I was left feeling that the nuances of how our wretchedly complicated, but still, at some level, functional system are lost in the political chatter. Of course, these sessions aren’t “debates” as such but in large measure a long succession of disjointed interventions and special pleading. Has anyone yet coined the term NIMC? There was certainly a lot of “not in my constituency” and very little discernible appreciation of the utter reliance of this country on private sector risk-taking and funding for most new homes (regardless of tenure) and employment-generating development. How can the development of 300,000 homes a year (confirmed by Michael Gove in Select Committee on 13 June 2022 still to be the target) be remotely possible in this political and fiscal climate? So many MPs assert the case for a lower target for their particular constituency: we know what underlies the clamour against centralisation of power (a theme we’ll come back to shortly). Development is held again and again to be the culprit for failing public services, lack of infrastructure, waiting lists at GPs’ surgeries and so on – ahem, it’s new development that ends up paying for much of this – existing residents should look rather at the ways in which the Government chooses to manage and fund the provision of health care and other services. And if the complaint is not that new residents are overwhelming local services (not true) it’s that developers are securing permissions and then choosing not to building them out (not true, although there are certainly unnecessary delays largely caused by the clunkiness of the planning system itself: you want to amend your development proposals to reflect the inevitable market changes or regulatory requirements since you first applied for planning permission years ago? Well that’s not going to be a simple process at all my friend). (Beauty as a way to securing greater acceptance of development? Despite the Government having alighted upon that particular agenda, driving the proposals around local design codes for instance, that issue seemed to receive little airtime).
The Bill entered Committee stage on 21 June 2022. The Public Bill Committee first heard evidence from various witnesses and then started line by line consideration of the Bill on 28 June 2022. They have not yet reached the planning provisions but the transcript of the discussion so far is here.
The Levelling-up, Housing and Communities Select Committee, chaired by Clive Betts MP, is holding a mini inquiry into the Bill. Michael Gove MP, Stuart Andrew MP and Simon Gallagher all gave evidence on 13 June 2022, which was slightly more illuminating. For instance, an exchange in relation to design codes from the session:
“Chair: Are we going to have the same level of consultation on the supplementary plans and design codes [as on the local plan]?
Simon Gallagher: Yes. One of the objectives of design codes is that they are locally popular, which is going to require a degree of engagement. Supplementary plans are created as one of the vehicles by which there would be opportunity for proper engagement, or legal force design codes. One of the problems with design codes at the moment is that they are often produced as supplementary planning guidance, which has no legal force.
One thing we have done in the Bill, subject to Parliament’s views, is to create something that is a legal device, a supplementary plan, which must be consulted on. Design codes must be provably popular and we are using the Office for Place to champion the best means of that community engagement.”
One of the themes that has dominated discussion of the Bill has been a concern that it could lead to a centralising of power, for instance by way of the requirement that decisions should be made in accordance with national development management policies (as well as local plans), unless material considerations “strongly” indicate otherwise – thereby putting this potentially amorphous concept of national development management policies (the extent of which is for the Government to determine and which can be added to or amended by the Government with as little prior consultation as it chooses) on the same level as statutory local plans.
“a) The Bill represents a significant change to the existing planning system. It undermines an important planning principle, the primacy of the development plan, by elevating national development management policies to the top of the planning hierarchy.
b) Unlike development plans, which are produced locally via a statutory process that involves considerable public participation, the Bill contains no obligation to allow the public to participate in the development of national development management policies.
c) The Bill also introduces two new development plan documents, spatial development strategies and supplementary plans. The Bill provides for very limited opportunities for public participation in the production of these documents.
d) The Bill introduces a new mechanism to allow the Secretary of State to grant planning permission for controversial developments, bypassing the planning system entirely. There is no right for the public to be consulted as part of this process.
e) Overall, in our view the Bill radically centralises planning decision-making and substantially erodes public participation in the planning system.”
Clive Betts pursued this theme with the witnesses on 13 June 2022:
“Chair: I am told that this is new in the way it is written into legislation. We have had very interesting legal advice from Paul Brown QC and Alex Shattock from Landmark Chambers, and it might be helpful if the Committee wrote to you with some of the questions that they have raised, which are pretty serious accusations of a centralisation that these measures are bringing about.
Michael Gove: Of course, I would be more than happy to explain the position and, indeed, any distance that these proposals place between themselves and the existing practice. I do not believe that they do significantly, but I am very happy to engage with the advice that the Committee has sought, and with others as well.
Simon Gallagher: Just to add to that, the Secretary of State referred a few minutes ago to the national planning policy framework prospectus that we were going to publish in July. We intend to set out in that how we can use these powers most effectively. That will give us the basis for proper engagement. I accept that, on the face of the Bill, it is a bit hard to read our intentions, so we need a little bit more detail and explanation out there, which will help.”
There was a further session on 20 June 2022, with evidence given by Victoria Hills RTPI), Hugh Ellis ((TCPA)and Chris Young QC.
Clive Betts’ has subsequently written to Michael Gove asking for his response by 4 July 2022 to a number of points in the “opinion” by Paul Brown QC and Alex Shattock (NB for what it’s worth, it’s not an opinion – barristers are careful in their use of language, it’s just a briefing note).
This month we can also expect to see the Government’s prospectus as to its intended approach to revising the NPPF as well as how it intends to draw up its national development management policies.
We are going to be running our own discussion on Clubhouse on the “who will have the power?” question, at 6 pm on 19 July. More details soon but do join here. Indeed, if you would like to speak do let me know – we would like a diverse range of voices and views.
I will also be speaking at the National Planning Forum event “The good, the bad and the beautiful – the Levelling Up and Regeneration Bill – a planning panacea?” on 5 July and hope to explore the issues a little further alongside an excellent panel of fellow speakers.
the right not to be punished for something that wasn’t against the law at the time (Article 7)
the right to respect for family and private life (Article 8)
freedom of thought, conscience and religion (Article 9)
freedom of expression (Article 10)
freedom of assembly (Article 11)
the right to marry and start a family (Article 12)
the right not to be discriminated against in respect of these rights (Article 14)
the right to protection of property (Protocol 1, Article 1)
the right to education (Protocol 1, Article 2)
the right to participate in free elections (Protocol 1, Article 3)
the abolition of the death penalty (Protocol 13)
This would be no coincidence. The UK was one of the founding members of the Council of Europe, which comprises 46 member states since the expulsion of Russia in March 2022. Whilst it includes all 27 EU member states it is of course entirely separate from the EU.
“The Council of Europe was founded after the Second World War to protect human rights and the rule of law, and to promote democracy. The Member States’ first task was to draw up a treaty to secure basic rights for anyone within their borders, including their own citizens and people of other nationalities.
Originally proposed by Winston Churchill and drafted mainly by British lawyers, the Convention was based on the United Nations’ Universal Declaration of Human Rights. It was signed in Rome in 1950 and came into force in 1953.”
Sad fact of human society: states and public bodies, on occasion, whether carelessly or on purpose, breach these fundamental rights. Of course when this happens there needs to be redress available, without disproportionate cost and delay. And let’s not kid ourselves via some weird form of British exceptionalism that UK institutions have ever been, are or will ever be flawless paragons of virtue.
“In its manifesto for the 1997 general election, the Labour Party pledged to incorporate the European Convention into domestic law. When the election resulted in a landslide Labour victory, the party, under the leadership of Tony Blair, fulfilled the pledge by the Parliament passing the Human Rights Act the following year.
The 1997 White Paper “Rights Brought Home” stated: “It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts – without this inordinate delay and cost.” [Wikipedia]
Back to that Equality and Human Rights Commission website:
“The Act has three main effects:
1. You can seek justice in a British court
It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. This means that if your human rights have been breached, you can take your case to a British court rather than having to seek justice from the European Court of Human Rights in Strasbourg, France.
2. Public bodies must respect your rights
It requires all public bodies (like courts, police, local authorities, hospitals and publicly funded schools) and other bodies carrying out public functions to respect and protect your human rights.
3. New laws are compatible with Convention rights
In practice it means that Parliament will nearly always make sure that new laws are compatible with the rights set out in the European Convention on Human Rights (although ultimately Parliament is sovereign and can pass laws which are incompatible). The courts will also, where possible, interpret laws in a way which is compatible with Convention rights.”
As at December 2019, “there have been 547 judgments concerning the UK up to the end of 2018. Of these, over half (315) found at least one violation of the European Convention on Human Rights, and about a quarter (141) found no violation.” (House of Commons Library publication UK cases at the European Court of Human Rights since 1975, 19 December 2019). Have a browse – the cases do not concern trivial matters, as is sometimes made out.
In our planning world, the rights that are most frequently relevant are:
The right to a fair trial (article 6), most particularly article 6.1 which is not limited to criminal trials but any determination by a state body as to an individual’s or organisation’s rights and obligations:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
I have emboldened the key elements of interest.
The right to respect for family and private life (Article 8)
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The right to protection of property (Protocol 1, Article 1), particularly relevant in the field of compulsory purchase:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Other rights of course are relevant in particular cases, for example the right not to be discriminated against (article 14) frequently arises in issues concerning gypsies and travellers.
Soon after the 1998 Act came into law, the House of Lords tested various aspects of our planning and compulsory purchase system as against Convention rights, in the Alconbury cases (9 May 2001), and the system was found to be compliant – as it was then at least (we must not be complacent as regards any changes).
The English courts have subsequently considered the relevance of the rights to particular planning situations in many cases but this has certainly not opened the floodgates.
“Where article 8 rights are in play in a planning control context, they are a material consideration. Any interference in such rights caused by the planning control decision has to be balanced with and against all other material considerations, the issue of justification for interference with article 8 rights effectively being dealt with by way of such a fair balance analysis.
That balancing exercise is one of planning judgment. Consequently, it may be amenable to more than one, perfectly lawful, result; and this court will only interfere if the decision is outside the legitimate range. Indeed, in any challenge, the court will give deference to the decision of the primary decision-maker, because he has been assigned the decision-making task by Parliament, and he will usually have particular expertise and experience in the relevant area. Such a decision-maker will be accorded a substantial margin of discretion. The deference and margin of discretion will be the greater if he has particular expertise and experience in the relevant area, and/or if he is acting in a quasi-judicial capacity (such as an inspector).
If the decision-maker has clearly engaged with the article 8 rights in play, and considered them with care, it is unlikely that the court will interfere with his conclusion. Article 8 rights are, of course, important: but it is not to be assumed that, in an area of social policy such as planning, they will often outweigh the importance of having coherent control over town and country planning, important not only in the public interest but also to protect the rights and freedoms of other individuals. In practice, cases in which this court will interfere are likely to be few.”
In R (Moore & Coates) v Secretary of State (Gilbart J, 21 January 2015) a claim based on article 6 succeeded. This was the challenge to the then Secretary of State’s policy to recover or call-in gypsy and traveller cases, causing huge delays in decision making.
“To anyone with experience of development control and planning inquiries, it is remarkable that cases involving a modest amount of evidence, and typically taking two days at most, could then require consideration for in excess of 6 months, let alone the 10 months that has elapsed in Mrs Coates’ case. I recognise that Mrs Moore’s case has involved some complexities, but there is no evidence at all that it was anything but atypical. But as Mr Watson’s evidence showed with clarity, it is the effect of the recovering of all cases which was expected to, and has, caused significant delays in determination. It was not the issues raised by any of the cases which caused the delays but the Ministerial decision to recover them all for determination. No evidence has been put forward by the SSCLG to show that the delays were necessary in travellers’ cases, and it must again be observed that although WMS 1 sought to stress the same substantive policy message for cases in the Green Belt relating both to travellers’ housing and “conventional” housing, yet appeals of the latter kind have not been delayed whereas appeals of the former kind have been delayed, and considerably so. The pitches concerned (and certainly so in the Claimants’ cases) contain their homes where they live, or wish to live, with their children. The SSCLG has failed to show that the delays caused to the determination of the appeals was a proportionate response to the issue of giving the policy “steer.” It follows that the appeals have not been determined within a reasonable time.”
Here, the ability to use article 6 was certainly a useful hook and the reference in article 6 to decisions needing to be made in a “reasonable time” is pretty much all we have to hang on when complaining about the inevitable delays that are one of the root causes of dissatisfaction in the planning system!
Although quite dated, the House of Commons Library research briefing Human Rights and Planning (21 June 2010) is a further useful resource.
My reflection would be that in our field the Human Rights Act has operated as was envisaged. Instead of the prolonged uncertainty to everyone caused by aggrieved parties deciding to continue their battles in Strasbourg, human rights issues have been dealt with by the Planning Court, and on appeal, as part and parcel of the challenge process. Even drawing upon the ECHR jurisprudence that is regarded by our Government with such suspicion, winning on a human rights point is not exactly easy.
But when it comes to public policy, the planning system is always a sideshow. Driven by political sensitivities in relation to areas such as extradition policy and prisons, the Government has of course been intent on reducing the influence of the Convention and the risk of judgments against it by the ECHR. Hence, its consultation document Human Rights Act Reform: A Modern Bill of Rights (14 December 2021):
“We make far-reaching proposals for reform, with a particular focus on those quintessentially UK rights, such as freedom of speech and the right to trial by jury. We examine problematic areas, including the challenges in deporting foreign national offenders. We consider in detail the procedural framework of the Human Rights Act. And we look at the relationship between the UK courts and Parliament and the European Court of Human Rights in Strasbourg.
We intend to revise and reform the flaws we have identified, and replace the Human Rights Act with a modern Bill of Rights, one which reinforces our freedoms under the rule of law, but also provides a clearer demarcation of the separation of powers between the courts and Parliament.
Our proposals recognise the diverse legal traditions across the UK, alongside our common heritage. We will be seeking the views of each of the devolved administrations, and across all four nations of the UK, to ensure we safeguard our human rights protections in accordance with a common framework, whilst reflecting our diversity and devolved competences.
We will carefully consider all the responses we receive, as the government takes forward the proposals in this consultation. The task of nurturing the UK’s tradition of liberty and rights is never finished. This consultation turns the first page of the next chapter in our long history of human rights – and begins the work to refine our law, curtail abuses of the system, restore public confidence, reinforce the independence of the judiciary, and shore up the sovereignty of elected law-makers in Parliament.”
The Government’s consultation response is fascinating. “Carefully consider”, my foot! The majority of respondents to each question raised favoured no change but such is the nature of consultation the Government has sailed on. (For instance 90% of respondents disagreed that a claimants should have to show a “significant disadvantage” to be able to bring a claim but the government has not backed down – in these circumstances what really is the point of consultation, or, more to the point, responding to consultation?).
“This country has a long and proud tradition of freedom which our Bill enhances, for example, in respect of free speech and recognition of the role of jury trial. Equally, over the years mission creep has resulted in human rights law being used for more and more purposes, with elastic interpretations that go way beyond anything that the architects of the Convention had in mind. Following careful consideration of the responses to the government’s consultation on the Bill of Rights, these reforms reinforce our tradition of liberty whilst curtailing the abuses of human rights, restoring some common sense to our justice system, and ensuring that our human rights framework meets the needs of the society it serves. As we make these reforms, we are clear that we are committed to remaining party to the European Convention on Human Rights (ECHR).“
For a summary of the Bill’s contents and actual implications, I urge you now at least to skim through Mark Elliott’s blog post The UK’s (new) Bill of Rights (22 June 2022). Here is an expert on the subject – Professor of Public Law and Chair of the Faculty of Law at the University of Cambridge and former Legal Adviser to the House of Lords Constitution Committee.
In summary he argues “that the Government’s strategy appears to involve making it more difficult for human rights to be enforced in UK law both by marginalising the domestic influence of the ECtHR and by limiting the capacity of domestic courts to uphold Convention rights. [He concludes] that these policy objectives form part of a wider picture according to which the present UK Government exhibits authoritarian tendencies that are in tension with British constitutional tradition.”
His conclusion is that this is “a Bill that seeks to diminish the domestic legal impact of the transnational human rights system of which the UK has chosen — and agreed in international law — to be a part, and which seeks at the same time to make significant inroads into the powers of domestic courts to uphold fundamental rights. All of this is infused with the notion of ‘taking back control’ from those — ‘foreign’ judges in particular, but also courts and lawyers more generally — who are viewed as an inconvenience at best, an illegitimate interference at worst. The Government claims to be doing this in the name of — and the Bill explicitly references — ‘parliamentary democracy’. But it is becoming abundantly clear that the true objective underpinning this Bill (and the Government’s wider project) concerns not the so-called restoration of parliamentary sovereignty or the strengthening of democracy, but the entrenchment of a form of executive hegemony — one that smacks of authoritarian resistance to scrutiny and is antithetical to the best traditions of the British constitution.”
The Bill starts with a curious “introduction” clause:
Of particular relevance to our subject area I would identify:
• Various attempts to constrain the role of the courts versus that of the Government or Parliament (starting with various passages in that clause 1, but see eg clause 7)
• Various attempts to warn the courts away from applying or expanding Strasbourg jurisprudence (eg see clause 2)
• Preventing UK courts from interpreting Convention rights so as to require a public authority to comply with a positive obligation (clause 5)
• Placing very high thresholds in the way of claimants seeking remedies in UK courts (a “victim” plus “significant disadvantage” test for standing – clauses 13 and 15 – that is tighter than the standing test in relation to judicial review)
What is this likely to mean in practice for our planning and compulsory purchase system?
• Human rights compliance cases are likely to be even more difficult to run in the UK courts, leading some litigants to resort to commencing claims in the European Court of Human Rights in Strasbourg (probably having first had to try – and fail – in the UK courts).
• In practice, weaker discipline over the behaviour of the Government and public bodies – this will be to the detriment of good governance.
• Generally, more uncertainty as to the appropriate tests for the UK courts to apply in human rights cases, as case law develops around the new tests, in some parts of the Bill expressed in curiously subjective or general language.
What this Bill most certainly does not do is give any individual or company more rights than at present; quite the contrary. If the 1998 Act brought the rights home, to use the language of the 1997 white paper, such that they could be relied upon in the UK courts, this Bill does the opposite – their utility in the UK courts is to be constrained, meaning that once again the ultimate backstop is a claim to the European Court of Human Rights in Strasbourg.
Whether constraining the role of the UK courts in relation to the protection of our human rights is a good thing or a bad thing might depend upon whether which side of the fence you are on – but remember: there isn’t one of us who may not need to rely on our rights as against the state at some point, whether in our personal or work lives.
And if we are going to have a Bill of Rights Act, shouldn’t we have a think about what further rights should now be included?
Topically, the application of the Convention (particularly article 1 of the first protocol – the right to protection of property) very much came into our clubhouse discussion on 15 June, Land value capture via CPO. You can listen again here.
There has been much consternation in some circles about DLUHC’s 6 June 2022 consultation paper Compulsory purchase – compensation reforms: consultation which, amongst other things, proposes introducing an amendment to the Levelling-up and Regeneration Bill so as to “to allow acquiring authorities to request a direction from the Secretary of State that, for a specific scheme, payments in respect of hope value may be capped at existing use value or an amount above existing use value where it can be shown that the public interest in doing so would be justified.”
Key passages from the consultation paper:
“29. An option for the framework of seeking a direction might be as follows:
a. Before a public sector acquiring authority:
a. makes a CPO; or
b. applies for other types of Order seeking compulsory purchase powers,
it may apply for a direction from the Secretary of State in relation to a specific scheme.
b. The direction sought may, in relation to the proposed scheme, have the effect of:
a. taking no account of AAD [appropriate alternative development] in a valuation; or
b. limiting the payment of any effect of AAD to no more than a specific percentage over the existing use value.
c. In seeking a direction from the Secretary of State, the authority would need to:
a. identify the scheme;
b. provide details of the estimated land value that would be captured as a result of issuing a direction for the scheme; and
c. evidence how that land value would be applied to the scheme for the public benefit and/or how certainty over the level of compensation payments in respect of prospective planning permission will benefit the scheme.
d. In considering an application for a direction then Secretary of State may appoint a person with requisite expertise to make a recommendation as to whether to issue a direction.
e. Any disputed compensation that relates to AAD would be settled by the Upper Tribunal (Lands Chamber) on the basis of the terms of the direction.”
“…we would welcome views as to whether the proposals set out should go further and look to cap or remove hope value generally or in relation to specific types of schemes. “
“Should the government decide, following consideration of the consultation responses, to take forward this proposal, our intention is for the power to make such directions to be introduced as an amendment to the Levelling-up and Regeneration Bill.”
Land owners, wherever their land is in England and Wales, may find that it can be compulsorily acquired at less than market value. And, on the subject of market value, what effect will that risk have on the value attributed to land in the first place (above existing use value)?
“The Government agrees that there is scope for central and local Government to claim a greater proportion of land value increases. The Government’s priority is delivery, in line with the Housing Minister’s commitments to provide more higher quality housing more quickly.
Changes to land value capture systems can have profound impacts on the land market in the short term, even where they are sensible for the longer term. Accordingly, the Government’s priority is to evolve the existing system of developer contributions to make them more transparent, efficient and accountable. It will of course continue to explore options for further reforms to better capture land value uplift, providing it can be assured that the short-run impact on land markets does not distract from delivering a better housing market.”
“To further incentivise councils to build, the Conservatives also intend to reform compulsory purchase rules to allow councils to buy brownfield land and pocket sites more cheaply. At the moment, councils must purchase land at “market value”, which includes the price with planning permission, irrespective of whether it has it or not. As a result, there has been a more than 100% increase in the price of land relative to GDP over the last 20 years and the price of land for housing has diverged considerably from agricultural land in the last fifty years. Between 1959 and 2017, agricultural land has doubled in value in real terms from £4,300 per acre to £8,900 per acre, while land for planning permission has increased by 1,200%, from £107,000 to just over £1,450,000. Local authorities therefore very rarely use their CPO powers for social housing, leaving derelict buildings in town centres, unused pocket sites and industrial sites remain undeveloped.”
The proposals have grown over time – this is no longer simply about brownfield land and “pocket sites”.
What do we think? Will this be a workable tool that might enable authorities to secure development with reduced land costs such that affordable housing and other essential social and physical infrastructure can be provided? Or a proposal that will give rise to more heat (litigation) than light and that interferes unacceptably with the rights of land owners as against the rights of society more generally?
There are so many angles to this: political, economic, commercial and legal. Which make this an ideal topic for our next clubhouse session: 5pm on Wednesday 15 June 2022. We will have an array of well-known commentators, including Rebecca Clutten QC, Caroline Daly, Raj Gupta, Colin Cottage, Henry Church and Richard Asher. Link here.
And if you missed our webinar last week “Will the Bill deliver more or less housing? Yes or no?” featuring Simon Gallagher (Department of Levelling Up, Housing and Communities), Zack Simons (Landmark Chambers), Kathryn Ventham (Barton Willmore now Stantec) Meeta Kaur and myself, there’s a youtube link here.
The Secretary of State has the power, pursuant to section 77 of the Town and Country Planning Act 1990, to call in any application for planning permission for his own determination.
This joker card can be applied at any time before the local planning authority issues the planning permission. There are no statutory constraints on use of the power.
The Government’s policy as to when the power will generally be used is as follows:
“The Secretary of State will, in general, only consider the use of his call-in powers if planning issues of more than local importance are involved. Such cases may include, for example, those which in his opinion:
– may conflict with national policies on important matters;
– may have significant long-term impact on economic growth and meeting housing needs across a wider area than a single local authority;
– could have significant effects beyond their immediate locality;
– give rise to substantial cross-boundary or national controversy;
– raise significant architectural and urban design issues; or
– may involve the interests of national security or of foreign Governments.
However, each case will continue to be considered on its individual merits.”
By virtue of a written ministerial statement from the former Secretary of State the late James Brokenshire (26 March 2019), the Government’s policy has now reverted (after the Paddington Cube case I referred to in my 5 October 2018 blog post A Promise Is A Promise) to a policy that it will not give any reasoning for its decision to call in or not to call in any application:
“I am concerned that to give reasons in either eventuality risks blurring this distinction and, as there is no duty in this respect, I will call in those applications where I conclude that such a decision needs to be taken by me and I will not call in applications where I conclude that the decision is best left with the local planning authority.
Therefore, so that my position is clear, I am announcing today that the policy set out in the statement of 12 December 2001 is hereby withdrawn and that, from today, I will not give reasons for calling in or declining to call in planning applications. The call-in policy set out in the statement of 26 October 2012 remains in place.”
Objectors to an application for planning permission will often seek to urge the Secretary of State to play the call-in joker card. It is a low-cost, potentially high-impact, step – to use another gaming analogy it’s a last roll of the dice. But if the process is not both closely circumscribed and as transparent as possible, it introduces yet further uncertainty (real political uncertainty – what are the factors about the application which in the current national short-term political climate may lead the Secretary of State to consider intervening? – and administrative uncertainty – how much longer is this going to take and who is talking behind closed doors to whom?).
When a request for call-in is received by the planning casework unit, it needs to decide whether to recommend to the Secretary of State that an application should be called in. In order to ensure that planning permission is not issued before a decision as to call-in has been made, a direction can be made under Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2015. There is no limit as to the duration of an Article 31 Direction. In the case of the now abandoned proposal by Leeds Bradford Airport for a new terminal, the Direction was in place for nine months until the Secretary of State eventually took the decision to call in the application. Nine months!
Many of us have had anecdotal experience over recent years of differing approaches being taken by the Planning Casework Unit in different situations – sometimes to issue an Article 31 Direction, sometimes to rely on informal assurances from the relevant local planning authority that it will not issue the planning permission until the Planning Casework Unit has had time to do its work and allow time for the Secretary of State to reach a decision. However, until the recent case of R (GOESA Limited) v Eastleigh Borough Council and Southampton International Airport Limited (Holgate J, 23 May 2022), there has been nothing in the public domain to explain what precisely has been going on.
GOESA is a campaign group formed of residents opposing the proposed expansion of Southampton Airport. Objectors had been seeking the call-in of the planning application. The Planning Casework Unit and Eastleigh Borough Council officers had exchanged emails whereby the Casework Unit sought assurances from the Council on an informal basis that permission would be delayed. When planning permission was then issued ahead of any final decision as to whether the application was to be called-in, GOESEA challenged the grant of planning permission on various grounds, the first of which was that this was in breach of a legitimate expectation that no permission would be issued until the Casework Unit’s work has been concluded. In the course of rejecting the claim on all grounds, Holgate J examined the correspondence and found on the facts that there had been no clear and unequivocal promise on the part of the local planning authority that could give rise to a legitimate expectation. However, this summary in the judgment of the Casework Unit’s internal processes is illuminating:
26. A third party may also ask the Secretary of State to consider exercising his power to call in an application. However, an informal request of that nature is not to be treated as a formal application which has to be determined by the Secretary of State. In Save Britain’s Heritage the Court of Appeal stated that a decision on whether or not to exercise the power under s.77 is not a substantive decision. It does not go to, or determine, the merits or demerits of a planning application. It does not affect the substantive rights of anybody. Instead, it is a procedural decision as to who should deal with the planning application, the LPA or the Secretary of State (). The Secretary of State is under no general common law duty to give reasons for a decision on whether or not to call in an application ( and  – ).
27. In the present case, the Secretary of State did not exercise his power to issue an article 31 direction preventing the grant of planning permission by EBC while he decided whether to call the matter in. Instead, he sought to enter into an agreement with EBC delaying the issuing of the LPA’s decision. This reflected an internal practice within the PCU and the Ministry.
28. The court was told that this internal practice has not been published. However, it was described in a witness statement by Mr. Simon Carpenter, a Senior Planning Manager in the PCU dated 11 September 2019, which was filed in Royal Borough of Kensington and Chelsea v Mayor of London (CO/3044/2019). Once a request is received from a third party, the PCU contacts the LPA to ascertain when it is likely to be determined. The PCU’s practice is to allow the LPA to decide whether to grant planning permission before considering the request for a call-in. “In order to safeguard the Secretary of State’s position an undertaking is sought from the case officer that the local authority will not issue the decision notice until the Secretary of State has decided whether call-in is warranted. If the case officer is unwilling or unable to provide this assurance, an article 31 holding Direction is placed on the application”.
29. On 9 December 2021 Lang J ordered the Secretary of State to file a witness statement in the current proceedings stating whether, and to what extent, the standard procedures for handling requests to call in planning applications during the period April to June 2021 were as described by Mr. Carpenter.
30. As a result, a witness statement by Mr. Andrew Lynch, Head of Planning Casework in the PCU was filed. He noted that where a request for a call-in is made after a LPA has resolved to grant permission, an article 31 direction might need to be issued very quickly. He confirmed that the standard procedures remained the same, save in one respect. At the time of Mr. Carpenter’s statement, a case officer had to seek authorisation from the Head of Planning Casework before issuing an article 31 direction. By the time the PCU was dealing with the request to call in SIAL’s application the procedure had changed, in that all proposals to issue an article 31 direction were reviewed by the Secretary of State’s private office or other Ministers. Either the private office or a Minister would decide whether an article 31 direction should be issued. Where possible, the private office would be given 72 hours in which to respond. In some cases where a swifter response was necessary, for example where a request for a call in was made at a late stage or the LPA had not given an undertaking, PCU officials would liaise directly with the private office.
31. The fact that an article 31 direction needed to be authorised by the Head of the PCU, or subsequently by the Secretary of State’s private office or a Minister, reflects the rarity of the use of the call-in power, as was acknowledged in Save.
32. In my judgment it undoubtedly follows from this analysis that it would be ultra vires for a LPA to give an irrevocable undertaking or promise that it will not issue a decision notice granting permission until the Secretary of State decides whether to call in the application, without any limit as to time. A public authority cannot enter into any undertaking or agreement incompatible with the due exercise of its duties (Birkdale District Electric Supply Company v Southport Corporation  AC 355, 364; De Smith’s Judicial Review (8th Ed), para. 9-022 et seq). An agreement by a LPA to defer issuing a decision for a short period which could be considered de minimis would be a different matter.
The judge went on to deprecate the Casework Unit’s practice of seeking informal assurances, in terms which I believe will inevitably lead to an immediate change to the Unit’s approach:
72. I would add for completeness that, although the claimant did not rely upon the general power of competence in s.1 of the Localism Act 2011, that provision could not overcome this incompatibility with the LPA’s duty to determine the application.
73. Planning legislation does provide a solution for a situation where the Secretary of State wishes to prevent a LPA from granting planning permission while he considers whether to call in the application. He has a broad power to issue an article 31 direction. It is a transparent and public procedure. The use of that simple procedure avoids the uncertainty which can arise, as in the present case, over the meaning and effect of exchanges of emails and letters, whether they give rise to any binding legitimate expectation and, if so, the nature of that expectation. It hardly seems desirable for the interests of an applicant, the LPA and potentially other public bodies and many members of the public, whether for or against the proposal, to be affected by such legal uncertainty. As the evidence from the Secretary of State shows, an article 31 direction can be issued rapidly where that is thought to be appropriate.
74. The claimant has not gone so far as to suggest that any undertaking or assurance given by EBC was irrevocable. It accepts that the authority could have terminated the undertaking by giving reasonable notice to the Secretary of State that it intended to issue a decision notice granting permission. But I very much doubt whether revocability would overcome the LPA’s lack of vires in the first place to enter into a promise to delay issuing the decision notice without any limit as to time. The legal position does not seem to me to be any different where a LPA gives an undertaking to the Secretary of State to delay issuing a decision notice which is simply silent on the issue of timescale.
75. In my judgment, it follows that the particular undertaking which the PCU asked EBC to give, and which the claimant says was given, was inconsistent with planning legislation, and in particular the LPA’s duty to determine the planning application before it, and so it would have been legally incapable of giving rise to a legitimate expectation. On this freestanding basis also, ground 1 must be rejected.
Surely we shall be seeing even more Article 31 Directions in future. But what is important is that this does not slow down our planning system even further or introduce even further political uncertainties or opportunities for legal challenge. I see no logical (as opposed to political) reason why the call-in power should not either be abolished in its entirety or clearly restricted by way of clearly defined criteria and thresholds. There, I’ve laid my cards on the table.
No Clubhouse event again this week, but there is the Town Legal/Landmark Chambers webinar at 5pm on 6 June 2022 that we have previously publicised: “Will the Bill deliver more or less housing? Yes or no?” Simon Gallagher (Department of Levelling Up, Housing and Communities) will join Zack Simons (Landmark Chambers), Kathryn Ventham (Barton Willmore now Stantec) and myself in a session chaired by Town Legal’s Meeta Kaur. We are now over-subscribed but I will circulate a link to the recording afterwards.
8.1 Part 4 of the Bill introduces a charge to be known as the “Infrastructure Levy” in England. In addition the Secretary of State is given the power to designate the HCA a charging authority for the purposes of the Infrastructure Levy.
8.2 The Community Infrastructure Levy (CIL) is abolished in England, other than Mayoral CIL which continues to exist in Greater London.
8.3 CIL continues to apply in Wales.
8.4 Schedule 11 of the Bill inserts new sections 204A to section 204Z1 into the Planning Act 2008 (“PA 2008”) giving the Secretary of State the power to make regulations (IL regulations) providing for the imposition in England of the Infrastructure levy. The regulation-making power creates the framework for an IL regime that looks is strikingly similar to CIL in some respects, but with some significant differences. Key features:
(a) Like CIL, LPA to be IL charging authority and IL regulations can so designate other councils and bodies as well;
(b) Like CIL, a person will be able to assume IL liability before development commences, and becomes liable when development commences;
(c) Like CIL, the IL regulations must make provision for liability when no-one has assumed liability;
(d) Like CIL, the IL regulations may make provision about matters such as partial liability, apportionment of liability, transfer of liability and exceptions from and reductions in liability;
(e) Like CIL, IL to be calculated when development “first permits development”, and IL becomes due on commencement [but Regulations may provide for it to be paid on account or in instalments];
(f) Like CIL, “development” is a defined term and IL regulations must define planning permission, define the time at which the planning permission is regarded as first permitting development;
(g) Like CIL, IR regulations must make a charitable exemption where the building is wholly or mainly used for charitable purposes, and may provide for charitable exemption in other circumstances;
(h) A charging authority must issue a charging schedule and in setting rates must have regard to the level of affordable housing funding from developers over a given period, the economic viability of development, the potential economic effects of including land value increase of certain matters, the amount of IL received from developments over a given period and the charging authority’s infrastructure delivery strategy;
(i) Unlike CIL, the IL regulations may allow for a much wider variety of approaches to rate-setting: differential rates for different uses or zones areas; nil or reduced rates; rates calculated not just by floorspace but by numbers of units, buildings, or by allocation of space within units or buildings, or in any other way;
(j) Unlike CIL, IL is to be charged as a proportion of property value (this has not yet been fully fleshed out);
(k) Like CIL, charging schedules must be subject to public examination procedures;
(l) IL to be applied in the same way as CIL, to fund the provision (etc) of infrastructure to support the development of the charging authority’s area. “Infrastructure” includes affordable housing (as the PA 2008 did before that reference was removed by the CIL Regulations), and the regulation-making power still includes power to amend the definition of infrastructure for IL purposes;
(m) Unlike CIL, there is an interesting “relationship with other powers” paragraph (para 204Z1), under which the IL regulations may include provision about how the following powers are to be used or are not to be used:
(i) Part 11 of the PA 2008 on CIL;
(ii) section 70 TCPA 1990 (planning permission);
(iii) section 106 TCPA 1990 (planning obligations); and
(iv) section 278 Highways Act 1980 (execution of works).
8.5 The Policy Paper explains further that it is the Government’s intention indeed to reduce the scale of s106 planning obligations so that s106 agreements will be used:
(1) on the largest sites in place of IL (provided that the value of the infrastructure being provided in that way is not less than that which would be achieved under IL); and
(2) on other sites where “narrowly focused” s106s will be used to provide onsite infrastructure.
8.6 The Policy paper also makes reference to removing the role of negotiations in delivering affordable housing, suggesting that the Government’s intention is that AH will be delivered through the IL.”
As set out in the policy paper, when providing for the detailed regime by way of Regulations, the Government will:
• Introduce a new ‘right to require’ to remove the role of negotiation in determining levels of onsite affordable housing. This rebalances the inequality between developers and local authorities by allowing local authorities to determine the portion of the levy they receive in-kind as onsite affordable homes.
• Consider how the Levy should be applied to registered provider-led schemes.
• Require developers to deliver infrastructure integral to the operation and physical design of a site – such as an internal play area or flood risk mitigation. Planning conditions and narrowly targeted section 106 agreements will be used to make sure this type of infrastructure is delivered.
• Detail the retained role for section 106 agreements to support delivery of the largest sites. In these instances, infrastructure will be able to be provided in-kind and negotiated, but with the guarantee that the value of what is agreed will be no less than will be paid through the Levy.
• Retain the neighbourhood share and administrative portion as currently occurs under the Community Infrastructure Levy.
• Introduce the Levy through a ‘test and learn’ approach. This means it will be rolled out nationally over several years, allowing for careful monitoring and evaluation, in order to design the most effective system possible.
By way of IL the Government is attempting to extend the Community Infrastructure Levy, massively, in three directions:
(a) to make local planning authorities responsible for the delivery of affordable housing, using funds raised by the levy – meaning that the monies raised from development will be at many multiples of current CIL rates.
(b) to charge the levy on the basis of gross development value rather than floorspace.
(c) to make introduction of the levy compulsory.
I have now read the relevant parts of the Bill (sections 113 to 115 and Schedule 11), explanatory notes and policy paper many times and I must confess that there is much that I still don’t understand or which is still a blur pending further detailed work.
“The process for negotiating developer contributions to affordable housing and infrastructure is complex, protracted and unclear: as a result, the outcomes can be uncertain, which further diminishes trust in the system and reduces the ability of local planning authorities to plan for and deliver necessary infrastructure.”
“Securing necessary infrastructure and affordable housing alongside new development is central to our vision for the planning system. We want to bring forward reforms to make sure that developer contributions are:
• responsive to local needs, to ensure a fairer contribution from developers for local communities so that the right infrastructure and affordable housing is delivered;
• transparent, so it is clear to existing and new residents what new infrastructure will accompany development;
• consistent and simplified, to remove unnecessary delay and support competition in the housebuilding industry;
• buoyant, so that when prices go up the benefits are shared fairly between developers and the local community, and when prices go down there is no need to re-negotiate agreements.” (paragraph 4.5)
Now that we see what is emerging, I do not believe that anyone is suggesting that IL will be simpler than CIL. Undeniably it will be more complex (and indeed in London we will need to grapple both with CIL and IL – the work is doubled).
But I am concerned that it will be less predictable as well. Why does predictability matter? The main inflexion points in a typical development are as follows:
1. the contract to acquire the property, pricing-in likely development costs, including CIL/IL
2. scheme formulation so as to arrive at a proposed quantum and mix of development which is likely to be financially viable whilst working within likely planning constraints
3. negotiation of section 106 agreement and conditions such that permission can be issued
4. securing development funding and potential pre-lets and land parcel sales
5. letting the construction contract
6. sale of completed development, whether individual plot/flat sales or investment disposal.
If a reliable estimate of IL liability is not available for stages 1 to 3 and a concluded figure, which can relied upon as a final outcome, is not available for stages 4 to 6, development becomes much more difficult. How do you price, allocate risk and enable each party to the development to decide whether they are prepared to press the button?
The current proposals seem very blurred so far as to how and when gross development value, and therefore the amount of IL payable having regard to any relevant local thresholds, will be determined.
In terms of “how”, will it be for each developer to submit its valuer’s estimate of GDV for the completed development (or relevant completed phase), presumably prior to commencement of development? Or will there be some independent assessment? Or will there be any standardised values (for instance for development below a defined scale or value)? It is difficult enough with CIL where the moving parts are floorspace levels for each use plus the application of reliefs and exemptions. To these moving parts will now be added the inherent subjectivity that comes with valuation (accentuated where you have a type of development without readily available comparables, or subject to unusual restrictions or constraints?) and then the application of so far undefined thresholds – building costs for the area have been mentioned, but what about, for instance, existing pre-development land values (and will these be sufficiently site-specific)? The number at stake will also be much larger than is currently the case with CIL. Each process is going to be strongly argued over as the outcome will directly impact the financial bottom line of the developer and, ultimately, project viability.
In terms of “when”, will we be able to go “nap” on a figure at commencement of development or is the figure to be revisited on development completion or sale? Will any procedures for review or appeal carry on after development has commenced or will commencement of development be the cut-off?
If the authority subsequently requires affordable housing to be provided in the scheme by way of the “right to require”, how does this get taken into account in the calculation of GDV?
At what stage will a developer have certainty that a scheme is regarded as sufficiently large or strategic for IL not to apply? Can he opt in or out? Will there be local thresholds (which would inevitably influence scheme size, depending whether IL was regarded as a more or less advantageous mechanism than simply relying on section 106)?
It seems that “in kind” section 106 or other types of agreements will be required but the actual quantum of IL attributable to the development will not be known for certain at the stage the section 106 agreement is completed.
Will an authority’s targeted quantum of affordable housing, both borough/district wide and for particular areas or sites, be set out in its local plan, or infrastructure delivery statement? And will developers in future be bringing forward development proposals without reference to any anticipated affordable housing element? The local messaging is going to be complicated.
How rigorously will IL charging schedules be examined? The underlying valuation work and the thresholds to be applied will be critical.
How can we make sure that IL proceeds are used in the right way and that more affordable housing is indeed delivered, as well as the infrastructure needed to enable particular development proposals to come forward without delay?
Will the system be robust and workable in appeal situations where the developer and authority may not necessarily see eye to eye?
It is going to be fascinating to work through these sorts of issues as the proposals take shape. At this stage, what protections do we want to see in the Bill itself to safeguard against the detailed regime subsequently not living up to the Government’s promises? The Government’s commitment to a “test and learn” approach to the introduction of IL is welcome but of course risks adding to complexity by creating a patchwork of different processes dependent on geography and/or when schemes come forward – and accepts that there are inevitably going to be mistakes and unanticipated outcomes along the way.
I wasn’t particularly planning to run a clubhouse session this Tuesday but if anyone would like to join a discussion on these sorts of issues, let’s re-think that. Let me know!
Finally, another plug for the Town Legal/Landmark Chambers webinar at 5 pm on Monday 6 June back on the theme of housing: “Will the Bill deliver more or less housing? Yes or no?” Simon Gallagher (Department of Levelling Up, Housing and Communities) will join Zack Simons (Landmark Chambers), Kathryn Ventham (Barton Willmore now Stantec) and myself in a session chaired by Town Legal’s Meeta Kaur. Join us here.
Will the Government’s proposed planning reforms help bring forward more logistics floorspace, for which there is an acknowledged and unmet need? We’ve been talking about the housing crisis (now apparently – wrongly – seen by Michael Gove as a “not enough home-owners” crisis) for so long now but what about the need for other land uses? Logistics (warehousing and distribution in old money) is a prime example. It has to be accommodated in the wider public interest – unless we are going to change radically our economy, life style expectations and the way in which we source much of our food and other products – but has locational constraints and the need is not necessarily “local”. How do we make sure that deliverable sites are allocated or can otherwise come forward?
Land-hungry as it can be, and sometimes competing for sites which might otherwise be released for residential development (meaning that clear policy guidance is particularly important), there are various reasons why more “big box” and “last mile” logistics space is needed. For instance:
⁃ the structural change in shopping patterns, with a huge move, accelerated by the pandemic, towards on-line retail.
⁃ the drive on the part of operators towards more efficient, better located and sustainable modern facilities – ideally rail-connected, certainly increasingly automated.
⁃ Post-B****t changes in delivery networks and the urgent need for more resilient supply chains, demonstrated by recent temporary product shortages
a) set out a clear economic vision and strategy which positively and proactively encourages sustainable economic growth, having regard to Local Industrial Strategies and other local policies for economic development and regeneration;
b) set criteria, or identify strategic sites, for local and inward investment to match the strategy and to meet anticipated needs over the plan period;
c) seek to address potential barriers to investment, such as inadequate infrastructure, services or housing, or a poor environment; and
d) be flexible enough to accommodate needs not anticipated in the plan, allow for new and flexible working practices (such as live-work accommodation), and to enable a rapid response to changes in economic circumstances.” (paragraph 82).
The Government’s planning practice guidance is more specific:
“How can authorities assess need and allocate space for logistics?
The logistics industry plays a critical role in enabling an efficient, sustainable and effective supply of goods for consumers and businesses, as well as contributing to local employment opportunities, and has distinct locational requirements that need to be considered in formulating planning policies (separately from those relating to general industrial land).
Strategic facilities serving national or regional markets are likely to require significant amounts of land, good access to strategic transport networks, sufficient power capacity and access to appropriately skilled local labour. Where a need for such facilities may exist, strategic policy-making authorities should collaborate with other authorities, infrastructure providers and other interests to identify the scale of need across the relevant market areas. This can be informed by:
• engagement with logistics developers and occupiers to understand the changing nature of requirements in terms of the type, size and location of facilities, including the impact of new and emerging technologies;
• analysis of market signals, including trends in take up and the availability of logistics land and floorspace across the relevant market geographies;
• analysis of economic forecasts to identify potential changes in demand and anticipated growth in sectors likely to occupy logistics facilities, or which require support from the sector; and
• engagement with Local Enterprise Partnerships and review of their plans and strategies, including economic priorities within Local Industrial Strategies.
• Strategic policy-making authorities will then need to consider the most appropriate locations for meeting these identified needs (whether through the expansion of existing sites or development of new ones).
• Authorities will also need to assess the extent to which land and policy support is required for other forms of logistics requirements, including the needs of SMEs and of ‘last mile’ facilities serving local markets. A range of up-to-date evidence may have to be considered in establishing the appropriate amount, type and location of provision, including market signals, anticipated changes in the local population and the housing stock as well as the local business base and infrastructure availability.
Paragraph: 031 Reference ID: 2a-031-20190722”
The reality is that very often local plans have not kept pace with the extent of need. I wrote about two decisions by the Secretary of State to allow appeals in relation to large logistics proposals in the green belt, in Bolton and Wigan in my 25 June 2021 blog post The Very Specials.
As somewhat of an advocacy document for the sector, the BPF industrial committee published in January 2022, in conjunction with Savills, Levelling Up – The Logic of Logistics, a “report demonstrating the wider economic, social and environmental benefits of the industrial & logistics sector”, going into detail with facts, figures and examples as to the extent of the current need and extent of historically supressed demand, the functions of logistics space in the economy, the nature of the jobs created, sustainability credentials and its potential “levelling up” role (was this indeed a factor in those Bolton and Wigan decisions?).
“■ Introducing a Presumption in Favour of Logistics Development … when precise criteria are met. This is needed as Local Plans can take years to be adopted and therefore are completely out of kilter with the pace of market changes;
■ Ensuring Local Plans allocate sites in the right locations to respond to a broad range of market needs;
■ Modernising Employment Land Reviews to allow for the utilisation of ‘real time’ information so that they can be kept up to date; and
■ Introducing an Employment Land Delivery Test to ensure that a commensurate amount of employment land is brought forward to counterbalance housing and that any employment land lost to other uses is delivered in the right locations. If a local planning authority failed to meet the delivery test, a presumption in favour of sustainable logistics development could be engaged.”
My 14 May 2022 blog post Does LURB Herald A More Zonal Approach to Planning After All? focused on housing issues but the risks are at least as great for logistics (and indeed industrial development more generally and of course often the boundary lines between light industrial, general industrial and logistics are increasingly blurred). With a planning system which is even more plan-led, where planning decisions are to be made in accordance with the development plan and national development management policies “unless material considerations strongly indicate otherwise”, and with the duty to co-operate with other local planning authorities abolished, logistics promoters will have to put all their faith in each local planning authority making the right choices, in an environment where this form of development, often necessarily on green field sites, can often be locally unpopular. Might national development management policies indeed point towards a criteria-based presumption on certain types of unallocated land? We just don’t know.
Of course, it may be that we start to see some large logistics schemes go by way of the Planning Act 2008 NSIPs route, requiring a direction first from the Secretary of State that the project is indeed to be considered a nationally significant infrastructure project. However, until such time as the procedure is reformed, it is an enormous undertaking in terms of process. The track record for business and commercial DCOs is not good: two sought, two withdrawn! The DCO application for the London Resort theme park in Kent was withdrawn on 29 March 2022 and on 13 April 2022 the Secretary of State withdrew (at the request of the promoter, so that the proposal could continue by way of a Town and Country Planning Act application for planning permission) the direction that he had previously made that phase 2 of the international advanced manufacturing park (IAMP) proposal in Sunderland be treated as an NSIP. Of course, the position for rail-connected logistics schemes which meet the tests in section 26 of the 2008 Act for a strategic rail freight interchange is more positive, with four DCOs made to date (Daventry, East Midlands Gateway, Northampton Gateway and West Midlands Interchange).
We will be discussing many of these issues on clubhouse at 6 pm on Tuesday 24 May, where we will be focusing on the BPF’s Levelling Up – the Logic of Logistics report and, in particular, the likely prognosis for industrial and logistics development under the planning reforms now announced. I’ll be joined by Gwyn Stubbings (GLP) and Ben Taylor (Newlands) from the BPF’s industrial committee, together with the BPF’s head of planning and development Sam Bensted. Join us here.
A little further ahead, please also consider registering for a Town Legal/Landmark Chambers webinar (yes a good old fashioned 2020-style webinar…) at 5 pm on Monday 6 June back on the theme of housing: “Will the Bill deliver more or less housing? Yes or no?” Simon Gallagher (Department of Levelling Up, Housing and Communities) will join Zack Simons (Landmark Chambers), Kathryn Ventham (Barton Willmore now Stantec) and myself in a session chaired by Town Legal’s Meeta Kaur. Join us here.
My Town Legal colleagues have put together a fantastic (I think) 17 page summary of the main planning and compulsory purchase provisions of the Bill. Thanks Safiyah Islam and the following contributors:
• Part 3, Chapter 1 – Planning Data – Aline Hyde
• Part 3, Chapter 2 – Development Plans – Emma McDonald
• Part 3, Chapter 3 – Heritage – Cobi Bonani
• Part 3, Chapter 4 – Grant and Implementation of Planning Permission – Lucy Morton
• Part 3, Chapter 5 – Enforcement of Planning Controls – Stephanie Bruce-Smith
• Part 3, Chapter 6 – Other Provision – Stephanie Bruce-Smith
• Part 4 – Infrastructure Levy – Clare Fielding
• Part 5 – Environmental Outcomes Reports – Safiyah Islam
• Part 6 – Development Corporations – Amy Carter
• Part 7 – Compulsory Purchase – Raj Gupta
* Relevant clauses in Part 2 (Local Democracy and Devolution), Part 8 (Letting by Local Authorities of Vacant High-Street Premises), Part 9 (Information About Interests and Dealings in Land) and Part 10 (Miscellaneous) – Victoria McKeegan
If you would like to receive further detailed updates from time to time please email firstname.lastname@example.org.
I held a Clubhouse session on 12 May 2022 where I discussed the changes and their possible implications alongside Catriona Riddell, Phil Briscoe, Nick Walkley and Meeta Kaur. It is available to listen to here.
For a deeper dive into the compulsory purchase elements, do join our next Clubhouse session at 6 pm on Tuesday 17 May 2022, where my colleagues Raj Gupta and Paul Arnett will be leading a discussion with special guests Charles Clarke (DLUHC, previous chair of the Compulsory Purchase Association), Henry Church (CBRE, and current chair of the Compulsory Purchase Association), Caroline Daly (Francis Taylor Building), Virginia Blackman (Avison Young) and Liz Neate (Deloitte). Some line up! Join here.
Raj and Paul have also started a blog, Compulsory Reading, focused on CPO issues. The first post is here and, guess what, this will be compulsory reading if your work touches at all on the intricate and changing world of compulsory purchase law.
Phew! So what was I getting at in the heading to this post? Surely any fule kno that there was once a government white paper in August 2020 that, amongst other things, proposed a more zonal approach to planning – with local plans throwing all areas into three hoppers: protected, restricted and growth – but that the political lesson learned was that this would be a vote loser and so the zonal approach was abandoned by incoming Secretary of State Michael Gove in the wake of the Chesham and Amersham by-election?
The idea of growth areas (where allocation would amount to automatic development consent) has certainly been abandoned, but the consequence of a number of the proposals in the Bill in my view leads us more towards a system where there is much less decision making flexibility in relation to individual planning applications and appeals. Instead, planning decisions will need to be made in accordance with the development plan and national development management policies “unless material considerations strongly indicate otherwise”.
So developers will need to make sure that:
⁃ development plans (local plans, neighbourhood plans) etc allocate the necessary land.
– the associated mandatory local design codes are workable
⁃ they can work within the constraints of whatever national development management policies the Government arrives at.
If development accords with these requirements, planning permission should be a doddle. If not, you plainly need to overcome a heavy presumption against. Our current flexible system (sometimes good, sometimes bad) will take a big lurch towards being rule-based or, dare I say it, zonal.
This may be a Good Thing or it may be a Bad Thing. Much depends on whether development plans, local design codes and national development management policies are properly tested for their realism. There will be even more focus on testing the soundness of local plans.
However, when it comes to local plan making, there are some major unresolved uncertainties:
⁃ First, what housing numbers do local authorities need to plan for? The Government still aspires to a 30 month local plan preparation to adoption timescale but that is only going to work if you have a largely “plug in and play” approach to the numbers, as was envisaged in the White Paper. What will happen to the standard methodology? We don’t get know. The Government’s policy paper says this:
“The changes in the Levelling Up and Regeneration Bill will require a new National Planning Policy Framework for England. The Government continues to listen to the representations of MPs, councillors and others on the effectiveness not only of the formula but the surrounding policies. Alongside Committee stage of the Bill, it intends to publish an NPPF prospectus setting out further thinking on the direction of such policies.”
What numbers are we planning for as a country? Are we still targeting 300,000 homes a year? The Government’s response to the Select Committee report on the planning white paper says this:
“The Government is determined to create a market that builds the homes this country needs. Our ambition is to deliver 300,000 homes per year on average and create a market that will sustain delivery at this level. There is compelling evidence that increasing the responsiveness of housing supply will help to achieve better outcomes. There seems to be consensus that 250,000 to 300,000 homes per annum should be supplied to deliver price and demand stability. For example, a 2014 joint KPMG and Shelter report highlighted that 250,000 homes per annum were needed to address price and demand pressures.”
⁃ Secondly, what will replace the duty to co-operate, which will be abolished? What will the new duty to assist really amount to? Can authorities adjoining urban areas with high unmet housing needs simply turn away from meeting those needs?
⁃ Thirdly, what if the allocations in the plan prove to be undeliverable or do not come forward? The safety net/potential stick of the five year housing land supply requirement (and presumably the tilted balance) in the case of up to date plans is to be abolished according to the policy paper:
“To incentivise plan production further and ensure that newly produced plans are not undermined, our intention is to remove the requirement for authorities to maintain a rolling five-year supply of deliverable land for housing, where their plan is up to date, i.e., adopted within the past five years. This will curb perceived ‘speculative development’ and ‘planning by appeal’, so long as plans are kept up to date. We will consult on changes to be made to the National Planning Policy Framework.”
Much is to be resolved here before we can begin to work out whether the proposals in the Bill will be an improvement on the present position.
Of course, the Government recognises that more work is needed. The following forthcoming consultation processes are identified:
“Technical consultations on the detail of the Infrastructure Levy and changes to compulsory purchase compensation.
• A consultation on the new system of Environmental Outcomes Reports which will ensure we take a user-centred approach to the development of the core elements of the new system, such as the framing of environmental outcomes as well as the detailed operation of the new system.
• A technical consultation on the quality standards that Nationally Significant Infrastructure Projects will be required to meet to be considered for fast-track consenting and associated regulatory and guidance changes to improve the performance of the NSIP regime.
• Proposals for changes to planning fees.
• Our vision for the new National Planning Policy Framework (NPPF), detailing what a new Framework could look like, and indicating, in broad terms, the types of National Development Management Policy that could accompany it. We will also use this document to set out our position on planning for housing, and seek views on this, as well as consulting on delivering the planning commitments set out in the British Energy Security Strategy.”
I hope this serves as some sort of introduction to the Bill and a taster as to some of the issues which will be occupying so many of us as the Bill passes through its Parliamentary stages. I don’t expect it to be on the statute book before early 2023, with a fair wind, and most of its provisions will not be in force until 2024 at the earliest. Final health warning: Bills change – we can expect plenty of amendments, omissions and additions over coming months.
Aside from my earlier plugs for our newsletters and the Planning Law Unplanned clubhouse sessions, I would also recommend two other blog posts: those of Nicola Gooch and Zack Simons . None of us has come up with a satisfactory LURB pun yet but I’m sure we all have our teams working on it.
Well done all local election candidates whether you won or lost.
And well done all public affairs consultancies for the updates and analysis as to the changes. But maybe add the Daily Express to your mailing lists next time?
We expect plenty of announcements this week, finally, as to the Government’s intended changes to the planning system.
I’m coiled like a rusty spring.
We’ll be navigating the implications of the Queen’s Speech and expected flotilla of accompanying announcements on Clubhouse at 5.30 pm on Thursday 12 May. Special guests include Catriona Riddell, Nick Walkley, Phil Briscoe and Meeta Kaur. Join us here.
M&S used to be the bellwether of the retail sector but its proposed demolition and redevelopment of its 456 – 472 Oxford Street store, in preference to refurbishment and extension, is as likely to be a bellwether of decision makers’ approach to carbon efficiency and in particular to justifying the loss of embodied carbon.
Siri, give me a definition of embodied carbon:
“Embodied carbon means all the CO2 emitted in producing materials. It’s estimated from the energy used to extract and transport raw materials as well as emissions from manufacturing processes.
The embodied carbon of a building can include all the emissions from the construction materials, the building process, all the fixtures and fittings inside as well as from deconstructing and disposing of it at the end of its lifetime.” (UCL engineering faculty).
Plainly, maximising the carbon efficiency of new development should be a significant material consideration in the determination of planning applications. But it’s not easy. How, for instance, to weigh longer term operational carbon savings against the one-off carbon costs associated with demolition and rebuild? And how much weight is to be given to carbon saving in the planning process as against other considerations?
You can look in vain for any specific guidance in the National Planning Policy Framework. The “planning for climate change” section (paragraphs 153 to 158) is of course woefully out of date, with an update promised mañana. Climate crisis what crisis?
Even so, the issue was raised by the Secretary of State when he dismissed the Tulip appeal (11th November 2021): “Although considerable efforts have been made to adopt all available sustainability techniques to make the construction and operation of the scheme as sustainable as possible” the result would still amount to “a scheme with very high embodied energy and an unsustainable whole life-cycle.” The Secretary of State also agreed with the Inspector: “that the extensive measures that would be taken to minimise carbon emissions during construction would not outweigh the highly unsustainable concept of using vast quantities of reinforced concrete for the foundations and lift shaft to transport visitors to as high a level as possible to enjoy a view.”
Notwithstanding the lack of national policy guidance, the London Plan does have a policy hook, Policy SI 2:
I want to scoot through the sequence of events so far in relation to the M&S proposal.
Its application for planning permission was submitted to Westminster City Council on 2 July 2021, proposing the demolition of the three buildings that comprise its 456 – 472 Oxford Street store, to make way for a comprehensive redevelopment to provide a building comprising two basement levels, ground and nine upper floors. The proposal would provide an office and retail led mixed use development. The oldest of the buildings, Orchard House, dates from the 1930s. Two comprise basement plus six storeys and one being basement plus seven storeys. Given the changing retail economy, the need for substantial changes to buildings such as this is of course no surprise. The scheme is by architects Philbrow & Partners.
Fred Philbrow stresses the lower lifetime carbon emissions that will arise from the new building, rather than a retrofit:
“It’s not always right to refurbish” old structures, Pilbrow told Dezeen, claiming that the contentious project is akin to trading in a gas guzzler for a Tesla.
“I would liken this to a discussion about a not-very-well-performing diesel car from the 1970s,” he said. “And what we’re trying to do is replace it with a Tesla.“
“In the short term, the diesel car has got less embodied carbon,” he added. “But very quickly, within between nine and 16 years, we will be ahead on carbon because our Tesla will perform better.” (Dezeen, 17 December 2021).
The application was resolved to be approved by Westminster City Council on 23 November 2021, despite last minute objections from Save Britain’s Heritage and others. The report says this on carbon:
“The applicant has submitted a Whole Life-Cycle Carbon Assessment (WLCA) prepared by Arup, as required by Policy SI2 of the London Plan and City Plan Policy 36.
The WLCA includes a comparative assessment of the whole life carbon emissions of a ‘light touch’ refurbishment versus new build development options. The report sets out that refurbishment option has the lowest embodied carbon impact initially because minimal works (and materials) are required. However, this increases over time due to the required maintenance and poor operational performance of the existing buildings.
The assessment concludes that the new build option is the most efficient scenario, especially through the implementation of the low-carbon opportunities recommended in the report. Whilst it has a higher initial embodied carbon than the refurbishment option as it needs to be built (with a high carbon expenditure) – over its operational lifetime it will require much less maintenance than the refurbishment option and be a more efficient building, providing a betterment from years 15/16.
The GLA in their stage 1 response requested the applicant to complete the GLA’s WLCA assessment template. This has been submitted to the GLA and an update on this position with regard to London Plan policy S12 will be reported verbally at the Committee meeting.”
The resolution was subject to referral to the Mayor of London and completion of a section 106 agreement, including an index linked carbon offset payment of £1,198,134 payable prior to the commencement of development.
On the same day as Westminster’s resolution to grant, Historic England turned down a request by objectors that the building be listed.
The Mayor confirmed on 7 March 2022 that he was not going to intervene. However, Save Britain’s Heritage complained that he had not taken into account representations that they had made, including a report they had commissioned from Simon Sturgis Why a Comprehensive Retrofit Is more Carbon Efficient than the Proposed New Build. Simon had previously advised the Mayor on his emerging carbon policies. [NB see Simon Sturgis’ subsequent comments on this blog post at the foot of the page]
Unusually, the Mayor then decided he was going to reconsider the issue:
“A spokesperson for the Mayor of London, said: ‘In line with London Plan policy on Whole Life Carbon, the question of retention and refurbishment or demolition and new build was considered in the GLA’s assessment of this application, and based on officer advice that there was no sound planning reason to intervene, on 7 March the Mayor made the decision to allow Westminster to determine the application.
‘However, City of Westminster is yet to issue its planning decision, and the GLA has now published its planning guidance on Whole Life Carbon and Circular Economy. In light of this situation GLA officers consider it would be prudent to consider a further Stage 2 report, which would also allow consideration of the detailed report by Simon Sturgis examining the carbon emissions impacts of the proposed demolition. An updated Stage 2 report will be presented for consideration at the Mayor’s meeting on Monday 4 April.’” (Architects Journal, 1 April 2022).
However, his decision on 4 April 2022 was the same – no intervention. The stage 2 report and addendum report are available here.
Given the assessment that the Mayor will have made as against his own policies, more up to date and stringent than those of the Government, it is perhaps disappointing for those who believe in devolved decision making then to read that Michael Gove has, presumably in response to further representations (see eg Save Britain’s Heritage’s letter dated 20 April 2022) issued a holding direction preventing Westminster City Council from issuing planning permission until he has decided whether to call it in. The holding direction, under Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2015, is only a precautionary procedural step to buy time and doesn’t at all mean that the Secretary of State is definitely going to call the application in, just that he is considering whether to do that. Indeed holding directions are not particularly unusual in relation to controversial proposals where the Secretary of State has received requests from objectors for him to use his call in powers. seeking call in. But frankly it’s anybody’s guess what will now happen.
The planning system is certainly curious in its inconsistencies. What about the “demolish and rebuild” permitted development rights for some categories of building, introduced in August 2020? Or that demolition of itself does not usually require formal planning permission?
⁃ climate change considerations should increasingly be central to planning decision making
⁃ but it’s no use the Government reacting in an ad hoc way to specific proposals – up to date, practical, guidance is needed to manage everyone’s expectations – a lengthy call in inquiry is in no-one’s interests
⁃ it shouldn’t be about the easy headlines and twitter pile-ons, but about robust detailed calculations.
⁃ watch how heritage campaign groups continue to accentuate the embodied carbon issue: embodied carbon vs operational savings via more efficient buildings is going to be a constant battleground.