Remain In Light

No talking heads today, despite it being the second anniversary of the publication of Planning for the future. We’re of course in stasis at least until the current round of talking (to the Conservative party membership) concludes and votes are cast. But then of course the party conferences will be hoving into view. And so it continues. (It goes without saying that the prospectus for an updated NPPF didn’t appear in July as promised). 

Instead I’m simply going to repost a piece which my colleagues Mary Cook and Aline Hyde wrote last week on the updated BRE guidance, Site layout planning for daylight and sunlight: a guide to good practice, published in June 2022. Given the role that the guidance plays in the planning system, it is odd (to say the least) that it is not freely available but it isn’t (save for the index, glossary and introduction). Instead the guidance can be purchased for, gulp, £75 from the BRE bookshop.

Mary and Aline, over to you:

“BRE have issued a “comprehensive revision of the 2011 edition of Site layout planning for daylight and sunlight”. Like its predecessor,this 2022 third edition “gives advice on site layout to achieve good sunlighting and daylighting both within buildings and in the open spaces between them”. Equally it is “purely advisory and the numerical target values within it may be varied to meet the needs of the development and its location.” 

Daylight

So what is new? Out go the average daylight factor (ADF) and No Skyline/Daylight Distribution Tests as recommended measures to assess the overall amount of daylight in a space. Those familiar with the old minimum values of 2% ADF for kitchens, 1.5% for living rooms and 1% for bedrooms must set this methodology aside since the third edition supersedes the second edition which “has been withdrawn”. All outstanding applications, environmental impact assessments & appeals which include daylight assessments will need to be re-assessed against the third Edition of BRE 209. 

Daylight is now to be checked using either of two methods set out in British Standard 17037: 2018 “Daylight in Buildings” (“BS EN 17037”). Appendix C to the BRE 209 guidance summarises the two methods, both of which are more complex than the old ADF method.

The first (“the illuminance method”) is based on target illuminances from daylight to be achieved over specified fractions of the reference plane (a plane at table top height covering the room) for at least half of the daylight hours in a typical year. This requires climatic data for the site location “at an at least hourly interval for a typical year” and is described as “detailed and calculation intensive”. The alternative method (“the daylight factor method”) is based on calculating the daylight factors achieved over specified fractions of the reference plane but we are told that “usually a detailed simulation model is still used”. The results have then to be tested against the new BRE recommended daylight targets. Appendix C explains that the guidance in BRE 209 is intended to be used with BS EN 17037 and its UK National Annex. BS EN 17037 gives three levels of recommendations for daylight spaces and its Annex A provides values for different room types. For compliance with the standard we are advised the minimum level should be used. BRE 209 warns against very high daylight levels, where summertime overheating (of which more later) can arise.

Under the heading “Presentation of Results”, paragraph C32 of BRE 209 advises that for each room the median illuminance or median daylight factor should be presented “as this enables a comparison with the different recommendations in BS EN 17037”. This sentence needs to be read in the wider context of both BS EN17037 and the UK National Annex. “For non-domestic interiors where daylight calculations are undertaken, the minimum illuminance or median daylight factor should also be presented” the reader is advised. Practitioners will be alive to the fact that development planning policies or supplementary planning documents refer to the BRE Guidance rather than to BS standards.  It is the advice in BRE 209 which is to be applied in such cases.

Specified default values are given to be used if none are measured or specified, and there are also maximum reflectances indicated for specific surfaces. Where specific surfaces finishes are used, appropriate factors for maintenance and furniture should be included. It is notable that the guidance is clear that the surfaces utilised in the assessment, as well as the maximum reflectances, need to be presented in the results. Where specific surfaces are relied upon either to achieve compliance or near compliance, it will be important to prove the characteristics of the material by reference to the manufacturer’s specification. Checking on the longevity of the product would also be useful. The wider the palette of materials with these characteristics, the more choice the developer will have at their disposal.

There will inevitably be pressure to impose planning conditions on planning permissions informed by such assessments to ensure that the surfaces relied upon to show compliance (or near compliance) with BRE 209 are used in the final development and thereafter maintained. It is unrealistic to think this can be avoided unless default values are used. The risk of planning conditions should be identified with the client up front. A decision needs to be taken to see if reliance on default values is preferable in order to avoid this risk. In high end bespoke developments with luxury space this could be a significant factor.

Sunlight

The Annual Probable Sunlight Hours (APSH) test has also been replaced for new buildings (the test is retained for assessing impacts on existing buildings). Sunlight amenity is now to be tested on March 21st when a habitable room, preferably a main living room, can receive a minimum of 1.5 hours of sunlight. This is to be assessed at the inside of the window. Sunlight received by different windows serving one room can be counted, but only if the sun lights the windows at different times. Where the positions of the windows are not known, availability of sunlight is to be assessed at points no more than 5m apart, and at a point of 1.6m above ground level. Though the minimum of 1.5 hours is given in the BS EN 18037, BRE 209 notes that a local planning authority may legitimately seek a different target value for hours of sunlight.

Further Tests for View, Sunlight Exposure & Glare are introduced.

Solar Panels

This third Edition of BRE 209 contains more guidance on the use of photovoltaics (“PVs”). The case of R (on the application of McLennan) v. Medway Council) [2019] EWHC 1738 established that the potential interference with solar panels is capable in law of amounting to a material planning consideration. In that case, the failure of an officer report to consider this impact led to the quashing of the permission.

Within BRE 209, the overshadowing or obstruction of PVs is noted as potentially capable of having a considerable negative impact on performance: where a proposed development of any type is near to an existing solar installation or building it is good practice to try to minimise any loss of solar radiation. Section 4.3 offers new more detailed guidance on this topic. 

Most development plan policies that reference the BRE Guidance do so in the context of daylight and sunlight and broad residential amenity considerations, rather than specifically in the context of energy consumption.  However, it has long been noted by decision makers that reductions in daylight can lead to increased energy consumption and the associated costs. In the context of Environmental Impact Assessment (EIA), there is no reason why existing solar panels are not capable of forming part of the wider “environment” which might be the subject of “likely significant effects”. Accordingly, where there are likely significant effects, they will need to be assessed. Scoping opinions and directions will need to consider if these effects should be scoped in or out in the same way as broader daylight & sunlight impacts.

Overheating

As in the previous edition, the risk of overheating is referenced and needs to be borne in mind. This is an area which is acquiring increased significance especially in the context of specialist accommodation for the elderly, where people can reasonably be expected to spend more time inside. The London Plan leads the way by including a policy directed to managing risks to the city from heat (Policy SI4), which highlights orientation and shading as key elements of the cooling hierarchy.

The Building Regulations 2010 Part O took effect on 15 June 2022 but applies only to new residential buildings. It does not apply to extensions added to residential buildings after they are built, nor does it apply to changes of use.  Developers will require designers to heed the Building Regulations since compliance is mandatory. The need to comply with the Building Regulations is a material consideration for the designer just as much as the decision maker determining an application. Securing a consent for a scheme being designed now which is then not deliverable without requiring alterations to comply with the Buildings Regulations is likely to be problematic and time consuming.  However, there may be a number of ways in which compliance can be achieved. If the need to comply with the Building Regulations resulted in a design that gave rise to identified planning harms, it should not be assumed that the permission would be granted in all cases. This would be a fact specific judgement weighing competing planning considerations in the overall planning balance.”  

Thank you Mary and Aline!

(This is intended as an overview by planning lawyers who are not rights of light surveyors rather than to be relied upon as advice. Please contact Mary or Aline if you have a legal question and for detailed advice on the practical application of the guidance, do approach a rights of light surveyor). 

Simon Ricketts, 6 August 2022

Personal views, et cetera

EZ Does It: Charter Cities, Freeports, Development Corporations

My name is EZymandias, King of Kings;

Look on my Works, ye Mighty, and despair!

Nothing beside remains. Round the decay

Of that colossal Wreck, boundless and bare

The lone and level sands stretch far away

Nothing is new. Least of all the idea that economic activity may be generated by way of a state identifying a zone, whether in its borders or elsewhere, within which more advantageous rules apply for those doing business, for instance in terms of customs, taxes and constraints over development, and within which zone the state gives an organisation (which may be in part or wholly privately owned) a degree of regulatory autonomy.

The idea is topical. I referred in my 16 July 2022 blog post Neutrality to the “charter cities” idea that has been gaining traction in right wing circles and to Liz Truss’ espousal of “low planning zones: new investment zones around key parts of the United Kingdom with much clearer planning rules so people can get on with building straight away to generate those jobs and opportunities.”

To start to get to the root and very starting point of the charter cities concept, last night I watched Nobel Prize laureate and former Chief Economist of the World Bank Paul Romer’s 2009 Ted Talk, Why the world needs charter cities and I read his related paper, Technologies, Rules, and Progress: The Case for Charter Cities (Paul Romer, March 2010). Romer was one of Rishi Sunak’s professors at Stanford University. Sunak has described him as “brilliant and inspiring” .

If you look at what Romer is saying – or dip into the Charter Cities Institute’s website https://chartercitiesinstitute.org/ (the cheer-leading group for the concept) – it could be said to be rather simplistic (not to say colonial), pointing for instance to the success first of Hong Kong and then of the special economic zones established by China along its coastline, and suggesting that an equivalent model could allow first world countries to establish charter cities within developing countries, to mutual benefit and to the benefit of the population of the host country, who would have the “choice” as to whether to move to and subject themselves to the more economically-efficient (my summary) rules of the charter city. 

Of course the usual questions arise: to what extent does such an arrangement impoverish or strip resources from those outside the charter city? How are human rights protected? How is the host country to ensure a fair deal is struck, given the likely inequality of bargaining positions? What of the right to self-determination for those in the area? In the fight against climate change, will this help, or hinder?

Madagascar and Honduras have indeed both explored but not implemented the idea. You may also recall a couple of years ago the media coverage around apparent discussions “between property developer Ivan Ko and the government of Ireland, with the former proposing the construction of a safe haven in the form of a semi-autonomous city in Ireland—one which would allow for the emigration of thousands of Hong Kong residents” (Charter cities: can they solve the world’s problems? (Thomson Reuters, 31 July 2020)).

The charter city label could equally be applied to the proposal/dream/nightmare that was the subject of this 27 July 2022 Guardian piece, Saudi Arabia plans 100-mile-long mirrored skyscraper megacity or indeed to the now abandoned Toronto “smart city” project promoted by Sidewalk Laboratories (part of the Alphabet group which also owns Google) – see Sidewalk Labs folds back into Google. Have “smart cities” had their day? (Verdict, 17 December 2021). Some fundamental issues swirling around those two projects alone for sure, about democracy, sustainability, data privacy and sheer Ozymandian folly. 

Of course it’s not much of a step down from charter cities to freeports – it is all down to the detail of the regulatory arrangements and legal protections, as well as a question of scale. 

Again topically, on 29 July 2022 DLUHC updated its guidance on Freeports although with no new substantive changes of note that I could see anyway. 

From the guidance:

Freeports are special areas within the UK’s borders where different economic regulations apply. Freeports in England are centred around one or more air, rail, or seaport, but can extend up to 45km beyond the port(s).

Our Freeports model will include a comprehensive package of measures, comprising tax reliefs, customs, business rates retention, planning, regeneration, innovation and trade and investment support.

Eligible businesses in Freeports will enjoy a range of tax incentives, such as enhanced capital allowances, relief from stamp duty and employer national insurance contributions for additional employees. These tax reliefs are designed to encourage the maximum number of businesses to open, expand and invest in our Freeports which in turn will boost employment.

Freeports will benefit from a range of customs measures, allowing imports to enter the Freeport custom sites with simplified customs documentation and delay paying tariffs. This means that businesses operating inside designated areas in and around the port may manufacture goods using these imports, before exporting them again without paying the tariff.

Freeports will provide a supportive planning environment for the development of tax and customs sites through locally led measures such as Local Development Orders or permitted development right development.”

The Government’s “Freeport model has 3 objectives:

a) establish Freeports as national hubs for global trade and investment by focusing on delivering a diverse number of investment projects within the Freeport regions, make trade processes more efficient, maximise developments in production and acquire specialist expertise to secure Freeports position within supply chains.

b) create hotbeds for innovation by focusing on private and public sector investment in research and development; by being dynamic environments that bring innovators together to collaborate in new ways; and by offering spaces to develop and trial new ideas and technologies. This will create new markets for UK products and services and drive productivity improvements, bringing jobs and investment to Freeport regions.

c) promote regeneration through the creation of high-skilled jobs in ports linked to the areas around them, ensuring sustainable economic growth and regeneration for communities that need it most. Local economies will grow as tax measures drive private investment, carefully considered planning reforms facilitate construction and infrastructure is upgraded in Freeports

People of course point to the fact that it was Sunak who as Chancellor in 2021 announced the establishment of the latest round of eight English freeports:

  1. East Midlands Airport
  2. Felixstowe & Harwich including the Port of Felixstowe and Harwich International Port
  3. Humber including parts of Port of Immingham
  4. Liverpool City Region including the Port of Liverpool
  5. Plymouth & South Devon including the Port of Plymouth
  6. Solent including the ports of Southampton, Portsmouth and Portsmouth International Port
  7. Thames including the ports at London Gateway and Tilbury
  8. Teesside including Teesside International Airport, the Port of Middlesbrough and the Port of Hartlepool

How the planning system will operate within them is still uncertain and no doubt will be a patchwork quilt of differing arrangements. The Government’s Freeports bidding prospectus (November 2020) said this on the subject:

3.6. Planning

Bidders will be able to take advantage of the planning reforms set out in the Consultation Response related to permitted development rights and simpler, area-based planning – in particular Local Development Orders (LDOs).

The government recognises the advantages that wider planning reform can bring to Freeports development. Therefore, as part of a longer-term programme of reform to England’s planning system, the government is exploring the potential to go further in these areas, as well as the potential to test ambitious planning proposals in Freeports, taking advantage of the controlled spaces that they offer.

In addition to the measures set out in the Freeports Consultation, the government is actively exploring a new, simpler framework for environmental assessment, as well as intending to review the National Policy Statement for Ports in 2021.”

(Dear reader, you will have noticed that 2021 has since come and gone). 

For further reading I also recommend the House of Commons library paper, Government policy on freeports (14 February 2022).

I mentioned that this is the latest round of freeports. I’m sure we can expect the incoming prime minister to expand the initiative. But let’s not forget that freeports are nothing new and (aside from some nuanced detail around state aid) they are not really a dividend from our old friend in the corner, Brexit. Seven freeports operated in the UK at various points between 1984 and 2012.

Another great theme of the current prime ministerial tussle has been both candidates’ attempts to emulate their professed idol Margaret Thatcher. As a milk drinker I may be biased – as education minister in 1971 she took away free milk from the over sevens. I was seven. (Rishi and Liz weren’t born).

Shortly after she came to power in 1979, the Local Government, Planning and Land Act 1980 was enacted (“lug plaa” as we all called it) which paved the way for the creation of a new type of urban development corporations, including most notably the London Docklands Development Corporation, which was given wide planning and compulsory land acquisition powers, with the area also given enterprise status under the Act. Here is the rather quaint 26 April 1982 press release.

The Survey of London: Volumes 43 and 44, Poplar, Blackwall and Isle of Dogs gives this account:

“In order to provide substantial inducements for firms to move into Docklands, the Government, with effect from April 1982, designated much of the area centring around the West India and Millwall Docks as an Enterprise Zone, as provided for under the 1980 Local Government, Planning and Land Act, with the intention of encouraging and speeding up development. The boundary was carefully drawn to exclude those sites which had already been, or were in course of being, developed, such as Billingsgate Market (see plan C). (fn. 5) The chief financial concessions were: freedom from local rates for a ten-year period until 1992, no development land tax, and 100-percent capital allowance for new commercial and industrial buildings, to be set against corporation and income taxes. In December 1986 the Financial Times, in announcing the proposed relocation of its printing works to Docklands, calculated that the £20,850,000 cost of the site and building would be reduced to £15,400,000 by the tax concessions offered in the Enterprise Zone. (fn. 6)

In addition, there were simplified planning procedures: the zone was set up with an overall planning scheme, and any proposed development that conformed to that scheme was deemed to have been given planning consent, unless it was considered a particularly sensitive site and therefore specifically excluded from the general planning provision. (fn. 7) Similarly, development within the zone was normally free of ‘use class’ planning controls, so that a structure originally intended to be a factory or warehouse could be converted to office use during the course of construction, without requiring further permission.” 

The House of Commons Library, research briefing Enterprise Zones  (21 January 2020) is a useful summary of where we now are with enterprise zones. 38 Enterprise Zones were designated between 1981 and 1996. When the coalition government came to power in 2010 Chancellor George Osborne announced the creation of further EZs. As at 2020 there were, I think, 44 in England, in Scotland, 7 in Wales and 1 in Northern Ireland.

Again, no doubt additional EZs may be in prospect. 

What of any of this in the Levelling-up and Regeneration Bill – and is it going to be given a Sunakian/Trussian polish in September? The Bill does already provide for locally-led urban development corporations, away from the previous 1980 Act centralised model (how truly local is local depends of course on the carrots and sticks deployed by the centre) but are we going to see any more ambitious/radical ideas come into play? 

This has been an only-scratching-the-surface and leaving-you-to-join-the-dots sort of blog post. Even getting this far has taken me, on-screen at least, all around the world. I don’t have all the answers. Be wary of those, on all sides, who pretend that they do!

Simon Ricketts, 30 July 2022

Personal views, et cetera

Neutrality: Government Clambers Off The Fence

Ahead of a late but welcome announcement by the Government, there was a silly headline in The Times this week: Homes crisis ‘worsened by environmental red tape’ (18 July 2022). Yes, we are back to the topic of my 16 July 2022 blog post: nutrient/water neutrality.

It’s good that this huge issue is attracting media attention – and I’ll come on to the Government announcement in a moment – but it is disappointing to see the usual “red tape” sneer.

The problem isn’t the rules or bureaucracy: we have specific areas designated of particular ecological importance and sensitivity, the integrity of some of which is under threat because of the existing levels of nutrients draining into them, from farming (eg fertilisers, animal waste) and from homes (human waste), and the integrity of others which is under threat due to the consequences of over-abstraction of water. These situations haven’t been adequately dealt with by the water companies or government agencies, meaning that even one more home being built in these catchment areas is considered by Natural England to be unacceptable without adequate mitigation in place (which can be difficult, particularly for smaller schemes). The problem isn’t the housebuilding, it’s the pre-existing precarious state of these areas.

It is a big problem, and it has been with us for a long time now (see my previous blog posts).

The Government has been waking up to the issue. Back in March 2022, DEFRA announced some support for affected local planning authorities, Nutrient pollution: reducing the impact on protected sites  (16 March 2022). But this was little comfort to those stuck in the system.

But this week we saw more wide ranging measures announced by DEFRA and DLUHC. Of course they won’t provide an immediate solution, but they are certainly welcome. 

The package of announcements comprises

These are the main measures announced by the Secretary of State:

  • In order to drive down pollution from all development in the relevant catchments, we will be tabling an amendment to the Levelling Up and Regeneration Bill. This will place a new statutory duty on water and sewerage companies in England to upgrade wastewater treatment works to the highest technically achievable limits by 2030 in nutrient neutrality areas. Water companies will be required to undertake these upgrades in a way that tackles the dominant nutrient(s) causing pollution at a protected site. We are also using feedback from the recent ‘call for evidence’ to water companies to identify where these upgrades could be accelerated and delivered sooner.”
  • Natural England is directed to establish a nutrient mitigation scheme. “Defra and DLUHC will provide funding to pump prime the scheme: this is intended to frontload investment in mitigation projects, including wetland and woodland creation. This will then be recouped through a simple payment mechanism where developers can purchase ‘nutrient credits’ which will discharge the requirements to provide mitigation. Natural England will accredit mitigation delivered through the Nutrient Mitigation Scheme, enabling LPAs to grant planning permission for developments which have secured the necessary nutrient credits…We will announce further details in the autumn when the scheme will launch, and in the meantime, Natural England will be in touch with local authorities and developers.”
  • Longer term, we continue to progress proposals to reform the Habitats Regulations so that impacts on protected sites are tackled up front, focusing on what is best for bringing sites back into favourable status.”
  • We will make clear in planning guidance that judgements on deliverability of sites should take account of strategic mitigation schemes and the accelerated timescale for the Natural England’s mitigation schemes and immediate benefits on mitigation burdens once legislation requiring water treatment upgrades comes into force. DLUHC will revise planning guidance over the summer to reflect that sites affected by nutrient pollution forming part of housing land supply calculations are capable of being considered deliverable for the purposes of housing land supply calculations, subject to relevant evidence to demonstrate deliverability. It will be for decision takers to make judgements about impacts on delivery timescales for individual schemes in line with the National Planning Policy Framework.”

Joanna Averley’s letter goes into more detail as to how the proposed new statutory duty on water companies will help:

The majority of nutrient pollution from residential properties enters waterbodies via treated discharges from wastewater treatment works (WWTW). The performance of WWTW varies based on the limits in environmental permits issued by the Environment Agency, which in turn reflect the environmental requirements of the waterbodies to which the effluent is discharged. The performance of WWTW is therefore the central factor in the level of nutrient pollution associated with existing homes and new development. It is therefore logical that effort on reducing nutrient pollution associated with housing focusses on upgrading WWTW. The statutory obligation for upgrading WWTW, which will be introduced into the LURB, will ensure that WWTW in nutrient neutrality catchments are operating at the highest level of performance, rectifying nutrient pollution at source. This will reduce the pollution from not only new development coming forward, but also from the majority of existing dwellings in affected catchments, representing a significant decrease in overall pollution from housing.

The specific performance levels of the connected WWTW is a major variable when determining the amount of mitigation new development has to secure to achieve nutrient neutrality. Suitable mitigation measures might include constructed wetlands or land use change, which can be land intensive. Under Natural England’s Nutrient Neutrality methodology, the permit limit is used, or where there is no permit limit on nutrient discharges from WWTW, a standard precautionary figure is used (8mg/l for phosphates (P) and 27mg/l for nitrates (N)). The statutory obligation from 2030 will require WWTW to operate at the technically achievable limit (TAL); for phosphates this is 0.25mg/l and nitrates 10mg/l. This action will ameliorate nutrient pollution and significantly reduce the mitigation burden for developments.

The habitat regulations require that mitigation be secured for the lifetime of the development which Natural England consider to be 80-120 years. The obligated upgrades to WWTW required from 2030; will provide clarity from the point of the LURB measures coming into force. For developments this means that the current high level of mitigation will only be required up to the end of 2030. After 2030, the pollution levels via WWTW will be much reduced and so a lower level of mitigation will be required. This reduces the overall mitigation burden on housing developments coming forward in nutrient neutrality catchments.”

This should be welcomed (even if it is so belated and does raise questions as to whether water companies will actually be able to deliver – and at whose cost) but of course there is still the period to 2030 before these new permit limits apply and so it is important that the promised nutrient mitigation scheme is up and running as soon as possible. Housing Today have raised significant concerns on that score in their piece, Government’s nutrient mitigation scheme ‘years away’ (22 July 2022)

Finally, the ministerial statement sets out unambiguously the Government’s position as to whether the Regulations bite on reserved matters applications and applications to discharge pre-commencement conditions: “The Habitats Regulations Assessment provisions apply to any consent, permission, or other authorisation, this may include post-permission approvals; reserved matters or discharges of conditions.” Joanna Averley’s letter promises further planning practice guidance on this issue. 

In the meantime, there is no Planning Law Unplanned clubhouse event this week but I am speaking at a clubhouse event arranged by Iain Thomson of Bellona Advisors for 6pm on Monday 25 July 2022 on the subject of Strategic Rail Freight Interchanges, alongside writer Gareth Dennis and Intermodality’s Nick Gallop – join here. And for a taster of what we may cover, here’s Iain’s recent SRFIs blog post.  

Simon Ricketts, 23 July 2022

Personal views, et cetera 

18 July 2022 tweet

Neutrality

That word neutrality. 

I’ll turn in a moment to the Court of Appeal’s 15 July 2022 ruling on nutrient neutrality in R (Wyatt) v Fareham Borough Council and Natural England

But first, on political neutrality. I can’t say that there is a political party at the moment I could support. Is that neutrality? It’s certainly depressing. 

This week, in an effort not to waste energy when most of us have no voice in the selection process, I haven’t been tweeting about all the rights and wrongs of the prime ministerial candidates. One of my better decisions. However, it is frustrating to see the usual 2022 Tory comfort food being served up on a plate:

A Labour solution to housing would concrete over the whole country and leave us with socialist homes, that are owned by the state, that we can rent on a temporary basis” (Tom Tugendhat)

Net zero = “well-meaning regulations” clogging up economic growth (Kemi Badenoch)

low planning zones: new investment zones around key parts of the United Kingdom with much clearer planning rules so people can get on with building straight away to generate those jobs and opportunities.” (Liz Truss) – possibly a reference to the libertarian “Charter Cities” idea that seems to be gaining some traction in right wing conservative circles – Sunak and Mordaunt being other potential adherents. (For more on charter cities see for instance Ann Moody’s 6 June 2022 piece in Yorkshire Bylines, Brexit benefits: From Honduras to Hull, via Hong Kong).

Is any of this food, no doubt comforting for some, good for you? Are we even able to ask such a “woke” question? 

Deregulation is of course an ever-present theme – Back To (Planning For) The Future, or what. Of course it will end badly, with botched plans and broken promises.

Meanwhile, in the real world, the inability of the Government and its agencies to arrive at any timely solutions is still the reason why Natural England’s approach to nutrient, water and recreational impact neutrality is such a blocker to house building in so many areas of the country. Water companies are failing to meet their obligations (see the Environment Agency’s no holds barred 12 July 2022 report Water and sewerage companies in England: environmental performance report 2021), farmers rail against existing restrictions on fertiliser use, off-site mitigation schemes are slow to gain traction and local planning authorities proceed (or rather don’t proceed) in a state of extreme caution. 

I last blogged on the subject in my 26 March 2022 blog post More On That Natural England Advice.  

Since then the HBF has published two Lichfields reports:

Lichfields modelled five scenarios which estimate different levels of reduction in housebuilding as a result of the nutrients issue, as follows:

1 A 10% reduction in housebuilding;

2 A 25% reduction in housebuilding;

3 A 50% reduction in housebuilding; and,

4 The non-delivery of an estimated c.53,000-60,000 new homes across the (at that point) seven catchment areas.

By way of example:

“A 10% or 50% reduction in the number houses being delivered across the seven catchment areas would equate to a reduction in between 2,540 and 12,700 new homes being built each year. This would have the potential to result in:

1 An annual reduction of between £441.8 million and £2.2 billion economic output produced by builders, their contractors and suppliers;

2 A reduced opportunity to create or support between 8,100 and 40,560, indirect, and induced jobs per annum;

3 A loss of between £2.9 million and £14.7 million in potential Council Tax revenue per annum;

4 A loss of between £17.0 million and £84.9 million in New Homes Bonus payments each year;

5 A missed opportunity to invest between £12.0 million and £59.8 million in essential infrastructure collected from Section 106 and CIL contributions per annum; and,

6 The loss of affordable housing delivery valued at between £48.8 million and £244.2 million per annum.

This examines whether Natural England’s assumption in its guidance to date of an average occupancy of each new home by 2.4 people is too high, leading to an over-estimate as to the likely effects arising from new development:

Multiple strands of analysis all point to the fact that the nutrient calculators that have been applied throughout the seven catchments over-estimate significantly the likely additional population that would result from the development of new housing. This will tend to over-estimate the nutrient load associated with new development and expect levels of mitigation that may not be necessary.

By way of solution, we recommend that the nutrient calculator should be amended to adopt a more sensitive assessment of population change. This should reflect the level of households/dwellings associated with a net zero population growth scenario for which no mitigation would be required. Mitigation associated with the provision of new housing to accommodate population growth should be based on the net average household size figure; this will be lower than average household size to take account of the fact that the resident population in the existing stock will be falling going forward.”

The HBF has also continued to bang the drum for a more sensible approach to reserved matters applications and applications for discharge of pre-commencement conditions – all delayed in affected areas. The HBF’s James Stevens said this recently in a LinkedIn post:

Based on an HBF survey of members 40% of the 38,365 homes delayed in the 42 local authorities newly affected by this issue (since 16 March 2022) are caught at reserved matters and discharge of conditions stages. It is likely that a comparable number of homes are at the same stages among the 60,000 homes delayed in the 32 local authorities initially affected by this issue (for many since 22 July 2019).

His post included a link to Charlie Banner QC’s updated opinion dated 6 June 2022, which articulates a legal case for regulation 63 of the Conservation of Habitats Regulations not applying at these stages but I’m not aware of any authorities yet adopting that position. We await the inevitable appeal decisions. 

I referred in my 26 March 2022 blog post to Jay J’s first instance ruling in R (Wyatt) v Fareham Borough Council and Natural England, where a claimant failed to persuade the court that Natural England’s previous 2020 advice on achieving nutrient neutrality in the Solent region was, in the light of the precautionary approach, in fact not stringent enough.

The claimant secured permission to appeal to the Court of Appeal. If the court had overturned that ruling that would have put us in an even more difficult place but the court (Lindblom LJ, Singh LJ and Males LJ) dismissed the appeal on 15 July 2022. A bailii transcript is not available but barrister Conor Fegan (who acted for the claimant, assisting Greg Jones QC) has posted a link to the judgment on LinkedIn and, also on LinkedIn, David Elvin QC (who appeared for Natural England, leading Luke Wilcox – Tim Mould appeared for Fareham) has posted an excellent summary. Because it’s a hot Saturday afternoon I’m not embarking on my own summary – please read David’s!

After quite a gap we have another clubhouse Planning Law Unplanned session arranged for 6 pm on 19 July 2022. We were originally going to look at whether or not it is correct that LURB represents a “power grab” by Government, as postulated by some. But in the light of events, we will extend the remit of the discussion to a neutral (of course) evaluation of what the changes within DLUHC and the prospective change of prime minister are likely to mean more fundamentally for our planning system and any potential reform. The speakers so far include Steve Quartermain CBE and Killian Garvey but I’d love to hear your views. Join here.

Simon Ricketts, 16 July 2022

Personal views, et cetera

It’s Planning Law Month In The Supreme Court!

The UK Supreme Court, that is. The US Supreme Court has gone back at least 50, maybe 55, years as we all know. 

I’m ignoring as too painful for this blog post:

  • those rulings, which had their gestation partly in the process by which the judiciary is appointed in the US and partly in that country’s Delphic and out of date written constitution
  • the current uncertainties at the heart of UK politics, which must be giving rise to the question as to whether this country should have a written constitution. 

I’m also not yet making any predictions about what the changes within DLUHC ministerial team mean for the planning system reforms that are currently underway. 

However let’s just say that Where Did Our LURB Go? is pretty likely to be a future blog post title.

Whilst all this has been swirling around, two cases are before the UK Supreme Court which raise fascinating planning law questions, both of them having their root in what is, in the context of our relatively youthful postwar planning system, ancient and well-known case law.

On 4 July 2022 the court (Lord Reed, Lord Briggs, Lord Sales, Lord Leggatt and Lady Rose) heard Hillside Parks Limited v Snowdonia National Park Authority

I was very pleased to be part of the Hillside Parks team, behind Charlie Banner QC, Robin Green & Matt Finn & lead solicitor David Harries (Aaron & Partners). Before being appointed, I wrote a 7 November 2020 blog post Multiple Planning Permissions, Antique Planning Permissions: Hillside which set out my concerns with the Court of Appeal’s ruling. 

There is a brief summary of the issues before the court and relevant facts on the Supreme Court website and that page also includes links to recordings of the day’s proceedings, featuring some lively questioning of Charlie and (appearing for the park authority) of Gwion Lewis QC by the Supreme Court justices. 

At the heart of the arguments was the question of the proper application of  Pilkington v Secretary of State for the Environment (1973), where the Court of Appeal had held that where there were two incompatible permissions, the developer could not implement the earlier development when the later had rendered it no longer capable of implementation in the permitted terms. What is the position where the later permissions are for changes to one part of a wider development approved in the original planning permission? Zack Simons has done a good #planoraks blog post on the subject (of course): When you can’t build both – clashing permissions  (8 January 2021). 

How long until judgment? Your guess is as good as mine. The Supreme Court website says this:

“As a very broad indication, judgments tend to follow between three to nine months after the conclusion of the appeal hearing, although in some cases it may be earlier than that.”

On 12 July 2022 a similarly constituted court (Lord Reed, Lord Hodge, Lord Kitchin, Lord Sales and Lady Rose) will hear DB Symmetry Limited v Swindon Borough Council. The summary on the Supreme Court website sets out the issue as follows:

“Whether the principle enunciated by the Court of Appeal in Hall & Co Ltd v Shoreham by Sea Urban DC [1964] 1 WLR 240, that a planning condition could not lawfully require the developer to dedicate land for public purposes without the payment of compensation, is correct in law. 


Proper interpreted in light of the answer to the first issue, what is the legal effect of the relevant planning condition.”

There is some background and commentary on the Court of Appeal’s judgment in my 17 October 2020 blog post Do Your Conditions Have Symmetry In Mind? 

It is going to be useful to have an up to date articulation by the Supreme Court of the proper approach to both of these sets of issues: overlapping permissions and also what can be secured by condition. Indeed the rulings will have implications for the Levelling-up and Regeneration Bill: respectively (1) does clause 98 go far enough in providing a new procedure for amending permissions and (2) if the role of section 106 agreements is to be much diminished under the new infrastructure levy system, how much of the heavy lifting can lawfully done by way of imposition of planning conditions?

In the meantime, there is plenty to listen to at least:

  • My Town Legal colleagues Meeta Kaur, Victoria McKeegan and Nikita Sellers have embarked upon a new podcast, Planning Law (With Chickens), which is very very good. There is a bumper first episode, with special guest Stephanie Hall, available via eg Apple and Spotify.
  • Sam Stafford kindly invited me onto his 50 Shades of Planning podcast to talk about the LURB with Catriona Riddell, Jennie Baker and Tony Burton. The episode will be released shortly. 
  • As previously mentioned, our next Planning Law Unplanned discussion on Clubhouse will be at 6 pm on 19 July: “LURB: who will have the power?” Do join here. Indeed, if you would like to speak do let me know – we would like a diverse range of voices and views. 

Simon Ricketts, 9 July 2022

Personal views, et cetera

Summer Of LURB

What progress has there been on the Levelling-up and Regeneration Bill since it was introduced into the House of Commons on 11 May 2022 (see my 14 May 2022 blog post Does LURB Herald A More Zonal Approach to Planning After All?)?

The Second Reading debate was held on 8 June 2022 and I have just been reading the Hansard transcript– it wasn’t particularly edifying and I should just have relied on Nicola Gooch’s excellent summary in her 9 June 2022 blog post Tainted LURB: What can we learn from the Levelling Up & Regeneration Bill’s Second Reading?

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).

Rant over. 

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. 

Landmark Chambers barristers Paul Brown QC and Alex Shattock have created some waves with their 30 May 2022 briefing note on the provisions in the Levelling Up and Regeneration Bill concerning public participation in the planning system for the campaign group Rights Community Action:

“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.

Simon Ricketts, 2 July 2022

Personal views, et cetera

Pic courtesy AARP

The Removal Of Rights Bill

A codified list of British values might very well start with those within the European Convention on Human Rights, summarised as follows:

the right to life (Article 2)

freedom from torture (Article 3)

freedom from slavery (Article 4)

the right to liberty (Article 5)

the right to a fair trial (Article 6)

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.”

(Equality and Human Rights Commission website)

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.

Two examples:

R (RLT Built Environment Limited) v Cornwall Council and St Ives Town Council (Hickinbottom J, 10 November 2016) concerned a challenge to the policies in the St Ives neighbourhood plan designed to limit second home ownership by imposing residency requirements. The developer claimant sought unsuccessfully to argue that the policies contravened article 8.

The judge rejected the claim:

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?).

The Bill of Rights Bill was laid before Parliament on 22 June 2022, accompanied by the publication of an explanatory memorandum , impact assessment and press statement.

From the press statement:

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.

Simon Ricketts, 25 June 2022

Personal views, et cetera

Land Value Capture Via CPO

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)?

There have been some trenchant criticisms, for instance, as set out in my partner Raj Gupta’s Compulsory Reading 8 June 2022 blog post and Jonathan Stott’s blog post A few thoughts on Government’s proposal to limit compulsory purchase compensation to less than market value. Yes, really!

I can certainly see that care is needed to ensure that:

• the use of the procedure by acquiring authorities is procedurally fair, transparent and justified in public policy terms by the benefits thereby unlocked that could not otherwise have been achieved

• the sheer risk that the procedure may be used, anywhere, will not spook lenders.

However, the wider policy aspiration to achieve greater land value capture, in the public interest, is not new or a particular surprise. See my 31 August 2018 blog post Market Value Minus Hope Value = ? and the Government’s subsequent Response to the Housing, Communities and Local Government Select Committee inquiry on land value capture (November 2018):

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.”

Or, even further back, my blog post Money For Nothing? CPO Compensation Reform, Land Value Capture which quotes, for instance from a Conservative Party press release issued a week before its May 2017 manifesto:

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.

Simon Ricketts, 11 June 2022

Personal views, et cetera

Extract from photo by Valeria Fursa courtesy of Unsplash

Call-In: Article 31 Directions Likely To Be More Common

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.

(Written ministerial statement, 26 October 2012).

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.”

Whilst it precedes that statement, useful background information on the process more generally is set out in the House of Commons briefing paper, Calling-in planning applications (England) (31 January 2019).

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?).

Call-in requests are dealt with by DLUHC’s planning casework unit in Birmingham. Its work and the decisions of ministers pursuant to its recommendations are informed by guidance on planning propriety: planning casework decisions (last updated 16 December 2021).

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 ([19]). 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 ([19] and [22] – [30]).

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 [1926] 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.

Simon Ricketts, 5 June 2022

Personal views, et cetera

Extract from photograph by Josh Appel, courtesy Unsplash

IL Defined

Except that you can’t really define the Infrastructure Levy yet. This blog post summarises what we know so far and asks some open questions.

Town Legal’s summary of the Bill and related announcements contains this section on the Infrastructure Levy, for which thanks go to Clare Fielding:

8. Part 4 – Infrastructure Levy

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.

This is how the levy was sold to us in the Planning For The Future White Paper (August 2020):

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.

Simon Ricketts, 28 May 2022

Personal views, et cetera

Details from image by Megan Bucknall courtesy of Unsplash