing the decision, enabling it to be re-taken.

Accordingly, even with no arguments being made to the contrary by any interested parties, proceedings will need to be issued in the High Court on behalf of the council, a consent order agreed by the parties and then (usually after a wait of several weeks) rubber-stamped by the court – much money and much time wasted.

As Nicola identifies, this is by no means the first example of this sort of thing, although I do find it bewildering – was each decision not only generated by the system but then actually transmitted, without approval of a senior officer with the necessary delegated authority?There is surely a failing in the council’s internal system.

Local Government Lawyer reported in November 2020 as follows on the South Cambridgeshire examples she mentions:

“South Cambridgeshire District Council is to commence proceedings in the High Court after discovering two planning permission errors.

The local authority said one mistake had led to planning permission for an extension and annexe in Steeple Morden being issued in error. The permission was granted despite the application still being open for people to comment on.

“This planning decision, issued without the relevant authorisation, was caused by human error when the wrong box was ticked on the planning computer system,” it explained.

The second case saw a planning permission being issued without the accompanying conditions. It related to the landscaping, layout and other details around eight new homes in Great Abington.

Another mistake was the subject of a ruling by the Scottish Court of Session (Outer House) in Archid Architecture and Interior Design v Dundee City Council (20 August 2013). The Council had intended to refuse an application but instead granted planning permission but with reasons for refusal. It tried to get away with simply issuing a second notice, refusing permission. However, the applicant succeeded in obtaining a declaration from the court upholding the validity of the first notice. The court decided that a decision issued by a planning authority, however legally flawed, is to be treated as valid unless and until it is overturned in court proceedings.

When taken to extremes, this does start to look absurd. Whilst of course people should be able to rely on a planning permission or refusal notice that on the face of the document looks legitimate, the concept is strained when you have a refusal notice with the reason for refusal being “No mate, proper Whack” or, in another Swale example, a planning permission issued with the conditions: “(2) Incy (2) Wincy (3) Spider”. What if he or she had issued a planning permission for development in another district – in South Cambridgeshire, say – would that also be valid until quashed?

Any argument for the “voidable not void” approach on the basis that there needs to be certainty in the system (that a permission is valid until quashed, and that there is a short deadline for legal challenge after which the permission can be relied upon as valid) begins surely to lose some legitimacy when planning permissions are quashed after many years as happened in the Thornton Hotel case I mentioned in my 7 April 2018 blog post Fawlty Powers: When Is A Permission Safe From Judicial Review or this year’s Croyde Area Residents Association, R (On the Application Of) v North Devon District Council (Lieven J, 19 March 2021) where a 2014 planning permission was quashed that had mistakenly authorised development in relation to a wider area than had been intended.

“I hope Al Qaeda bombs the f…… ugly thing”

Chaotic scenes at planning meeting as anger erupts over new West Hampstead development (Camden New Journal, 9 September 2021). The video of two local objectors screaming vitriol at Camden’s Planning Committee last night makes uncomfortable viewing. If you want to understand what the scheme actually was, perhaps read the officer’s report (from page 191) in relation to the application and in particular the plans and images from page 235 to page 257. In my view it is an excellent scheme but that’s nothing really to do with it – there was no excuse for that reaction. We are all entitled to our own views but it is depressing that individuals feel driven to scream at their locally elected representatives like this. I do not use the often unfairly insulting and counter-productive “NIMBY” insult, but you can see why people do.

By this afternoon, the Secretary of State himself was tweeting about it:

And the planning system’s journal of record was of course also soon on the band wagon, ‘I hope Al-Qaeda bombs the f***** ugly thing!’: Moment two women yell abuse at Camden Council bosses for approving four new homes and turning area into a ‘s**t-hole’ before one hurls CHAIR during live-stream meeting (Daily Mail, 10 September 2021).

None of this is healthy.

Simon Ricketts, 10 September 2021

Personal views, et cetera

Thank you to everyone who attended our fantastic Clubhouse event last week with Graham Stallwood, Bridget Rosewell, Alice Lester and James Cross. It was a hard one to beat. This week’s will be a more informal session – do turn up if you would like to say hello – and maybe join some chat about what’s happening in the literally whacky world of planning. Link here.

This Is Not A Blog Post

Faithful reader, life’s hard enough and I’m giving you another week off from a proper blog post. However…

The High Court rulings and planning appeal decisions keep coming and it’s worth subscribing to the Town Library free weekly updates for those, including great summaries of every High Court ruling, prepared by my Town Legal colleagues.

I know I go on about clubhouse but do join one of our Planning Law Unplanned sessions if you can. I suppose that in tone it’s a cross between a live podcast (there’s no subsequent recording – miss it and it’s gone), a radio phone-in show and an after-work chat in the pub around a (large) table. Clubhouse recently upgraded their audio system to what they call spatial audio and if you listen now on earphones on an iphone or ipad you’ll notice that there is indeed the sense that you are in a room with the voices coming from different directions, as if around the table.

This Tuesday’s (7 September 2021, 6 to 7.15 pm) is genuinely unmissable: “Planning application/appeal timescales – tell us your tales”. It follows on from my last blog post, How Long Has This Been Going On and features the following special guests: Graham Stallwood (director of operations at The Planning Inspectorate), Bridget Rosewell (chair of the 2018 independent review into planning appeal inquiries), Alice Lester (director regeneration at Brent Council) & James Cross (strategic sites project planner, Arun District Council).

Timing is all, so they say. What are people’s current experiences of “the system”, good & bad?

In relation to appeals, PINS these days publishes excellent data but where are the pinchpoints that people experience in practice (without referring to specific cases)? Post lockdown, are we now on our way back to the improved timescales for appeal inquiries that were being achieved as a result of the Rosewell reforms? What about hearings and written reps appeals? How are we finding the move back from wholly screen-based events?

In relation to applications, what approaches by applicants and/or LPA can help avoid undue delays? How can we speed up negotiation of section 106 agreements? What is the role for pre-app discussions and early public engagement?

Please join us for a good-natured, positive but hopefully probing session. You are free just to listen or to participate in the discussion. Indeed we would love to hear your tales, of woe or joy! Link to app here.

Finally, clubhouse obviously is a platform for all sorts of discussions on all manner of topics. Nothing to do with work – any reference to planning or law, or indeed whatever work you do, is entirely banned – but tomorrow evening (Sunday 5 September, 8 pm) a few of us are hosting the third in an occasional series of events I’ve called Sound Recommendations, which is basically just chats about music, around a theme, as a result of which we put together a spotify playlist of what’s been mentioned (search for Sound Recommendations #1 and #2 on spotify). Tomorrow night’s theme is: “GIGS: first, best, last, next”. Do join us for that one too! Link here. (And if you’re only reading this after the event you’ll have to console yourself by searching for the Sound Recommendations #3 playlist).

Maybe next week I’ll get round to a proper post again….

Simon Ricketts, 4 September 2021

Personal views, et cetera

How Long Has This Been Going On?

Time is money. Time is unmet needs. Time is unrealised public benefits.

I just wanted to capture some of the current, frankly depressing, data that is out there on application and appeal timescales.

The purpose of this post is to underline that there is a significant problem to be addressed. What to do about it will be for another post – there is certainly much that can be done that does not require (1) legislation (2) additional resources or (3) any procedural shortcuts.

Applications

A piece from yesterday’s Planning daily online: Council signs off 2,380-home urban extension almost four years after committee approval (£). Four years is certainly going it some but I can confirm from constant first-hand experience how difficult it can be to move a project from resolution to grant to permission at any speed. The larger or more complex the project, the longer those negotiations over the section 106 agreement and associated aspects can end up taking.

My colleague Lida Nguyen has been looking at the position in London. She has looked at all applications for planning permission which were referred to the Mayor between 3 January and 11 December 2020, so applications of potential strategic importance as defined in the Mayor of London Order 2008 and, for those which were then approved by the relevant borough (without intervention by the Mayor or secretary of State), she has looked at the average time that the application took from validation to the borough’s resolution to approve and from the borough’s resolution to approve to permission being issued. Discarding a few anomalous cases, this left 88 to be analysed.

In my humble view the statistics are appalling, but not surprising:

Application submission to resolution to approve

Median: 228.5 days

Mean: 269 days

Resolution to approve to grant of permission

Median: 218.5 days

Mean: 259 days

It’s rather deflating for applicants and (when you stand back from the detail) surely absurd that resolution to grant in reality only marks the halfway point to a permission in relation to significant projects in London. Wouldn’t it be a start for boroughs, the Mayor and those acting for applicants to set a target of halving each of those figures and agreeing the necessary steps to achieve that reduction?

Appeals

My 25 May 2019 blog post Pace Making: Progress At PINS reported on Bridget Rosewell’s recommendation, adopted by the Planning Inspectorate, that inquiry appeals decided by an inspector (i.e. not recovered by the Secretary of State) should be decided within 24 weeks of receipt and that where the Secretary of State is to be the decision-maker, inspectors’ reports should be submitted to the Secretary of State within 30 weeks of receipt of the appeal. Initial progress was really impressive – until the first lockdown struck in March 2020. After a slow start (see my 2 May 2020 blog post There Is No E In Inquiry), PINS of course eventually, to the massive credit of all involved, embraced virtual hearings, inquiries and examinations and the risk of an impossible backlog was averted. However, it is clear from the latest Planning Inspectorate statistical update (19 August 2021) that there is still much work to do:

“The mean average time to make a decision, across all cases in the last 12 months (Aug 20 to Jul 21), was 27 weeks. The median time is 23 weeks.

The median time to decide a case decreased by 0.6 weeks between June and July 21, with the median being 21.4 weeks.

Median timeliness by procedure type is shown in the summary table below.

Performance since April 21 against the median measure has only varied by 0.7 weeks, between 21.4 weeks and 22.1 weeks. Performance had been improving between November 20 and March 21. For inquiries, in the last two months, cases have taken longer to decide as a result of very old enforcement inquiry cases being decided.

Enforcement decisions made in the last 12 months had a median decision time of 34 weeks. Looking at the annual totals, the median and mean time to decision for specialist decisions have been broadly the same as for enforcement decisions, and longer than the median for planning decisions. Since February 21 there has been a change in this trend, with Specialist cases being quicker than Enforcement.

The median time for planning appeals decided by inquiry under the Rosewell Process over the 12 months to July 21 is 35 weeks. This is quicker than other types of casework decided by inquiry.

Whilst the extent of statistical information provided these days is welcome, it is difficult sometimes to track the figures through the different tables so as to work out what the likely timescale outcome for a prospective appellant will turn out to be. I have also looked in vain within the statistics for any information as the time being taken between appeal receipt and validation – a traditional black hole when it comes to appeal timescales. I’m also struggling to see any breakdown as to what the “Rosewell” inquiries were (35 weeks average) as compared to inquiries overall (79 weeks!).

That overall 27 weeks average is deceptively encouraging for anyone looking at anything other than a written representations appeal. Because those appeals make up 95% of the total of course they massively skew the mean figure. But even then, although not reflected in these statistics, my own anecdotal impression is that validation of appeals which proceed by way of written representations or hearing is very slow indeed, raising a large question mark over the overall statistics. Possibly something to do with the focus on Rosewell inquiry appeal targets. Am I being unfair? What solid information on this is there out there? If there isn’t any, why not??

The Planning Inspectorate Annual Report and Accounts (July 2021) contains further statistical information, with tables such as these looking back at the changing position over the last five years:

In order to meet Rosewell targets, surely on that last table the 90th percentile needs to come down from 66 weeks to 24 weeks – and to be measured from receipt of appeal rather than validation?

Again, as with timescales for major applications in London, with appeal inquiries, surely we are looking at the need to more than halve current timescales?

All tables above have been taken from PINS documentation, for which thanks.

Simon Ricketts, 20 August 2021

Personal views, et cetera

Planning Law Unplanned is having a summer break this week, before returning at 6pm on Tuesday 31 August for somewhat of a BECG/DP9 special, London Elections 2022: Politics Meets Planning. Join the club here for notifications of this and future clubhouse Planning Law Unplanned events.

Photograph by Ben White on Unsplash

Westminster’s Bump In The Road: The Mound

Westminster City Council’s deputy leader Councillor Melvyn Caplan resigned yesterday (12 August 2021) over the summer fiasco of the temporary viewing platform that has been built next to Marble Arch, in the middle of the gyratory roundabout where Park Lane meets Oxford Street. From WCC’s press statement Westminster City Council update on Marble Arch Mound:

The Mound opened too early, and we have apologised for that. It has become clear that costs have risen more than anticipated and that is totally unacceptable. Our original forecast cost was £3.3m. Total costs are now £6m, covering every aspect of the project: construction, operation and eventual removal.”

All credit to Councillor Caplan for taking that honourable step. However, so many questions arise from this:

• On the one hand, is it right for one person to carry the can, but, on the other hand, why don’t we see more examples of leadership like this in local or national government when bigger things go wrong?

• Doesn’t the Council deserve at least some credit for being innovative, in the face of the challenges faced by Oxford Street and the west end? There’s surely nothing wrong with “off the wall” projects as a matter of principle as long as behind the scenes they are as de-risked as possible and it will be a shame if the crushing “computer says no” answer to every idea will now be “remember the mound”.

• When is it appropriate for a public authority to take on this sort of project and when should it de-risk via the private sector? Didn’t it in fact ring alarm bells that a private operator wasn’t prepared to speculate on the project, or weren’t they even given the opportunity?

• Did the computer generated imagery serve to oversell the initial experience?

This project did seem to get an exceptionally easy ride.

The application for planning permission was resolved to be approved on 30 March 2021 and planning permission issued later that day, with the application only having been submitted on 19 February (which was the first time, as far as I know, the project entered the public domain). So applications can be determined quickly (in less than six weeks) under the current system then, even for an eight storey high temporary structure on metropolitan open land next to a grade 1 listed building and with the lead-in to a committee meeting! We’ll all have some of that please.

From the report to Planning Applications Sub-Committee:

“The location of the structure is sensitive due to its setting adjacent to the Grade 1 Listed Marble Area [sic] and location on Metropolitan Open Land (MOL). However, the provision of a temporary visitor is aimed at attracting visitors back to the Oxford Street District by increasing footfall, and supporting economic recovery following the Covid -19 pandemic. This is a clear planning benefit which is considered to outweigh the less than substantial harm that would be caused to the designated heritage assets.

I don’t particularly quibble with the fact that planning permission was granted (and I note that it did have much business support – after all it really wasn’t in principle a bad idea), although it is interesting to see the light touch applied to the sustainability of the project in the officer’s report:

Sustainability:

“Relocation of trees, grass, wood and soil. The proposal is that elements used in the construction of the structure, namely wood, soil, grass, and trees will all find new uses in nearby gardens and parks. The submission refers to ‘a co-ordinated dismantling programme to enable the transplanting of the numerous plants and trees used in landscaping of the hill to other projects in and beyond the Oxford Street District for the benefit of its communities’.

The focus will be on greening school environments, community spaces, and housing amenity areas. The planting used on this project will meet the City Council’s priorities for health and wellbeing. It is envisaged that the project as a whole can then contribute to the development and illustration of the Council’s Green Infrastructure Strategy.

The Head of Arboricultural Services advises that there are limitations on suitable space available for such material and attempting to transplant living plant material is likely to result in a high mortality rate. Therefore, this is unlikely to be a practical proposition. In the circumstances whilst the intention to re-use as much of the structure as possible is welcomed and encouraged. Given potential practical difficulties highlighted it is not recommended that this is secured by condition.”

After planning permission was granted, the final go-ahead for the project was given by cabinet in May 2021.

This what was said about costs:

The current indicative construction costs for the mound are approximately £1.998m. These will be met from the £150m investment in Oxford Street District approved by Full Council in March 2019. Capital expenditure of c£522k will ensure a number of permanent legacy improvements are delivered across the district and this will be met from the approved Highways capital budgets. The potential for significant income generation has been further developed. This will be offset against operational and construction costs to reduce the overall net cost.

To these costs were to be added the costs of the operator contract.

Cabinet were informed as to the prospect of income in the order of £2m being generated by the attraction.

Given that entrance is now going to be free for the duration of August, sadly the figures currently look on the optimistic side.

Why wasn’t there more scrutiny of the budget? Was everyone just caught up in the moment and conscious of the narrow window for pressing the “go” button? After all, warning bell surely, the architects, MVRDV, had previously proposed a very similar scheme for the Serpentine Gallery in 2004, which was abandoned for financial and health and safety reasons (see MVRDV’s proposed 2004 Serpentine Gallery Pavilion was “a heroic failure” (Dezeen, 8 November 2015) ).

My final question was as to the computer generated imagery used to “sell” the project. It looks instagram-amazing – and with a project like this the detail was always going to make the difference between success and failure. It is always going to be about that initial opening day wow factor: wasn’t the real problem (as per the first part of that WCC press statement) just that it really wasn’t ready to be unveiled? Worse things have happened, but it’s obviously difficult when you make a false, and unusual, step in such a high profile location.

Picture courtesy Westminster City Council

Who knows, it might turn out largely as illustrated (just late, like everything) and after all (although perhaps a stretch in this instance), perhaps all publicity is indeed good publicity. I’ll pay a visit to see what all the fuss is about, with maybe a little retail therapy en route (which after all is what it’s all about). Overall it is obvious that mistakes have been made, but (1) (oldest of sayings) let who is without sin cast the first stone and (2) (newest of sayings) don’t you just hate to see a combined media and social media pile-on?

Simon Ricketts, 13 August 2021

Personal views, et cetera

Our Planning Law Unplanned clubhouse event this Tuesday 17 August (6 to 7.15 pm) should be fascinating: “An End To Ugly? The Office for Place & National Model Design Code unpacked”, with special guests Nicholas Boys-Smith, Chris Miele and Vicky Payne. Sign up to the app here.

Picture courtesy Westminster City Council

“We Can Take Some Of The Edges Off That Are Upsetting People”

A personal rant, with apologies. Did you see that quote in the Daily Mail about the long awaited Planning Bill?

“A Government source said ministers would be in ‘listening mode’ on the issue when Parliament returns in September, adding: ‘We’ll listen and we’ll move.

We can take some of the edges off that are upsetting people and still get some important changes through.

‘The bottom line is we have got to get more houses built. The average age of a first-time buyer is 34. We have to get that down and give younger people a chance to get a stake in society.’”

Listening to whom, do we think? Backbench Conservative MPs of course and voters in relevant constituencies of course. Anyone else? Shrugging shoulders emoji.

Does the Government really believe that it can make changes that materially accelerate the delivery of homes, without upsetting voters and therefore backbench Conservative MPs? (I’m only focusing on the Conservative party because it is in Government – Labour MPs are hardly falling over themselves either to support development in their constituencies, and as for the Liberal Democrats…). I see it all around me, the social norm/knee jerk reaction to a development proposal being to object and being to assume that everyone else will want to object too – whether green field development (it should be on a brown field site) or the development of a brown field site (oh not there, too high, setting, infrastructure etc etc). Of course it is hoped that exhortations as to design will make a difference in making development less unpopular, but, even travelling optimistically, that is going to take a long long time.

So what are the “edges” that are going to be taken off the white paper proposals?

It’s obvious isn’t it? No doubt the idea that national housing targets will actually, perish the thought, have to be planned for by each local authority on a local basis, let alone find their way through to consents and development, isn’t just out of the window, it’s jumped down onto the pavement and skipped half way down the street by now.

One leading rebel said: ‘If this ends up being a developers’ free-for-all, it will be utterly toxic for Tory MPs everywhere – not just in the South East.

‘If ministers get this wrong we can kiss goodbye to our new electoral success.

‘We will be doing the Lib Dems’ job for them across the Midlands, the South and the suburbs where we’ve had massive growth in recent years.

‘People are fed up. Being seen as the party concreting over our countryside or ramming housing estates into suburban green spaces will be electoral suicide. Boris needs to get a grip on this.’ Rebels want the idea of mandatory house-building targets replaced with voluntary ones.

They also want ministers to drop ‘growth zones’ in which planning applications would be automatically approved.”

Can we be clear: no-one I know in the development and planning world wants a fudged, bodged, old failed ideas re-branded, camel of a Planning Bill. Forget the whole thing rather than waste valuable time on a set of reforms based on political trade-offs and trying to be all things to all people. If as a politician you can’t focus on the objectives – climate change, providing everyone with a decent home, a functioning economy – because you’re just worrying about holding onto power and a job, forget it, don’t even start: with that frame of mind you will make things worse not better.

Without (1) a clear articulation of how many homes need to be built across the country, with a published evidence base to support that number (whether that’s 300,000 a year, or lower, or – probably – higher) and (2) those numbers somehow being divided out across the country without local opportunities for prolonged delays, obfuscation and special pleading (a year on from the white paper it is still really difficult to work out how this can be done), the system will continue to meander on its way – through the interminable plan making local politics, through the lengthy, unpredictable, too detailed and yet too light touch, examinations and through the inevitable court challenges.

The incoming coalition government in 2010 tore up top-down planning, in the form of the regional strategies, before the system even had time to prove itself. Yes it was an slow and over-engineered process, but there was at least the opportunity for democracy at the regional level in setting and apportioning numbers. The return to a bottom up approach, together with the let’s cross our fingers and rely on the duty (not really) to co-operate, and with a semi voluntary, almost unmappable, ad hoc patchwork of local authority combinations and alliances, has led to local plans being mired in endless debates as to numbers. Even with a supposedly standard method for calculating local housing need, those endless debates continue in every green belt local authority area – see Cherwell Development Watch Alliance v Cherwell District Council & Secretary of State (Thornton J, 30 July 2021) for the most recent example.

How are we going to get out of that mire, plan quickly and positively, stabilise spiralling house prices, reduce the age at which adult working offspring can leave the parental home to live somewhere convenient (let alone buy their own home – that’s a first world problem compared to the need for an affordable home in the first place), if local housing numbers are going to be left for local authorities and communities to determine?

Pray tell, “Government source”.

Simin Ricketts, 6 August 2021

Personal views, et cetera

Two great clubhouse Planning Law Unplanned events coming up:

⁃ 6pm Tuesday 10 August: Stonehenge road tunnel consent quashed: why, how, what next – discussion led by junior counsel to Save Stonehenge, Victoria Hutton. Link to invitation here.

⁃ 6pm Tuesday 17 August: AN END TO UGLY: The Office for Place & NMDC unpacked – special guests Nicholas Boys-Smith (chair, Office for Place), Dr Chris Miele (Montagu Evans) and Vicky Payne (URBED). Link to invitation here.

Stonehenge Road Tunnel Consent Quashed

This is a month in which we have seen the Government announce that it would be reviewing its National Networks (i.e. roads and rail) National Policy Statement to take account of net zero carbon commitments and in the meantime fend off a challenge to its current road investment strategy (RIS2): R (Transport Action Network Limited v Secretary of State for Transport (Holgate J, 26 July 2021).

This has also been a month in which we have seen UNESCO remove Liverpool from its world heritage list.

Now at the end of the month, another significant ruling from Holgate J in R (Save Stonehenge World Heritage Site Limited) v Secretary of State (Holgate J, 30 July 2021), concerning both the National Networks NPS and a world heritage site.

The court has quashed the decision of the Secretary of State (“SST”), against his examining authority’s recommendations, to “grant a development consent order (“DCO”) […] for the construction of a new route 13 km long for the A303 between Amesbury and Berwick Down which would replace the existing surface route. The new road would have a dual instead of a single carriageway and would run in a tunnel 3.3 km long through the Stonehenge part of the Stonehenge, Avebury and Associated Sites World Heritage Site (“WHS”)“. I had written about the SST’s decision to grant the DCO in my 14 November 2020 blog post, Minister Knows Best (It is interesting to look back – all three of the DCO decisions I mentioned in that post have now been quashed, the others being Norfolk Vanguard Windfarm (also by Holgate J, in R (Pearce) v Secretary of State for Business, Energy and Industrial Strategy (18 February 2021) and also in February 2021 the quashing by consent order of the Manston Airport DCO).

The SST’s decision to grant the A303 (Amesbury to Berwick Down) Development Consent Order 2020, to give it its formal title, was challenged on five grounds, some of those with sub-grounds. They were, in full:

Ground 1

(i) The SST failed to apply paragraph 5.124 of the NPSNN (see [43] above) to 11 non-designated heritage assets;

(ii) The SST failed to consider the effect of the proposal on 14 scheduled ancient monuments (i.e. designated heritage assets);

(iii) The SST failed to consider the effect of the proposal on the setting of the heritage assets, as opposed to its effect on the OUV of the WHS as a whole;

(iv) The SST’s judgment that the proposal would cause less than substantial harm improperly involved the application of a “blanket discount” to the harm caused to individual heritage assets.

Ground 2– lack of evidence to support disagreement with the Panel

The claimant submits that the SST disagreed with the Panel on the substantial harm issue without there being any proper evidential basis for doing so. Mr. Wolfe QC advances this ground by reference to the SST’s acceptance of the views of IP2 in DL 34, 43, 50 and 80. He submitted that IP2’s representations did not provide the SST with evidence to support his disagreement with the Panel on “substantial harm” in two respects. First, he said that HE only addressed the spatial aspect of the third main issue and did not address harm to individual assets or groups of assets. Second, he submitted that SST had misunderstood IP2’s position: it had never said that the harm would be less than substantial.”

Ground 3 – double-counting of heritage benefits

The claimant submits that the SST not only took into account the heritage benefits of the scheme as part of the overall balancing exercise required by para. 5.134 of the NPSNN, but also took those matters into account as tempering the level of heritage disbenefit. It is said that this was impermissible double-counting because those heritage benefits were placed in both scales of the same balance.”

Ground 4 – whether the proposal breached the World Heritage Convention

“The claimant contends that the SST’s acceptance that the scheme would cause harm, that is less than substantial harm, to the WHS involved a breach of articles 4 and 5 of the Convention and therefore the SST erred in law in concluding that s.104(4) of PA 2008 was not engaged. It was engaged and so, it is submitted, the presumption in s.104(3) should not have been applied in the decision letter.”

Ground 5

(i) The SST failed to take into account any conflict with Core Policies 58 and 59 of the Wiltshire Plan and with policy 1d of the WHS Management Plan;

(ii) The SST failed to take into account the effect of his conclusion that the proposal would cause less than substantial harm to heritage assets on the business case advanced for the scheme;

(iii) The SST failed to consider alternative schemes in accordance with the World Heritage Convention and common law.

The 39 Essex chambers press statement (this being a case well represented by barristers from that chambers: five of the seven appearing!) summarises the outcome as follows:

The claim was allowed on two grounds:

· Part of ground 1(iv): that the Minister did not receive a precis of, or any briefing on, heritage impacts where the Examining Authority agreed with Highways England but did not summarise in their report. He therefore could not form any conclusion upon those heritage assets, whether in agreement or disagreement;

· Ground 5(iii): The Examining Authority and the Minister limited their concluded consideration of alternatives to whether an options appraisal had been carried out and whether there was information on alternatives. However, they did not go on to consider the relative merits of the scheme and alternatives, in particular extending the proposed tunnel farther westwards. Mr Justice Holgate considered it was irrational not to have drawn conclusions in relation alternatives, particularly given that third parties had raised them and the Examining Authority had addressed the information about them in its Report. The Judge held that the circumstances were wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the Minister was required to assess and draw conclusions upon.

The Court rejected other grounds of challenge holding:

· There was no failure to consider whether certain archaeological sites were of national importance;

· The effects on certain individual scheduled monuments had been considered;

· The examining authority and the Minister had considered the effect on scheduled monuments and other heritage assets in addition to the World Heritage Site;

· The Minister had correctly understood Historic England’s advice;

· Discussing the recent Court of Appeal judgment in Bramshill the judge considered that in some cases a decision maker could consider the harm and benefits to a particular heritage asset before deciding whether there was net harm to it and that harm could be assessed for different purposes in different parts of guidance. In Stonehenge the court held that there had been no improper double counting or consideration;

· Articles 4 and 5 of the World Heritage Convention confers obligations on member states towards World Heritage Sites. The Court considered that the Convention does not impose an absolute requirement of protection, but that a balance can be drawn against harm and public benefits.

· The Minister had also lawfully considered the development plan, the World Heritage Site Management Plan and the business case.”

For those who may misunderstand the supervisory role of the courts, there was this warning from Holgate J:

“Plainly, this is a scheme about which strongly divergent opinions are held. It is therefore necessary to refer to what was said by the Divisional Court in R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2021] PTSR 553 at [6]:- “It is important to emphasise at the outset what this case is and is not about. Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the relevant procedures and legal principles governing the exercise of their decision-making functions. The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. The choices may be matters of legitimate public debate, but they are not matters for the court to determine. The Court is only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully.”

The present judgment can only decide whether the decision to grant the DCO was lawful or unlawful. It would therefore be wrong for the outcome of this judgment to be treated as either approving or disapproving the project. That is not the court’s function.

I thought it might be interesting to pick out some of the passages where Holgate J sets out his reasoning for finding the decision to have been unlawful:

Ground 1(iv)

“Here, the SST did receive a precis of the ES [environmental statement] and HIA [heritage impact assessment] in so far as the Panel addressed those documents in its report. But the SST did not receive a precis of, or any briefing on, the parts of those documents relating to impacts on heritage assets which the Panel accepted but did not summarise in its reports. This gap is not filled by relying upon the views of IP2 in the Examination because, understandably, they did not see it as being necessary for them to provide a precis of the work on heritage impacts in the ES and in the HIA. Mr Wolfe QC is therefore right to say that the SST did not take into account the appraisal in the ES and HIA of those additional assets, and therefore did not form any conclusion upon the impacts upon their significance, whether in agreement or disagreement.

In my judgment this involved a material error of law. The precise number of assets involved has not been given, but it is undoubtedly large. Mr Wolfe QC pointed to some significant matters. To take one example, IP1 assessed some of the impacts on assets and asset groupings not mentioned by the Panel as slight adverse and others as neutral or beneficial. We have no evidence as to what officials thought about those assessments. More pertinently, the decision letter drafted by officials (which was not materially different from the final document – see [67] above) was completely silent about those assessments. The draft decision letter did not say that they had been considered and were accepted, or otherwise. The court was not shown anything in the decision letter, or the briefing, which could be said to summarise such matters. In these circumstances, the SST was not given legally sufficient material to be able lawfully to carry out the “heritage” balancing exercise required by paragraph 5.134 of the NPSNN and the overall balancing exercise required by s.104 of the PA 2008. In those balancing exercises the SST was obliged to take into account the impacts on the significance of all designated heritage assets affected so that they were weighed, without, of course, having to give reasons which went through all of them one by one.”

Ground 5 (iii)

“The focus of the claimant’s oral submissions was that the defendant failed to consider the relative merits of two alternative schemes for addressing the harm resulting from the western cutting and portal, firstly, to cover approximately 800m of the cutting and secondly, to extend the bored tunnel so that the two portals are located outside the western boundary of the WHS.”

“The relevant circumstances of the present case are wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the SST was required to assess. It was irrational not to do so. This was not merely a relevant consideration which the SST could choose whether or not to take into account. I reach this conclusion for a number of reasons, the cumulative effect of which I judge to be overwhelming. “

Holgate J goes on to set out in detail nine reasons on which he relies (see paragraphs 278 to 288 of the judgment).

The Secretary of State has an uneasy summer ahead: whether or not he seeks permission to appeal, is this a scheme he is still wedded to, cheek by jowl with his transport decarbonisation plan and promised review of the National Networks NPS? Awkwardly, the prime minister had only recently referred to the project in his 15 July 2021 levelling up speech as “critical and overdue”.

Can you make a u-turn on a trunk road?

Simon Ricketts, 30 July 2021

Personal views, et cetera

We will be discussing the case on clubhouse on 10 August (link here), our regular Planning Law, Unplanned panellist Victoria Hutton having appeared for the successful claimant. However, this coming Tuesday, 3 August 2021, our topic will be ££ affordable workspace in section 106 agreements: Why? how? ££ led by my Town Legal colleague Lucy Morton and leading economist Ellie Evans (Volterra) plus other special guests. Join us! Link here.

Photograph courtesy of Highways England

Beauty & The Beach

Let’s see what more announcements the coming week brings…” was my sign off to last week’s ‘Twas The Week Before Recess blog post.

After this week your holiday reading now includes:

A new NPPF and national model design code

The revised NPPF was published on 20 July 2021, along with the new national model design code and MHCLG’s NPPF & national model design code: response to consultation document, and the announcement of the creation of the Office for Place and its impressive Advisory Board , chaired by Nicholas Boys Smith. There was a Policy Exchange launch event at which the Secretary of State spoke and of course a press statement.

My Town colleague Victoria McKeegan has written a piece for Estates Gazette on the changes, Government parades beauty in revised NPPF (23 July 2021, subscription only).


Here is a comparison of the text as against the February 2019 version and here is a comparison as against the January 2021 proposed changes that I wrote about in my 30 January 2021 blog post Beautiful Day.

Various of us, including Victoria, will be discussing the documents in detail at our clubhouse Planning Law Unplanned session from 6pm on Tuesday 27 July 2021. Do join us, either to listen or to make your views known. A link is here.

The Judicial Review and Courts Bill

The Bill was introduced to Parliament on 21 July 2021. We covered the Government’s March 2021 consultation document on judicial review reform in a recent clubhouse Planning Law Unplanned event, with guest speakers including Celina Colquhoun (39 Essex Street, member of the Lord Faulks Committee which had previously carried out its Independent Review of Administrative Law) and Joshua Rozenberg. The Bill appears not to be as radical as the consultation document, the main proposal of interest being the potential for suspended, or non-retrospective, quashing orders. For more information see Richard Harwood QC’s 22 July 2021 blog post The rise of Incrementalism or Joshua Rozenberg’s 22 July 2021 blog post Fettering the courts’ discretion. The Ministry of Justice’s response to consultation document was published alongside the Bill.

The House of Commons HCLG Committee report on permitted development rights

The Committee’s report was published on 22 July 2021.

I recommend reading the report itself. But some extracts from the summary:

“Whilst we understand the intention behind the recent changes, we have concerns about their impact, including on local planning authorities (LPAs) and the critical role they play in place-making. The ability of LPAs to control permitted development is limited to certain prescribed matters, principally those set out in the prior approval process. We support the use of prior approval and other conditions to control the quality of permitted development, but we heard the regime had become so complicated it was now little different from the full planning system. Furthermore, the Government has not explained how its approach to PDR fits with its proposed reforms in the planning White Paper. In particular, the recent changes appear to contradict the increased focus in the White Paper on plan-led development and local democratic involvement.

For these reasons, we recommend the Government pause any further extensions of permitted development rights for change of use to residential, including the new class MA right, which is due to take effect on 1 August, and conduct a review of their role within the wider planning system. As part of that review, we recommend it set out its long-term vision for permitted development for change of use to residential and explain how it plans to retain the benefits of these PDRs whilst not also sacrificing the ability of LPAs to shape their communities.

We broadly welcome the new use class E, as we can see the advantages of greater flexibility, but we are concerned it allows out-of-town premises, such as office blocks, to convert to retail without having first gone through the sequential test.”

As mentioned above, the revised permitted development regime kicks in on 1 August, further minor permitted development changes have been introduced in the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 (made 7 July 2021) and we still await judgment being handed down by the Court of Appeal in the Rights Community Action judicial review…

Happy summer reading and I hope you can join us on Tuesday evening.

Simon Ricketts, 23 July 2021

Personal views, et cetera

‘Twas The Week Before Recess

The House of Commons and House of Lords both rise on 22 July 2021 and are due to return on 6 September 2021, which means that each year this week and next we always see many documents published and announcements made. Much festivity.

This week last year the Planning White Paper was eagerly awaited of course but ran late, eventually being published in the first week of August. At one stage we had expected an update by the Government on progress by now, including its response to last year’s consultation process but Robert Jenrick announced back at the beginning of the month that we will not see this until the Autumn and there will be no Bill until some time after that. (For a summary of MHCLG’s current priorities, see his 6 July 2021 speech to the Local Government Association, or indeed Nicola Gooch’s 16 July 2021 blog post on the speech).

But there have already been various other announcements and publications and in this post I will just pick randomly from them, Quality Street style.

Of particular interest is the Department for Transport’s Transport Decarbonisation Plan (14 July 2021) which sets out the road map (no, wrong expression) for reducing transport’s greenhouse gas emissions to net zero. It is a turbo-charged (no, wrong expression), “high ambition”, plan covering all modes of transport. There is a wide-ranging series of commitments over 220 pages of text.

What is there that directly refers to the planning system? Aside from confirmation that the Government will be reviewing the National Networks National Policy Statement, there is a wider commitment to “embed transport decarbonisation principles in spatial planning and across transport policymaking“. Pages 156 to 160 address this in detail and I am going to no more than set out below large sections of this section:

…The planning system has an important role to play in encouraging development that promotes a shift towards sustainable transport networks and the achievement of net zero transport systems.

Traffic issues have often caused opposition to housebuilding. There is a legacy of developments that give people few alternatives to driving, are difficult to serve efficiently by public transport and are laid out in ways which discourage walking and cycling. Developments which are planned to minimise car use, promote sustainable transport choices, and are properly connected to existing public transport could help make new building more publicly acceptable.

The National Planning Policy Framework (NPPF) makes clear we already expect sustainable transport issues to be considered from the earliest stages of plan-making and development proposals, so that opportunities to promote cycling, walking and public transport are pursued. Planning policies should already provide for high quality cycling and walking networks and supporting facilities such as cycle parking (drawing on Local Cycling and Walking Infrastructure Plans). The NPPF also outlines that new developments should promote sustainable transport, taking opportunities to promote walking, cycling and public transport. However, while many local plans already say the right things, they are not always followed consistently in planning decisions. Developments often do little or nothing meaningful to enable cycling and walking, or to be properly and efficiently accessible by public transport. Sometimes they make cycling and walking provision worse. We can and must do better.

Last summer, the Government set out its vision for a new and improved planning system in the Planning for the Future White Paper, a vision to make good on the Government’s pledge to build back better, build back faster and build back greener. The White Paper set out how the planning system is central to our most important national challenges, including combating climate change and supporting sustainable growth.

A reformed planning system can assist in achieving the ambition of a zero emission transport future. The planning reforms will provide an opportunity to consider how sustainable transport is planned for and importantly how it is delivered to support sustainable growth and drive more sustainable use of our existing built environment e.g. planning for new development around existing transport hubs, for all developments to be easily and safely accessible and navigable by foot and cycle, and to make existing cycling and walking provision better. Through good design and proper consideration of the needs of our communities, we can better connect people, making communities more accessible, inclusive, safe, and attractive as well as promoting the principles of 20-minute neighbourhoods. We are working with the Ministry of Housing, Communities & Local Government and the Local Government Association to place cycling, walking and public transport provision at the heart of local plan making and decision taking for new developments. In doing so, we recognise the particular challenges faced by rural and remote areas in this regard, and will work, including through the upcoming Future of Transport: Rural Strategy, to ensure policies recognise differing geographies.

The National Model Design Code sets out a process for developing local design codes and guides, with supporting design guidance on movement and public spaces including streets. It outlines an expectation that development should consist of a well-connected network of streets with good public transport and an emphasis on active travel modes including walking and cycling. Building on this, we will also ensure that an updated Manual for Streets aligns with these principles and is routinely used for plan making and decision taking to secure better outcomes for our streets and public realm. These documents can play a key role in delivering high quality, accessible, secure and safe cycle storage. We will work with Active Travel England and other key stakeholders to ensure that the importance of securing high quality cycling and walking provision is embedded within the planning system.

We recognise that the Government has a role in helping Local Planning and Highways Authorities to better plan for sustainable transport and develop innovative policies to reduce car dependency. We need to move away from transport planning based on predicting future demand to provide capacity (‘predict and provide’) to planning that sets an outcome communities want to achieve and provides the transport solutions to deliver those outcomes (sometimes referred to as ‘vision and validate’). We will continue to work with MHCLG to identify how we can best support local authorities to develop innovative sustainable transport policies as part of the planning process, how this can be used to better assess planning applications, and better monitor local transport outcomes to deliver on our ambitions for sustainable transport use.

Achieving these ambitions will require a long-term collective effort across government, local authorities, communities, businesses, and developers. We are exploring with MHCLG how the planning system can be designed to facilitate better collaboration and planning for growth across local authority boundaries, with all key stakeholders involved, to ensure that we align that growth with both strategic and local infrastructure delivery to make good on our manifesto commitment to put infrastructure first and drive growth sustainably.”

The next day, 15 July 2021, we had the Prime Minister’s florid Levelling Up speech, although for actual announcements it might be better to go straight to, for example, a press statement issued the same day: PM sets out new ‘County Deals’ to devolve power to local communities in Levelling Up speech (15 July 2021).

“New ‘County Deals’ to take devolution beyond the largest cities, offering the rest of England the same powers metro mayors have gained over things like transport, skills and economic support.

County Deals will be bespoke to the needs of individual places, bringing decisions closer to people and places, potentially allowing more places to benefit from strong, high profile local champions. County Deals will give places the tools they need to pilot new ideas, create jobs, drive growth and improve public services.

Further detail will be set out in the Levelling Up White Paper, but as the Prime Minister set out, county deals will not be one size fits all, and government will take a flexible approach to allow more places to agree devolution.”

The same day there was also the press statement Government strategy to regenerate high streets (MHCLG, 15 July 2021), with various announcements, including the publication of Build Back BHS – apologies: Build Back Better High Streets. Compulsory purchase practitioners will be interested to see this passage:

“We are […] encouraging councils to use Compulsory Purchase Orders (CPOs) for long-term empty properties and where property owners are stalling regeneration plans. We want to:

• Ensure councils have the right Compulsory Purchase Order enabling powers to support the transformation of high streets and other regeneration projects so that they can acquire vacant and derelict buildings in order to attract new private investment.

• Ensure as part of our planning reforms that Compulsory Purchase Orders can support more effective land assembly to facilitate the development of growth areas identified in the new-style local plans, particularly when they support town centre regeneration.

Strengthen the capacity and support for local authorities to ensure they are able to use these new Compulsory Purchase Order powers and rights to support the transformation of high streets.”

As regards the conversion of high streets to homes, the following passage was eyebrow raising. So how would this work with the operation of permitted development rights then? And the provision of “green infrastructure” a justification for development intensification?

Where high streets are being repurposed for homes, green infrastructure and improved public space should be integral. We will explore how reforms to the planning system can ensure green infrastructure is better incorporated into new development. Development of homes, businesses and community space could be intensified on parts of sites to free up land for green infrastructure provision.”

And just to keep practitioners on their toes, there was the Planning Inspectorate’s announcement Plans to resume in-person events (15 July 2021). In one part of the policy forest there’s the transport decarbonisation plan, in another part, brmm brmm, off we go back to in person inquiries from 13 September:

“For hearings and inquiries taking place from 13 September we will be reverting to the pre-pandemic approach of them being arranged by local authorities. In-person events will be possible, but where participants (including the inspector) need to present their evidence or participate virtually this will need to be facilitated by the local authority.

Where in-person elements are planned, the local authority will need to be prepared for the event to be held fully virtually in case pandemic restrictions change.

Let’s see what more announcements the coming week brings…

Simon Ricketts, 16 July 2021

Personal views, et cetera

This week’s clubhouse Planning Law Unplanned session (6pm Tuesday 20 July) is on the theme “A Green Recovery”: what does it mean; what opportunities? Lucy Wood (Barton Willmore) will lead the session, which will take a good hard look at the government’s green policy agenda (including the transport decarbonisation plan) and what it means for business, councils and communities, alongside special guests including Neil Collar (Brodies) and others still to be confirmed. An invitation to the app and event is here.

(Public transport = tick).