May 2017 – SIMONICITY

Affordable Housing Tax

In requiring the developers of private housing schemes to contribute to the provision of affordable housing, the planning system has become a tax collection system, and an inefficient, opaque one at that.
The OECD classifies taxes as follows:
“… compulsory, unrequited payments to general government. Taxes are unrequited in the sense that benefits provided by government to taxpayers are not normally in proportion to their payments.

The term “tax” does not include fines unrelated to tax offences and compulsory loans paid to government. […]

General government consists of supra-national authorities, the central administration and the agencies whose operations are under its effective control, state and local governments and their administrations, social security schemes and autonomous governmental entities, excluding public enterprises.”
Participants in the planning system seem to accept the political policy choice that has been made: to require developers to subsidise the provision of affordable housing, whether by requiring them to dispose of land or built units to registered affordable housing providers at less than market value (and nowadays at less than cost, given the increasing scarcity of any public sector grants or other forms of subsidy) or to make financial payments towards the provision of affordable housing elsewhere in the area.
The provision of market housing does not in any way increase the need for affordable housing, indeed over time by increasing supply if anything it should decrease it. It may be said that mixed use communities can only be achieved by requiring the inclusion of affordable housing within market residential schemes, but that in itself does not justify the state putting the cost of the affordable housing at the door of the developer. The only reason that affordable housing section 106 planning obligations meet the requirements of regulation 122 of the Community Infrastructure Levy Regulations 2010 (necessary to make the development acceptable in planning terms; directly related to the development; and fairly and reasonably related in scale and kind to the development) is because of local policies seeking such obligations, supported by national policy. Policy could have easily required development across the board to contribute to affordable housing – or another category of development other than market housing. Why shouldn’t we use plain language and describe the extent of subsidy on each scheme as a tax? Hypothecated it may be but it still surely meets that OECD definition. For the rest of this post I will refer to it as Affordable Housing Tax, AHT.
How to calculate AHT? Frequently, the high proportion of affordable housing that is required to be provided in connection with a private market housing development, when taken with the other costs of that development (including CIL where chargeable, a more straight-forward and transparent tax – that’s how bad AHT is!), would render the project unviable and so AHT ends up being as much as can be extracted from a development whilst allowing it to go ahead, assuming a fixed capped profit level for the developer and a fixed capped land value for the land owner (often less than its “real” value or actual acquisition cost).
Take London. The London Plan requires boroughs to seek to maximise affordable housing provision. The current Mayor has indicated that his “long-term aim is for half of all new homes to be affordable”. In his November 2016 draft affordable housing and viability SPG (the subject of my 1.12.16 blog post ), he introduced a ‘threshold approach’, whereby schemes meeting or exceeding 35% (by habitable room) affordable housing without public subsidy will not be required to submit viability information. There are also minimum requirements as to the proportions of different types of affordable housing that will be required (“tenure split” in the affordable housing industry jargon that we have grown up with). For schemes that cannot meet the threshold, viability appraisal is required to justify how much affordable housing the scheme can deliver.
Imagine such a concept in any other sector:
1. The market produces goods which reduce the need for the state to provide a service, or which are at least neutral.

2. The market is taxed on those goods, with the tax applied towards provision of that service, instead of that service being paid for by the state.

3. The level of that tax differs according to location but will often equate to all profits arising from the production of the goods, less a capped profit and capped input cost.

I’m expressing no view as to whether this process is right or wrong. However, I do feel that the underlying reality has been conveniently forgotten. And the collateral damage from AHT is:
1. loading complexity into the planning process, with local planning authorities having to fulfil both a tax assessment and tax collection role

2. encouraging bad outcomes, with developers incentivised to expend resources on AHT mitigation (complex affordable housing negotiations, arguments over tenures, viability appraisal)

3. reducing housing delivery by rendering some projects unviable.

How did we get here? There is an interesting 2002 study by the Joseph Rowntree Foundation, “Planning gain and affordable housing: making it count”, which starts with this brief history:

“Local authorities had been experimenting with ways of using the planning system to secure affordable housing in a number of areas in England in the 1970s, but official government endorsement first came in 1979 when the rural exceptions policy was announced. This enables rural planning authorities to grant planning consent for housing on sites that would not otherwise receive permission, provided that only affordable housing is developed on them.
The approach was more widely sanctioned to enable affordable housing to be secured on all larger housing developments in 1981 and subsequently included in all Planning Policy Guidance on housing (PPG3) issued since then (DETR, 2000). Provided that local planning authorities have policies in their adopted statutory development plans that assess the need for new affordable housing in their districts, they may require private developers to contribute to meeting this need. They may also set specific targets to be achieved on sites allocated for new housing in adopted plans. When developers agree to make contributions these are made legally binding contracts, where they enter into agreements with the relevant planning authority under section 106 of the 1990 Town and Country Planning Act as part of the process of securing planning permission.”

“In 1998, the policy was amended, to reduce site thresholds above which contributions would normally be sought, and to link it more closely with the government’s policies on social inclusion, mixed communities and urban renaissance through on-site provision of affordable housing (DETR, 1998). In the 2000 version of PPG3, the government made it clear that developers’ unwillingness to make contributions to affordable housing would be an appropriate reason, of itself, to refuse planning permission (DETR, 2000).

In the 2001 Green Paper on reform of the planning system the government proposed widening the scope of the affordable planning policy to incorporate small sites and commercial developments. It also proposed replacing negotiated contributions by standard authority- wide financial tariffs, which would still mainly be used for on-site provision. (DTLR, 2001a, 2001b).”
In my view, a significant turning point was paragraph 38 of PPG3 (1992): “A community’s need for affordable housing is a material consideration which may properly be taken into account in formulating development plan policies.”
This from an interesting 26 October 2011 paper by Tim Mould QC:
“At the time, the introduction of that policy provoked considerable controversy in planning circles. In Mitchell v Secretary of State, Roy Vandermeer QC sitting as a deputy High Court Judge held that a planning appeal decision based upon considerations of housing price and tenure was unlawful, on the ground that such considerations had nothing to do with the character and use of land. Had that view prevailed, the now conventional approach to delivering affordable housing through the planning process would have been dead in the water, considerations of price and tenure being part and parcel of the means whereby affordable housing is actually secured through the development control process.

That view did not, however, prevail. The Court of Appeal overturned Mr Vandermeer’s decision. In Mitchell v Secretary of State [1994] 2 PLR 23, Saville LJ said (page 26G-H) :

“On the law as it presently stands, therefore, the need for housing in a particular area is a planning purpose which relates to the character and use of land. Given that this is so, the proposition advanced on behalf of Mr Mitchell is that the need for a particular type of housing in an area is not a planning purpose which relates to the character of the use of land if that need is itself dictated or generated by considerations of cost or type of tenure.

I cannot accept this argument. To my mind there is no sensible distinction to be drawn between a need for housing generally and a need for particular types of housing, whether or not the latter can be defined in terms of cost, tenure or otherwise. In each case the question is whether, as a matter of planning for the area under consideration, there is a need for housing which the grant or refusal of the application would affect.

The fact that the need may be dictated by considerations of cost or type of tenure seems to me to be immaterial…. ….the fallacy in the argument is that it simply confuses the need for housing (which on the authorities is a legitimate consideration) with the reasons for that need and concentrates exclusively on the latter while effectively ignoring the former. ”

Thereafter the national planning policy for the delivery of affordable housing through the planning process became encapsulated in a departmental circular devoted to that topic – DETR Circular 6/98 “Planning and Affordable Housing“. Building on the established materiality of the need for affordable housing, paragraph 1 of the circular required local planning authorities to investigate the degree of need for affordable housing in their area and, based on that evidence, to include in their local plans a policy for seeking an element of such housing on suitable sites. Such policies would then be material consideration in determining an application for planning permission.”

Tim then points to PPS3 (2005), which is even more specific as to what was required from developers: “planning authorities were required to set overall targets for affordable housing during the plan period based on (inter alia) the findings of a Strategic Housing Market Assessment; to include separate targets for social rented and intermediate housing; to specify the size and type of affordable housing likely to be needed in particular locations; to set out the range of circumstances in which affordable housing would be required; and to set out the approach to seeking developer contributions towards affordable housing provision in their area. There was further guidance on the provision of affordable housing in rural areas.”
As we then move forward to the publication in 2012 of the NPPF, the references to seeking developer contributions to affordable housing are lost. Not because the approach has changed but because by now this is just the system, isn’t it?
The NPPF simply says this about affordable housing, para 50:

“To deliver a wide choice of high quality homes, widen opportunities for home ownership and create sustainable, inclusive and mixed communities, local planning authorities should:

* plan for a mix of housing based on current and future demographic trends, market trends and the needs of different groups in the community (such as, but not limited to, families with children, older people, people with disabilities, service families and people wishing to build their own homes);  

* identify the size, type, tenure and range of housing that is required in particular locations, reflecting local demand; and  

* where they have identified that affordable housing is needed, set policies for meeting this need on site, unless off-site provision or a nancial contribution of broadly equivalent value can be robustly justified (for example to improve or make more effective use of the existing housing stock) and the agreed approach contributes to the objective of creating mixed and balanced communities. Such policies should be sufficiently exible to take account of changing market conditions over time“ 

Similarly, there is the assumption in the Government’s 2014 planning practice guidance, along with specific references later introduced into the document as to the circumstances in which affordable housing requirements should not be sought (reflecting the 28 November 2014 written ministerial statement that set out the small sites threshold and the vacant building credit).

Throughout this period the availability of public subsidies to support the delivery of affordable housing has reduced.
What an example of mission creep all of this is. How enticing for successive governments to restrict general taxation by progressively increasing the burden of paying for affordable housing onto private sector residential development.
The political sleight of hand goes further: recognising the financial impact that this responsibility places on residential development, beneath the headline proportions of affordable housing that are sought, the definition of affordable housing has been adjusted to the disadvantage of those in most need of it:
– first with the introduction of affordable rent rather than social rent (see the House of Commons Library briefing paper dated 7 May 2015), affordable rent being a reduction of at least 20% on market rent as opposed to social rent’s generally lower, fixed rent, levels
– more recently with consultation on widening the definition of affordable housing to include “starter homes” and also, for build to rent development, discount market rent (see my 4.3.17 blog post).

One advantage of calling a tax a tax would be that we could then have an honest conversation as to whether it is right that CIL always has priority over AHT. That 15% of CIL that is for neighbourhoods to apply (25% where a neighbourhood plan is in place) – can’t AHT take priority over that? Indeed, given that neighbourhood slice doesn’t even have to be spent on the provision of infrastructure (but on either “the provision, improvement, replacement, operation or maintenance of infrastructure” or “anything else that is concerned with addressing the demands that development places on an area”), why not advise that in areas of particular need of affordable housing the neighbourhood slice should automatically go toward affordable housing?
Of course the very term “affordable housing” is politician-speak. After all, all housing is affordable to some and unaffordable to others. Don’t we really mean “subsidised housing”, “low income housing” or “public housing”? I’m surprised indeed we haven’t yet seen it rebranded as “community housing”.
But what other approach could be taken to securing it, other than the present one?
An interesting exercise would be to calculate, nationally or authority area by authority area, the annual level of AHT that is secured from developers by way of section 106 obligations (some useful national figures to begin with are within Annex A of the Government’s May 2016 starter homes consultation paper) and then to work out what that might equate to if it became an across the board (all development, not just housing) CIL-type charge. As I say, why should the cost of affordable housing solely fall on residential development? Indeed, arguably it is employment development that adds more directly to the need for homes.
Indeed, as part of any review of CIL, doesn’t the concept of a Community Housing and Infrastructure Levy, or CHIL, have a ring to it?
Furthermore, whilst there is a much bigger role for local authorities to play in delivering affordable housing, direct and in conjunction with registered providers and the private sector (and potentially with a greater focus on neighbourhood, community, participation in delivery and management), why not turn the system on its head and boost production by making it positively in the developer’s interest to deliver affordable housing, through offering tax credits? This has been the US model, via the Low-Income Housing Tax Credit (LIHTC), ironically now under threat due to Trump’s proposed tax changes (see for example Bloomberg piece Trump Corporate Tax Shakeup Puts Housing Developers in Tailspin 26 April 2017).

Or do we have it right with our present system? Question.
Simon Ricketts 28.5.17
Personal views, et cetera

Money For Nothing? CPO Compensation Reform, Land Value Capture

To what extent might the state choose to tax land owners, through reducing their compensation entitlement, in order to facilitate the provision of housing or infrastructure, rather than subsidise that provision through more general tax raising? How can the state capture land value gains created by its own infrastructure provision, or due to its own strategic planning for development?
These questions are central to a number of current areas of public policy thinking, including:
– Using compulsory purchase
– Land auctions and land value capture charges
– Benchmark land values in viability appraisal
– CIL reform
There are some confluences arising in this area between current Conservative party thinking, other political parties, Transport for London and Shelter to name but a few. I’m not sure that land owner interests have yet joined all the dots. Developers may wish to partner more closely and regularly with local authorities with compulsory purchase powers, but in other situations should also be aware of the risks ahead for their businesses if additional costs are not sufficiently predictable as to come off the land price or if they cause land owners simply to hold rather than sell.
Using compulsory purchase

Compulsory purchase is already a practical mechanism for securing land where there is a compelling case in the public interest for interfering with private property rights. Of course it isn’t easy, and will never be. The power is draconian. The necessary procedural safeguards to protect against its abuse make for a slow, procedurally technical process and for uncertain outcomes.

Another disincentive for local authorities can be the significant compensation costs payable, given the fundamental principle that the land owner is entitled to what the value of his interest would have been were it not for the compulsory acquisition (the ‘equivalence’ principle). Even where compensation liability is being underwritten by a developer partner, the extent of compensation is:
– likely to affect whether the project is viable after all; and
– not ascertainable until all parties are too far in to back out due to the leisurely pace at which a compensation figure is determined (both pre- and post-reference to the Lands Tribunal, aka Lands Chamber of the Upper Tribunal).
The Conservative manifesto, published on 17 May 2017, refers to compulsory purchase in this one paragraph:
“We will enter into new Council Housing Deals with ambitious, pro-development, local authorities to help them build more social housing. We will work with them to improve their capability and capacity to develop more good homes, as well as providing them with significant low-cost capital funding. In doing so, we will build new fix-term social houses, which will be sold privately after ten to fifteen years with an automatic Right to Buy for tenants, the proceeds of which will be recycled into further homes. We will reform Compulsory Purchase Orders to make them easier and less expensive for councils to use and to make it easier to determine the true market value of sites”.

I am guessing that what is planned goes further than making the current system work better. Changes are being considered which would enable in some circumstances greater use of compulsory purchase and, in some circumstances, acquisition at lower values than the equivalence principle would suggest.
The February 2017 Housing White Paper says this:
“2.43 Compulsory purchase law gives local authorities extensive powers to assemble land for development. Through the Housing and Planning Act 2016 and the Neighbourhood Planning Bill currently in Parliament we are reforming compulsory purchase to make the process clearer, fairer, and faster, while retaining proper protections for landowners. Local planning authorities should now think about how they can use these powers to promote development, which is particularly important in areas of high housing need.

2.44 We propose to encourage more active use of compulsory purchase powers to promote development on stalled sites for housing. The Government will prepare new guidance to local planning authorities following separate consultation, encouraging the use of their compulsory purchase powers to support the build out of stalled sites. We will investigate whether auctions, following possession of the land, are sufficient to establish an unambiguous value for the purposes of compensation payable to the claimant, where the local authority has used their compulsory purchase powers to acquire the land.

2.45 [ ]

2.46 We will keep compulsory purchase under review and welcome any representations for how it can be reformed further to support development.”
Note the references to encouraging the use of compulsory purchase where development has stalled, and investigating the use of auctions to establish land value (more on that later in this blog post).
Revealingly, in the week before the publication of the manifesto there was a press release with this passage in its “notes to editors”:
“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.”
I’m guessing at the following policy strands for a future Conservative government from these various statements:
1. Further encouragement for use of CPO powers in the right circumstances, including particular encouragement where a “Council Housing Deal” is in place (guaranteeing social housing with a fixed-term right to buy for tenants) and possibly where private sector development is shown to have stalled (link this and the “delivery” elements of the Housing White Paper and this could be quite a stick to wield).
2. Further process reform likely.
3. Reform likely of the process for determining the compensation price to be paid, so that (1) figures are known earlier on, (2) the land auctions model is followed (see later in this blog post) to determine values in appropriate circumstances and (if those ‘notes to editors’ are to believed) (3) in some circumstances authorities will be able to acquire land for less than it is worth (possibly ruling out hope value unless planning permission or a certificate of appropriate alternative development under section 17 of the Land Compensation Act 1961, has actually been obtained).
The last point (still speculation) has caused consternation and excitement in equal measure. The principle of equivalence is at stake, but equally this opens up the prospect of securing land for development at an undervalue so as to achieve affordable housing at no cost to the state. Money for nothing (unless you are the land owner). Shelter for example have been lobbying for a similar approach. Their May 2017 paper Financing the infrastructure and new homes of the future: the case for enabling acquiring authorities to purchase land for strategic development under a special CPO compensation code May 2017 lobbies for Government to:

“enable acquiring authorities to purchase land for strategic development under a special CPO compensation code. This would involve three changes:

1) An amendment to the National Planning Policy Framework to allow planning authorities to designate land for strategic development;

2) An amendment to Section 14 of the 1961 Land Compensation Act to disregard prospective planning permissions on land designated for strategic development;  

3) An amendment to Section 17 of the 1961 Land Compensation Act to restrict the use of certificates of alternative development on land designated for strategic development.”

Shelter’s delight at the references in the Conservatives’ recent policy announcements is plain to see from their subsequent 16 May 2017 blog post Compulsory purchase and council homes – a new direction for housing policy?
Do the Conservatives really intend such a radical market intervention, or do they misunderstand how the compensation system currently works? The reference in the press release’s “notes to editors” that “councils must purchase land at “market value”, which includes the price with planning permission, irrespective of whether it has it or not” is of course wrong. The prospect of planning permission for development in the “no scheme world” is taken into account in arriving at a valuation but the existence of a planning permission is never assumed.

However logically necessary the concept is, the “no scheme world” (or “Pointe Gourde”) rule been much criticised for being difficult to apply in practice. Its complexities were most recently explored by the Supreme Court in Homes & Communities Agency v JS Bloor (Wilmslow) Ltd (22 February 2017), where Lord Carnwath said this:
“The rule has given rise to substantial controversy and difficulty in practice. In Waters v Welsh Development Agency [2004] 1 WLR 1304; [2004] UKHL 19, para 2 (“Waters”), Lord Nicholls of Birkenhead spoke of the law as “fraught with complexity and obscurity”. In a report in 2003 the Law Commission conducted a detailed review of the history of the rule and the relevant jurisprudence, and made recommendations for the replacement of the existing rules by a comprehensive statutory code…”

Lord Carnwath had himself of course chaired that review. Too late for the litigants in Bloor, now finally, by virtue of section 32 of the Neighbourhood Planning Act 2017 (which introduces new sections 6A to E into the Land Compensation Act 1961) we have a codified version of the “no scheme world” rule. (The compulsory purchase provisions within the 2017 Act are well summarised by David Elvin QC in a paper to the 2017 PEBA conference).

New section 6E has refined the rule so that it is now more difficult for claimants to rely on increases in value of their land created by the transport project for which the land has been acquired, where regeneration or redevelopment was part of the justification for the transport project.
The big question is whether a more radical manipulation of the “no scheme world” rule might be possible, even if it parted from the principle of equivalence. After all, if land for development could be secured at little more than agricultural value…?
It would be mightily difficult, indeed controversial to the extent of potentially being counter-productive, if land is to be acquired without prolonged legal wrangling. If in the real world your land has hope value for another form of development, why should that be ignored? However, in fact it’s not legally impossible.
Article 1 of the protocol to the European Convention on Human Rights states as follows:
“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.”

(Incidentally, the Conservative manifesto confirms: “We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the European Convention on Human Rights for the duration of the next parliament.“)
The European Court of Human Rights interprets Article 1 of the protocol so as to require compensation to be paid in relation to the confiscation of property. In Lithgow v UK (European Court of Human Rights, 8 July 1986), a case arising from Labour’s nationalisation of various industries under the Aircraft and Shipbuilding Industries Act 1977, the court said:
“The Court further accepts the Commission’s conclusion as to the standard of compensation: the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1 (P1-1). Article 1 (P1-1) does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of “public interest”, such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value”.

Whilst a distinction was drawn in the case between state nationalisation of industries and the compulsory purchase of property, the same basic principles apply. It is clear from this and other cases that individual states are given a margin of appreciation to determine what is in the public interest. For example:
– Sporrong and Lönnroth v. Sweden (22 September 1982) (a case about longterm blight caused by ‘zonal expropriation permits’)
“…the Court must determine whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights…”
– James v UK (21 February 1986) (a challenge brought by the trustees of the estate of the Duke of Westminster to leasehold enfranchisement under Leasehold Reform Act 1967):
“Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken… Here as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.” The Court went on to find that the aim of the Leasehold Reform Act 1967, namely greater social justice in the sphere of housing, was a legitimate aim in the public interest.

Similarly, in theory a mechanism might be arrived at which in some way disentitled land owners in some circumstances from achieving a full market value for their land. But the circumstances would need to be carefully circumscribed and the reaction of most land owners would be to fight rather than one of flight.
It is not as if compulsory purchase compensation is presently particularly generous, even with the additional loss payments (capped, even for owner-occupiers, at the lesser of 10% of the compensation payable and £100,000) that were introduced by the Planning and Compulsory Purchase Act 2004 specifically to sweeten the pill for land owners and make compulsory purchase less contentious! Do we really want more uncertain situations such has arisen at the Aylesbury Estate, with the Secretary of State rejecting a CPO made by the London Borough of Southwark, on the basis of the prejudice that would be caused to leaseholders by the inadequate level of compensation payable to them, and now reportedly having consented to judgment following a challenge by the council, such that all concerned now face a re-opened inquiry?
Furthermore, if these amended compensation principles are only to apply to, for example, Council Housing Deals, how will dispossessed owners be able to recover their property, or further compensation, if the land ends up not being used for the restricted purposes for which the land was taken?
Lastly, that manifesto reference to making it “easier to determine the true market value of sites”. Does this suggest a simplification of compensation principles? Or an overhaul of the timescales for determining compensation liability? Transport for London have recently suggested (in the paper referred to in the next section of this blog post) that the Government might make “the process of acquiring land through compulsory acquisition more transparent by:

* Introducing an independent valuation panel to determine the market value of the land based on the ‘no scheme’ principle set out in the Neighbourhood Planning Bill 2016

* Establishing (early in the land acquisition process) an objective and transparent evidence base on alternative development potential in the absence of the scheme, for such a panel to determine ‘no scheme’ market values, for instance through the use of a modified section 17 certificate”.
Land auctions, land value capture charges

The passage quoted earlier from the Housing White Paper refers to “auctions”. Academic Tim Leunig has been promoting the idea of “community land auctions” for a long time and indeed the idea was toyed with in the early years of the coalition government, whilst to a number of us it seemed naive in its assumption as to how planning actually works:
“The council first asks all landowners to name the price at which they are willing to sell their land. By naming a price, the landowner gives the council the right to buy the land for 18 months at that price. The council then writes a development plan. As now, they will take into account the suitability of the land offered for development, but will also consider the price of the land, and the likely financial return to the council.”
Transport for London has more recently been promoting a more sophisticated “development rights auction model” as a method of capturing land value increases created by transport infrastructure improvements. Their 20 February 2017 land value capture report , summarises it as follows:
“For zones with high development potential (particularly for housing) with multiple landowners, the Government, TfL and the GLA should consider the development rights auction model (DRAM), a new land value capture mechanism.

The key features of the development rights auction model are:

* The integrated planning and consenting of land use and density in a defined zone around a major new transport facility, in parallel with the planning of the transport scheme  * The introduction of a periodic development rights auction, in which development rights over land put forward (voluntarily) by landowners are auctioned in assembled packages to a competitive field of developers. Gains above a reserve price are shared between the participating landowners and the planning/auctioning authority. No development taxes (such as CILs or s106 payments) are payable under this scheme. All non-operational but developable public sector-owned land within the zone is entered into the auction as part of a standard public sector land pooling arrangement

* The introduction of a high zonal CIL for those landowners who wish to self- develop rather than participate in the auction

* The use of reformed compulsory purchase order (CPO) powers (following successful passage of the Neighbourhood Planning Bill 2016) to deal with holdout problems that threaten to stall development, together with further consideration of other options as discussed in the report”.
The Government’s 8 March 2017 budget announcements included a memorandum of understanding entered into with the GLA, that says this:
“At Budget 2016, the government invited Transport for London (TfL) to bring forward proposals for financing infrastructure projects from land value uplift.

The government has agreed to establish a joint taskforce bringing together the GLA, TfL, London Councils, HM Treasury, Department for Transport (DfT) and Department for Communities and Local Government (DCLG) to explore the options for piloting a Development Rights Auction Model (DRAM) on a major infrastructure project in London.

Should a pilot of DRAM be agreed, it will be jointly evaluated by London and the government to review its effectiveness and determine whether a similar model could be applied to other infrastructure projects.”

I can’t presently relate the DRAM initiative to the reference in the Housing White Paper (quoted above) to establishing land value via auctions in CPO situations, following possession. What on earth is that a reference to?
TfL’s February 2017 paper has various other more radical policy suggestions to capture infrastructure-related land value increases, including changes to SDLT, to retention of business rates and a new “land value capture charge” This would “capture a proportion of the premium paid to landowners by new purchasers or tenants of residential property for access to new transport facilities“. (Shall we call a tax a tax though, folks?).
There is also a current RTPI research project The Use of Alternative Land Value Capture Mechanisms to Deliver Housing in England and Wales.
Benchmark land values in viability appraisal

One of the most contentious issues in relation to developers’ project viability appraisals (carried out for the purposes of seeking to agree reductions in the scale of section 106 affordable housing and other obligations) is the benchmark land value that should be applied as a cost input. Clearly it should not be the actual market value (which would lead to circularity) but equally it should not be just the existing use value (EUV), which would not reflect reality and would result in schemes being assumed to be viable when in reality they would not be because the land would not be made available at the assumed benchmark value.
The 2012 RICS guidance, Financial Viability In Planning , advises that it is appropriate to take into account alternative use value (AUV):
“Site Value should equate to the market value subject to the following assumption: that the value has regard to development plan polices and all other material planning considerations and disregards that which is contrary to the development plan.”
As summarised in my 1.12.16 blog post , the London Mayor is seeking to move away from accepting AUV, preferring an “EUV+” approach, ie existing use value “plus premium”, with the methodology for calculating the premium left undefined, and therefore a recipe for continuing debate.
In practice, surely any attempt to pitch EUV+ at less than AUV is equivalent to restricting the application of the “no scheme world” rule – a policy intervention to apply that shortfall for public purposes. Except that with viability negotiations, it could of course lead to development simply not proceeding. Is there then a stalled scheme and grounds for compulsory purchase? The extent to which this sort of economic intervention is acceptable needs to be carefully limited and defined.
CIL reform

There have been rumours that the reason why the Government parked in February any response to the CIL review team’s report was that the new ministerial team had started to think about whether in fact any replacement for CIL should encapsulate land value concepts (memories of the planning gain supplement anyone?). There is certainly no mention of CIL in the Conservative manifesto. Certainly the policy priorities as between CIL and affordable housing need to be reconsidered.

If we weren’t in such dire straits, we could of course go back to a position where the state invested in social housing and funded public services without weighing the costs so heavily on land owners and developers. In the meantime, over the next five years we’ll definitely see answers emerge to those questions I posed back at the beginning of this overlong post.
Simon Ricketts 20.5.17

Personal views, et cetera

Newmarket: Horses, Houses, Politics, Planning

Let’s please constrain the circumstances in which the Secretary of State can intervene in planning decision-making. Who is going to carry on investing in housing land promotion when, frankly, the outcome of betting on the horses can be more predictable?
The day before the Supreme Court’s ruling in Suffolk Coastal (where the Supreme Court justices examined the semantic intricacies of paragraphs 49 and 14 of the NPPF, extolled the virtues of expert inspectors and recognised the need to boost the supply of housing), judgment was handed down in Moulton Parish Council and the Earl of Derby v Secretary of State (Gilbart J, 9 May 2017).

The case concerned the controversial proposals by the Earl of Derby for residential development in Newmarket, in the heartland of the British horseracing industry.
The Secretary of State had in 2012 dismissed an appeal against refusal by Forest Heath District Council of planning permission for mixed-use development including up to 1,200 dwellings, 36,000 sq m of B1 employment floorspace. Whilst various representatives of the horse-racing industry had argued the scheme would harm their interests, through the traffic and other effects arising, the appeal was only dismissed on the ground that the scheme was premature, in that due to its strategic implications, it should be considered through the development plan process.
There had been a policy in the local plan that included an urban extension for 1,200 dwellings north east of Newmarket that included the appeal site. However, the grouping of horseracing interests had succeeded in quashing that policy and related housing provision policies in Save Historic Newmarket Limited v Forest Heath District Council (Collins J, 25 March 2011).
The Council carried out a “single issue review” of its housing policies, dealing with overall housing provision and distribution, and with site allocations and published a preferred options document for consultation. The review proposed a mixed use development, including 400 dwellings, on part of the previous site, and the Earl of Derby brought forward a planning application for that level of development. The application was resolved to be approved by the district council (after overcoming an attempted judicial review by objectors who sought unsuccessfully to overturn a negative EIA screening opinion) but it was called in by the Secretary of State on 11 July 2014. The inquiry took place in April and May 2015, the inspector’s report was dated 9 July 2015 and yet the Secretary of State didn’t issue his decision until 31 August 2016. The Secretary of State rejected the application for a number of reasons, including concerns as to highway safety, raised again in no uncertain terms by those representing the horseracing industry.
So, a year for the Secretary of State to consider the inspector’s report and over two years since his intervention in the local decision-making process! One might think that the decision, which rejected the inspector’s recommendation that planning permission be granted, would be bullet-proof in its reasoning after such a delay. Hmm. The decision has been quashed by Gilbart J following a challenge brought by two parties, one unsurprisingly being the appellant, the Earl of Derby, but the other unusually being a parish council, Moulton, concerned at the additional pressure for development that would arise in its parish if the proposals do not proceed at the application site – after all, housing has to go in someone’s back yard, somewhere, sometime, doesn’t it?
The application will now have to be redetermined.
I want to consider the following questions which arise out of this sorry but not unusual tale:
– what went wrong in the Secretary of State’s reasoning?

– why did his decision take so long?

– what is the role in practice of lobbying and political pressure in ministerial decision-making?

What went wrong in the Secretary of State’s reasoning?

The claimants’ successful grounds of challenge were that the Secretary of State:
– failed to apply his own policies set out in the NPPF; and

– failed to have regard to his own previous decision “where he had reached conflicting conclusions to those he now holds on matters relating to highway safety, or has reached a conclusion on safety without evidence, or which is irrational“.

A world away from the complexities facing the Supreme Court in Suffolk Coastal, the Secretary of State’s mistake on the first ground was an obvious one. The inspector reported that there were no up to date development policies in relation to housing provision and that therefore paragraph 14’s “tilted balance” in favour of sustainable development applied. However, the Secretary of State fails to address this material consideration at all in his decision letter.
Gilbart J: “In this particular decision, it is plain that the effect of the tilted balance in NPPF [14] was of considerable importance. It was one of the eight main issues identified by the Inspector, and much debate between the parties. While the effect of the change in the housing supply position after the Inspector’s report had been received could have affected the weight to be given to the arguments about the 5 year supply, the issue relating to the important absence of housing policies remained. One of its particular contexts was that this site would meet important objectives of policy in terms of sustainability, as well as the fact that it was best and most versatile agricultural land. This is a local authority area where more land has to be found for housing, as suggested by the emerging local plan allocations.”
In relation to the second ground, the inspector and Secretary of State had found in the case of the larger scheme that highway safety problems were not likely to arise. There was no explanation as to his volte face.

Gilbart J: “There is not a single reference by the SSCLG to the previous decision, let alone to the previous Inspector’s Report. In my judgement, the very least that was required of the SSCLG was to acknowledge the fact of the previous conclusions, and face up to the fact that he was being asked to reach conclusions which on any view were entirely at odds with the those he had reached in 2012. NHG had not held back in its case at inquiry that the first decision was wrong on this issue, with which contention the Claimants (and FHDC) disagreed, as did the Second Inspector. But despite that, it received no mention or consideration at all in the Decision Letter.”

How wasteful for such an important decision to fall at two basic hurdles – hardly Brecher’s Brook, were they? A single careful sentence in each case would in my view have saved the decision letter.
Why did the Secretary of State’s decision take so long?

Call-in in this case led to a delay of over two years before his decision was received and the re-determination process will now add significantly to that delay, at no-one’s cost save for the Earl of Derby and indeed those in housing need.
Gilbart J gives this explanation for the delays that occurred after the inspector’s report was received by the Secretary of State on 9 July 2015:
“About four months after the inquiry had finished the [Newmarket Horsemen’s Group] elected to make further representations in September 2015, as did the local member of Parliament the Rt Hon Matthew Hancock MP. The SSCLG circulated them for comment at the end of October 2015. He then circulated the comments he had received.

In February 2016, the Planning Consultants for the Claimant Lord Derby made representations, which were also circulated for comment. The responses received were also circulated. In April 2016, the SSCLG circulated the representations he had received, and also invited comment on the then recent Court of Appeal decision in Suffolk Coastal District Council v Hopkins Homes Ltd & Anor [2016] EWCA Civ 168, circulating the further responses on 5th May 2016.”

So we can see that the problem comes down to a combination of a slow decision-making process and the opportunities that gives third parties to seek to bolster their case with post-inquiry representations, relying on the inevitability of changing circumstances over time; indeed, the longer the decision-making takes, clearly the more vulnerable it is to such interventions. No doubt, the ministerial changes that followed the June 2016 referendum were another factor but my basic principle still holds, in my view.

It may be said that the Secretary of State needs to be allowed sufficient time to make a considered decision. But the outcome of the challenge demonstrates that time does not ensure quality of outcome. A study as to what was happening week by week in relation to the decision, from July 2015 to August 2016 would surely be instructive.
What is the role in practice of lobbying and political pressure in ministerial decision-making?

The principles to be applied by the Secretary of State in deciding to call in an application for his own determination have always been left extremely flexible. As summarised in a helpful July 2016 House of Commons library briefing paper on calling in planning applications , the 1999 ‘Caborn principles’ still apply:

“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 “.

The list of recent call-in decisions is a pretty long one.

A decision to call in or not to call in an application is barely justiciable in practice (as long as properly reasoned to a basic extent) given the breadth of the criteria.
In this case the reasons stated in the inspector’s report as to why the Secretary of State had called in the application (for a relatively limited amount of development, against the background of an emerging supportive local development plan policy) were apparently:
“3.1 The proposal may have significant long-term impact on economic growth and meeting housing needs.

3.2 The proposal could have significant effects beyond its immediate locality.”

…which tell us nothing.
This obviously leads to speculation, however ill-founded. The Independent for instance inevitably ran a story, “Tory minister lines up with racing royalty against new homes” on 16 August 2014.

The political pressure being applied can surely not be doubted however. Recall as well that post-inquiry representations were being made against the scheme by the local MP, Matthew Hancock.
Even when these representations are made openly, one worries as to the further politicisation of this quasi-judicial process. But often there is suspicion that there are informal as well as formal attempts to influence ministerial decisions. The judiciary has recently of course in Broadview Energy Developments Limited v Secretary of State (Court of Appeal, 22 June 2016) deprecated informal lobbying attempts by MPs, in that case Andrea Leadsom MP’s attempts to stop a wind farm scheme, with a conversation in the Commons tea-room and numerous emails from her to the minister, including one referring to her “badgering [him] in the lobby”. Longmore LJ in that case indicated that he “would not endorse that part of the judge’s judgment [at first instance] in which he said that lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP with its implication that such lobbying was permissible even when the Minister is making a quasi-judicial decision in relation to a controversial planning application. MPs should not, with respect, be in any different position from other interested parties.”

We have seen the influence that individual MPs can bring to bear on ministers, with MP for Sutton Coldfield, Andrew Mitchell MP, having brought about the Secretary of State’s holding direction (now lifted) in relation to the Birmingham development plan, as a result of his concerns as to proposed green belt housing allocations in his consistency.

It may be said that planning cannot be separated from politics but it is depressing to see. It was also eyeopening to see that of the seven decisions issued by the Secretary of State in his last day before purdah, with the parties suddenly in pre-election mode, six were to refuse planning permission. When the decision as to whether a major scheme goes ahead is not to be taken at local level, with the promise of a quasi-judicial assessment, how do we ensure that the role of the inspector is respected: the careful evidence taking and testing at inquiry and neutral evaluation of that evidence as against the statutory criteria? Our role becomes that of guessers as to how the politics, against the deployed legal tactics on all sides, will play out.

This is how the next Secretary of State could make a difference: fewer call ins and fewer recovered decisions, but clearer guidance as well as renewed attempts to ensure that up to date local plans are in place. But what are the odds?
Simon Ricketts 13.5.17
Personal views, et cetera

NPPF Paras 49 & 14: So What Is The Supreme Court Really Saying?

The Supreme Court’s judgment in Suffolk Coastal District Council v Hopkins Homes and Richborough Estates v Cheshire East Borough Council, handed down on 10 May 2017, has been keenly anticipated but what does it mean for the development industry?
The issue

The issue at stake is subtle but crucial for promoters of residential development in areas that cannot show five years’ supply of deliverable housing sites. In such circumstances, paragraph 49 of the NPPF advises that “[r]elevant policies for the supply of housing should not be considered up-to-date” meaning that what is called the “tilted balance” in the second part of paragraph 14 applies: planning permission should be granted unless:

* “ any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

* specific policies in this Framework indicate development should be restricted”.

Footnote 9 of the NPPF gives examples of “specific policies”, such as green belt policies or policies relating to particular environmental designations.

There have been various attempts by the courts to resolve what the phrase “relevant policies for the supply of housing” actually means:

* Should it be given a narrow interpretation, limiting it to policies that deal with the quantum and distribution of new housing, or a wider interpretation, including policies whose effect is to restrict housing development in certain parts of the authority’s area, for example gaps between settlements or land subject to particular landscape designations?

* Once those “relevant policies” have been identified, are they to be given limited weight, or no weight?

The two cases

The Supreme Court (as did the Court of Appeal previously) had before it two separate cases raising these issues.

The Cheshire East case had first come before Lang J in the High Court. Richborough Estates had appealed against Cheshire East Borough Council’s non-determination of its planning application for 170 (later reduced to 146) homes between Willaston and Crewe. The inspector allowed the appeal. He concluded that the council was unable to demonstrate five years’ housing land supply and that policies in relation to “open countryside”, “green gap” and “housing in the open countryside” were relevant policies for the supply of housing to be given reduced weight by virtue of paragraph 49. Lang J quashed the decision, on the basis that the inspector had erred in treating the “green gap” policy as subject to paragraph 49.
The Suffolk Coastal case had first come before Supperstone J in the High Court. Suffolk Coastal District Council had refused planning permission for a development of 26 houses in Yoxford. The developer, Hopkins Homes, had appealed and the inspector dismissed the appeal. Notwithstanding a relatively up to date local plan, the inspector had found that it was “very unlikely that a five years’ supply of housing land could now be demonstrated”. He considered that none of the policies in the plan relating to the boundary of settlements, landscape, townscape, settlement hierarchy and the character of key and local service centres were “relevant policies for the supply of housing”. He also found that the proposal would have an unacceptable effect on historic parkland. Supperstone J ruled that the inspector had erred in thinking that paragraph 49 only applied to “policies dealing with the positive provision of housing” and also considered he had failed properly to assess the significance or otherwise of the historic parkland as a non-designated heritage asset.

The Court of Appeal

Both cases came before the Court of Appeal in January 2016 at a conjoined hearing. Lindblom LJ gave the judgment of the court on 17 March 2016 and found for the developers in both cases. He gave the phrase in paragraph 49 the “wider” interpretation, construing the words as meaning relevant policies “affecting the supply of housing”. He considered that it was then for the decision maker to determine the weight that should be applied to these policies, deemed out of date.

The Supreme Court

The Supreme Court only hears cases that raise points of law of general public importance and this was the first time that issues concerning the NPPF had come before it, Sullivan LJ having granted permission on 1 May 2016. The case was heard by five Supreme Court justices, Lord Carnwath, Lord Neuberger, Lord Clarke, Lord Hodge and Lord Gill, at a hearing on 22 and 23 February 2017. Lord Carnwath gave the lead judgment for all of the justices save for Lord Gill who gave a separate judgment.

Lord Carnwath and Lord Gill are the two justices most familiar with planning law south and north, respectively, of the border. Lord Gill indeed has been editor of the Scottish Planning Encyclopedia. This was his last case before retirement. His separate judgment provides a wider commentary on the proper role of the planning system in delivering sufficient housing, alongside that of Lord Carnwath, himself a former leading advocate at the planning bar. Carnwath, Gill, Sullivan, Lindblom: these are judges who understand our subject area and its particular complexities.
As set out by Lord Carnwath at the beginning of his judgment, the appeals provided the opportunity for the court “not only to consider the narrow issues of interpretation of para 49, but to look more broadly at issues concerning the legal status of the NPPF and its relationship with the statutory development plan.”
The following points may be of particular interest:

Legal status of the NPPF

There was some debate at the hearing as to the legal status of the (non-statutory) NPPF and as to the source of the Secretary of State’s power to issue national policy guidance as to the determination of applications and appeals, which could have led the court in an unanticipated direction. However’ despite the lack of any statutory basis (in relation to the determination of applications and appeals, as opposed to his role in relation to plan-making), the court pragmatically held that he did indeed have the power, which arose “expressly or by implication, from the planning Acts which give him overall responsibility for oversight of the planning system.” (Lord Carnwath, paragraph 19)

Interpretation of the NPPF

The court stressed that it is important not to overstate the scope of the Secretary of State’s policy-making role. The NPPF is no more than “guidance” and is no more than a “material consideration” for the purposes of section 70(2) of the 1990 Act: “It cannot, and does not purport to, displace the primacy given by the statute and policy to the statutory development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme”. (Lord Carnwath, paragraph 21)

The distinction between interpreting the meaning of words (a matter for the courts) and the application of guidance (exclusively a matter for the planning authority and inspectors) is stressed in Lord Gill’s separate judgment.

The interaction of law and policy

The Supreme Court had previously determined in Tesco Stores Limited v Dundee City Council (2012) that “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context”. This has led to concerns (expressed by counsel appearing in these proceedings) “about the over-legalisation of the planning process, as illustrated by the proliferation of case law on paragraph 49 itself…This is particularly unfortunate for what was intended as a simplification of national policy guidance, designed for the lay reader”. (Lord Carnwath, paragraph 23).

The court made it clear that “it is important that the role of the court is not overstated”. There was a specific development plan policy under consideration in Tesco and “some policies in the development plan may be expressed in much broader terms, and may not require, nor lend themselves to, the same level of legal analysis”. (Lord Carnwath, paragraph 24). “It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light…Furthermore, the courts should respect the expertise of the specialist planning inspectors and start at least from the presumption that they will have understood the policy framework correctly” and the courts have “cautioned against undue intervention” in policy judgments within specialist tribunals’ areas of competence. (Lord Carnwath, paragraph 25). Applicants for judicial review should “distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy.” (Lord Carnwath, paragraph 26).

The meaning of NPPF paragraph 14

The court drew the analogy with a policy for the supply of employment land which may become out of date because of the arrival of a major new source of employment in the area. Whether it is out of date, and what should be the consequence, are matters of planning judgement, including any effect on other related policies, for example for transport. Other competing policies may need to be given less weight, but “again that is a matter of pure planning judgement, not dependent on issues of legal interpretation”. (Lord Carnwath, paragraph 55). This should also be the approach in relation to housing policies deemed “out of date” under paragraph 49. “It also shows why it is not necessary to label other policies as “out of date” merely in order to determine the weight to be given to them under paragraph 14. As the Court of Appeal recognised, that will remain a matter of judgment for the decision-maker”. (Lord Carnwath, paragraph 56).

This is vital stuff! It changes what has been the orthodox approach to the paragraph 49/14 conundrum, rendering less important the analysis of which policies are “relevant policies” and bringing us back to a sensible balancing of the issues and allowing the need to secure an adequate supply of housing land to be taken into account in determining the weight to be applied to a policy, even for those policies not specifically caught by paragraph 49.

Lord Gill’s separate judgment stresses the importance that the NPPF places on boosting the supply of housing. “The message to planning authorities is unmistakeable”. (Lord Gill, paragraph 77). He refers to “the futility of authorities’ relying in development plans on the allocation of sites that have no realistic prospect of being developed within the five year period”. (paragraph 78).

In passing it should be noted that Lord Carnwath and Lord Gill both read into the footnote 9 examples of protective designations in the NPPF, references to the related development plan policies. Lord Gill notes that the “rigid enforcement of such policies may prevent a planning authority from meeting its requirement to provide a five-years supply” (paragraph 79).

The meaning of NPPF paragraph 49

The meaning of “relevant policies for the supply of housing” on this analysis becomes less important. The court preferred the “narrow” interpretation, namely “housing supply policies”. “However, this should not be seen as leading, as the lower courts seem to have thought, to the need for a legalistic exercise to decide whether individual policies do or do not come within that expression.” If there is a failure to provide for a five year housing land supply “it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the overly-restrictive nature of other non-housing policies.” (Lord Carnwath, paragraph 59). The shortfall is enough to trigger the “tilted balance”.

Lord Gill puts it like this: “If a planning authority that was in default of the requirement of a five-years supply were to continue to apply its environmental and amenity policies with full rigour, the objective of the Framework could be frustrated”. (paragraph 83).

Application of the principles to the cases

On this basis, the inspector was wrong to adopt a wider interpretation to the policies at issue in the Cheshire East case. However, “that did not detract materially from the force of his reasoning…He was clearly entitled to conclude that the weight to be given to the restrictive policies was reduced to the extent that they derived from “settlement boundaries that in turn reflect out-of-date housing requirements”. The permission was upheld.

On this basis, the inspector in the Suffolk Coastal case had embarked on an “inappropriate and unnecessary” exercise in distinguishing between policies which affected the supply of housing and those which did not. He should not have given the weight that he did to the settlement boundary policy given that it was “to an extent at least, no more than the counterpart of the housing policies.” The decision to dismiss the appeal was quashed and will need to be re-determined.

Concluding thoughts

This is the highest court in the land telling us to be less legalistic about the way we frame our arguments as to the application of national and local policies to development proposals. The exercise is not so much a close technical examination as to whether policies are “relevant policies” for the purposes of paragraph 49 but a weighing up of the consequences of a housing supply deficit against policies which are restricting that supply. In the Cheshire East case it is noteworthy that the court considered that it was right that the green gap policy was given less weight – not because it was a paragraph 49 policy (they found that it was not) but because it reflected out-of-date housing requirements.

We have all perhaps been guilty, spurred on particularly by the Supreme Court itself in Tesco v Dundee, of seeking too often to reduce matters of planning judgment to narrow points of legal interpretation. It is a habit we need to break.
The court stressed the expert role of inspectors. Of course not all decisions are taken by inspectors. Is the same latitude to be given to local planning authorities’ decisions, whether given on or against officers’ recommendations, or to those of the Secretary of State? The point is unaddressed, given that the only two situations before the court were decisions taken by inspectors.
If the advice of the court leads to fewer judicial reviews and statutory challenges, that is surely to be welcomed.
The previous Government has of course been consulting on potential revisions to the NPPF. I would suggest that the new Government reflects on the approach that it should take in the light of this judgment. The amendments that the Government had proposed to paragraph 14 may not give rise to undue concern but shouldn’t more thought be given to whether it is right or not further to complicate paragraph 49 with reference to a three years’ supply safety net where a neighbourhood plan is in place containing defined housing policies, as proposed in the December 2016 written ministerial statement? Isn’t this precisely the over-prescriptive approach being deprecated by the court – and one driven perhaps by a concern that communities were seeing local designations in some way “switched off” or automatically being given less weight through being treated as “relevant policies”? This should no longer be feared. Instead, a sensible balancing exercise will need to be undertaken.
Lastly, the relationship, in the statutory presumption, as between the adopted development plan and other material considerations, has been sought by some judges to be rigidly applied, in a way which does not sit well with this ruling. I am thinking particularly of Green J’s judgment in East Staffordshire Borough Council v Secretary of State and Barwood Strategic Land (22 November 2016) an appeal against which is due to be heard by the Court of Appeal (probably again with Lindblom LJ as the lead judge) on 25 May 2017. It will be fascinating to see this early application of the Supreme Court’s thinking.
Simon Ricketts 10.5.17
Personal views, et cetera

(Town Legal LLP acted for Richborough Estates in this case. Special personal thanks from me to Christopher Young and James Corbet Burcher, both of No 5 Chambers, and to my colleague Ricardo Gama).

Slow Train Coming: Strategic Rail Freight Interchanges In The South East

The planning system doesn’t just fail to provide homes. There are clear lessons to be learned from the unstructured and inadequate approach that successive governments have applied to securing appropriate strategic rail freight interchange developments (SRFIs, in the jargon) to serve London and the south east. That approach has now wasted decades without a spade in the ground, despite millions of pounds having been spent, countless inquiries and High Court proceedings and no doubt a lifetime of worry for those potentially affected. The difficulties with SRFIs also illustrate that the problems aren’t over even when planning consent is obtained – issues of commercial viability and land control are as fundamental.
This blog post summarises where the three leading contenders have reached: Goodman’s Colnbrook Slough scheme, Helioslough’s former Radlett Aerodrome scheme and Roxhill’s Howbury Park scheme, all in the green belt. It is a long story but that’s why I have tried to tell it.

What is an SRFI?

An SFRI is defined in the Government’s National Networks national policy statement January 2015 as a “large multi-purpose rail freight interchange and distribution centre linked into both the rail and trunk road system. It has rail-served warehousing and container handling facilities and may also include manufacturing and processing activities”.

What is the consenting process?

If the proposal falls within the criteria in section 26 of the Planning Act 2008 (eg a site area of at least 60 hectares, to be connected to national rail network and capable of handling (a) consignments of goods from more than one consignor and to more than one consignee, and (b) at least four goods trains a day), it falls under the NSIP procedure.

The only SRFIs so far consented as NSIPs have been Prologis’ Daventry International Rail Freight Terminal (3 July 2014) and Roxhill’s East Midlands Gateway Rail Freight Interchange (12 January 2016) (the latter against the examining authority’s recommendations). Goodman’s East Midlands Intermodal Park, Roxhill’s Northampton Gateway Rail Freight Interchange, Ashfield Land’s Rail Central Strategic Rail Freight Interchange (also Northampton) and Four Ashes’ West Midlands Interchange are all at pre-application stage.

An NSIP can of course include associated development. There can be uncertainties as to the extent of warehousing that is justified and the degree to which commitments are to be given as to its rail-connectedness. For applications made from 6 April 2017, up to around 500 homes may also be included (see section 160 of the Housing and Planning Act 2016 and the Government’s March 2017 guidance).

If the proposal doesn’t meet the NSIP criteria, it will need to proceed by way of a traditional planning application. The NSIP process has its pros and cons. It is interesting to note that the three schemes we will be looking at in this blog post have been proceeding by way of a planning application, with the site areas of the Colnbrook and Howbury Park schemes being 58.7 hectares and 57.4 hectares respectively (given an NSIP threshold of 60 hectares that looks like a deliberate “serve and avoid” to me…) and with the Radlett application process having predated the switching on of the 2008 Act.

The need case

The National Networks NPS sets out the need for SRFIs in paras 2.42 to 2.58:

“2.53 The Government’s vision for transport is for a low carbon sustainable transport system that is an engine for economic growth, but is also safer and improves the quality of life in our communities. The Government therefore believes it is important to facilitate the development of the intermodal rail freight industry. The transfer of freight from road to rail has an important part to play in a low carbon economy and in helping to address climate change.

2.54 To facilitate this modal transfer, a network of SRFIs is needed across the regions, to serve regional, sub-regional and cross-regional markets. In all cases it is essential that these have good connectivity with both the road and rail networks, in particular the strategic rail freight network (see maps at Annex C). The enhanced connectivity provided by a network of SRFIs should, in turn, provide improved trading links with our European neighbours and improved international connectivity and enhanced port growth.

“2.56 The Government has concluded that there is a compelling need for an expanded network of SRFIs. It is important that SRFIs are located near the business markets they will serve – major urban centres, or groups of centres – and are linked to key supply chain routes. Given the locational requirements and the need for effective connections for both rail and road, the number of locations suitable for SRFIs will be limited, which will restrict the scope for developers to identify viable alternative sites.  

2.57 Existing operational SRFIs and other intermodal RFIs are situated predominantly in the Midlands and the North. Conversely, in London and the South East, away from the deep-sea ports, most intermodal RFI and rail-connected warehousing is on a small scale and/or poorly located in relation to the main urban areas.  

2.58 This means that SRFI capacity needs to be provided at a wide range of locations, to provide the flexibility needed to match the changing demands of the market, possibly with traffic moving from existing RFI to new larger facilities. There is a particular challenge in expanding rail freight interchanges serving London and the South East.”

Annex C strategic rail freight network map

These facilities are important for our economy, and for reducing vehicle emissions (not that there is any reference to this, or indeed any other supra-local planning interventions, in the Government’s draft air quality plan published on 5 May 2017). Unfortunately, the strategy in the NPS is very general. Whilst there are the references to London and the South East in the passages above, this is even less specific than the former Strategic Rail Authority’s Strategic Rail Freight Interchange policy March 2004, much argued over at inquiries, which asserted that “required capacity would be met by three or four new Strategic RFI” in London and the South East and that the “qualitative criteria to deliver the capacity mean that suitable sites are likely to be located where the key rail and road radials intersect with  the M25.”

Currently it is down to the private sector to identify sites which may meet the NPS criteria, with a wary eye on what other sites may be in the frame – a game not for the faint-hearted, meaning a very limited pool of potential promoters.

Since the NPS, we have had DfT’s Rail Freight Strategy 13 September 2016:

Para 53 “This Rail Freight Strategy will not set out proposals for new enhancements to the network nor specify in detail the freight paths that will be needed in future. These issues are being considered by DfT on a longer timescale as part of the long-term planning process for the rail network, which will consider priorities for the railway beyond the current control period (from 2019). To inform the industry’s advice to DfT as part of this process, Network Rail is currently consulting on a more detailed Freight Network Study. This considers the requirements of the rail network over the next 30 years and is intended to support the series of Route Studies that have been published or are under development by Network Rail.”

Will we see an amended National Networks NPS in the foreseeable future so as to give greater direction? I doubt it.

So now let’s look at the most likely candidates to serve London and the South East

Colnbrook

Those with long memories may recall Argent’s LIFE (London International Freight Exchange) scheme proposed on land to the north of the A4 at Colnbrook, near Slough. The then Secretary of State dismissed an appeal against refusal of planning permission on 20 August 2002, stating:

“The central issue remains […] where to strike the balance between Green Belt and sustainable transport interests. The proposal would be inappropriate development in the Green Belt and would harm the openness of the Green Belt, at the same time there are positive aspects including some sustainable transport benefits”.

 “The Secretary of State continues to support the principle of encouraging more rail freight, but shares the Inspector’s judgement that the balance of benefits and disbenefits is against the LIFE scheme as currently proposed and that the general presumptions against inappropriate development in the Green Belt should apply”.

Goodman are now promoting a smaller SRFI on part of the site. Their scheme is now imaginatively called SIFE (Slough International Freight Exchange) and was the subject of a planning application in September 2010. It was refused by Slough Borough Council and an inquiry was due to take place into Goodman’s appeal in October 2012. However, the inquiry was then put in the sidings whilst the then Secretary of State decided whether to re-open an inquiry into the Radlett SRFI scheme, which he considered might have significant implications for SIFE. As it happened, due to delays in that inquiry process (of which more later), the SIFE inquiry was not rescheduled until The Radlett decision letter was issued in July 2014.

After a ten day inquiry in September 2015, the Secretary of State on 12 July 2016 dismissed Goodman’s appeal against refusal by Slough Borough Council of planning permission for SIFE. The Secretary of State addresses the extent to which there is a need for all three facilities (SIFE Colnbrook; Radlett, and Howbury Park):

“24. The Secretary of State has carefully considered the Inspector’s reasoning about need at IR12.88 – 12.103 and accepts the Inspector’s conclusion that the current policy need for a regional network has not been overcome by the SRFI at Radlett and SIFE is able to be regarded as a complementary facility as part of a wider network (IR12.104).

25. With regard to the Inspector’s analysis of other developments and sites at IR 12.105 – 12.106, the Secretary of State agrees that the NPS makes clear that perpetuating the status quo, which means relying on existing operational rail freight interchanges, is not a viable option.

26. The Secretary of State agrees with the Inspector that there is a reasonable probability that Radlett will be operational in 2018 and there is the prospect of Howbury Park being progressed to implementation. In addition, rail connected warehousing is under development in Barking. On the downside, the geographical spread is uneven. There is a noticeable gap in provision on the west side of London, with Radlett being complementary to rather than an alternative to SIFE. SIFE would contribute to the development of a network of SRFI in London and the South East and a wider national network in accordance with the policy objective of the NPS (IR12.107).”

However he goes on to reach the following conclusions as to whether there are very special circumstances justifying inappropriate development in the green belt:

“13. The Secretary of State agrees with the Inspector’s comments at IR12.8, and like the Inspector, concludes that the appeal proposal would be inappropriate development in the Green Belt and that it is harmful as such. As the proposal amounts to inappropriate development he considers that, in the absence of very special circumstances, it would conflict with national policies and with the CS. Like the Inspector, the Secretary of State considers that the NPS does not change the policy test for SRFI applications in the Green Belt or the substantial weight to be attached to the harm to the Green Belt (IR12.8). For the reasons given by the Inspector at IR12.9 – 12.11, the Secretary of State agrees with the Inspector’s conclusion (IR12.12) that the proposed development would result in a severe loss of openness.

14. The Secretary of State agrees with the Inspector that the introduction of major development on the site, even if enclosed within well-defined boundaries, would not assist in checking sprawl and hence would conflict with a purpose of the Green Belt (IR12.13). For the reasons given by the Inspector at IR12.14, the Secretary of State agrees that the proposal would not be compatible with the purpose of preventing neighbouring towns merging into one another. The Secretary of State accepts the Inspector’s conclusion that the proposed development would encroach into the countryside. He agrees too that this conflict is not overcome by the proposed creation of new habitats and other aspects of mitigation in existing countryside areas (12.15). The Secretary of State agrees with the Inspector’s overall conclusion that these conflicts should be afforded substantial weight (IR12.18). The Inspector acknowledges that the proposed SRFI development’s location in the Green Belt may well be an optimum solution in relation to existing patterns of distribution activity, but like the Inspector, the Secretary of State concludes that this does not reduce the actual harm that would occur (IR12.19)”

His overall conclusions:

“40. The Secretary of State accepts that the most important benefit of the proposal is the potential contribution to building up a network of SRFIs in the London and South East region, reducing the unmet need and delivering national policy objectives. In addition, there is the prospect of SIFE being complementary to Radlett and other smaller SRFI developments and improving the geographical spread of these facilities round Greater London. In this context, the Secretary of State accepts that the contribution it would make to meeting unmet need is considerable.

41. He accepts too that SIFE would comply with the transport and location requirements for SRFIs to an overall very good standard. He acknowledges that sites suitable for SRFIs are scarce and the difficulty in finding sites in the London and South East region. On account of this factor, and the standard of compliance achieved, he affords meeting the site selection criteria significant weight. No less harmful alternative site has been identified in the West London market area, a factor which he affords considerable weight. Attracting less but nevertheless moderate weight are the economic benefits, the reduction in carbon emissions and improvements.

42. In common with the Inspector in her conclusion, the Secretary of State has been persuaded by the irreparable harm that would be caused to this very sensitive part of the Green Belt in the Colnbrook area, leading to the high level of weight he attaches to this consideration. Overall, the Secretary of State concludes that the benefits of the scheme do not clearly overcome the harm. Consequently very special circumstances do not exist to justify the development. Furthermore, he finds that planning conditions would not be able to overcome the fundamental harms caused to the Green Belt, Strategic Gap and Colne Valley Park and the open environment enjoyed by the local community. In addition, he has concluded that the proposal does not have the support of the NPS because very special circumstances have not been demonstrated.”

Goodman challenged the decision on the basis that it was wrong for the Secretary of State, in adjudicating the “very special circumstances” test, to give no weight to Goodman’s argument that it was inevitable that a Green Belt location is essential for meeting the need for an SRFI in this location. However the decision has been upheld: Goodman Logistics Developments (UK) Ltd v Secretary of State (Holgate J, 27 April 2017). Holgate J stated:

“It should be noted that Goodman did not advance the extreme argument that the need for another SRFI to serve London and the South East was such that it was inevitable that a a Green Belt site would have to be released for that purpose. There is no policy support for any such proposition. The NPS does not suggest that the need for a network of SFRIs, or for any particular SFRI, is a need to be met come what may, irrespective of the degree of harm which may be caused, or indeed the degree of need for an SRFI in a particular region. Instead, Goodman relied upon an “inevitability” which was qualified. The claimant argued that it is inevitable that another SRFI to serve the London and South East region will be located on a Green Belt site and harm to the Green Belt will occur, if the need for such a SRFI is to be met. The merits of the “inevitability” argument put forward by Goodman were therefore dependent upon the decision-maker’s assessment as to what importance or weight should be attributed to that need and whether that need should indeed be met after taking into account all the harm that would result.”

He goes on:

“The degree of harm that would result from the appeal proposal is only inevitable (in one sense) if the decision-maker concludes that the need for the SRFI and any other benefits flowing from the proposal are of such weight that the balance comes down in favour of granting planning permission. It is not in fact inevitable that the balance will be struck in that way

But if the “need” for SRFIs is not allowed to amount to “very special circumstances” for the purposes of green belt policy, and if there is room for a balancing of the seriousness of that need as against the degree of harm that would be caused, does this lead to unnecessary uncertainty right until the conclusion of the decision making process? Couldn’t the suitability in principle of development in the green belt have been resolved at an earlier stage, preferably via the national policy statement? Similarly, the uncertainties as to the inter-relationship between the three schemes. Why was a decision on Radlett (positive or negative) allowed to become a prerequisite to determining SIFE?

So what next for the site? As it happens, the proposed new runway at Heathrow Airport in combination with associated mitigation proposals and associated development would in fact take up most of the site in any event. Is this planning process now at least partly about establishing “no scheme world” value?

Radlett

Helioslough’s proposal for an SFRI on the former Radlett Aerodome site has a similarly lengthy – and even more convoluted – history. Two appeals had been dismissed for rail freight distribution proposals on the site, which again is in the green belt. The second appeal decision, dated 7 July 2010, turned on a conclusion by the Secretary of State that the Colnbrook site could be a less sensitive site than the Radlett site for an SRFI and that therefore “very special circumstances” for the development of the Radlett site had not been made out.

Helioslough successfully challenged that decision. On 1 July 2011 HH Judge Milwyn Jarman QC ordered that the Secretary of State‟s decision be quashed, holding that the Secretary of State had misconstrued the Strategic Gap policy in Slough’s. Core Strategy and consequently had failed to treat that as an additional policy restraint over and above the Green Belt designation. So the appeal fell to be redetermined by the Secretary of State.

Prior to redetermining it, the Secretary of State consulted with the parties as to whether to conjoin a re-opened inquiry with the inquiry that was to be held into the SIFE Colnbrook appeal. On 14 December 2012 he notified the parties that we was not going to re-open the inquiry but determine it on the basis of the evidence already before him. On 20 December 2012 he issued a letter indicating that he was minded to allow the appeal, subject to completion of a section 106 agreement.

St Albans City and District Council sought to challenge by way of judicial review the Secretary of State’s decision to not to re-open the inquiry. However that challenge was refused permission by Patterson J on 14 June 2013 (and a subsequent renewal application before Collins J failed).

As it happened, the “minded to grant subject to section 106 agreement” indication was unsatisfactory for the promoter too, which had problems completing a section 106 agreement due to land ownership difficulties (part of the site being owned by Hertfordshire County Council) which had led it to press for obligations to be secured by way of negative Grampian-style condition. Helioslough challenged the Secretary of State’s continued delay in issuing a final decision but permission to proceed with judicial review was rejected by John Howell QC sitting as a deputy judge on 1 July 2013.

A section 106 agreement was finally submitted and the Secretary of State granted planning permission in his decision letter dated 14 July 2014. His conclusions were as follows:

“In conclusion, the Secretary of State has found that the appeal proposal would be inappropriate development in the Green Belt and that, in addition, it would cause further harm through loss of openness and significant encroachment into the countryside. In addition the scheme would contribute to urban sprawl and it would cause some harm to the setting of St Albans. The Secretary of State has attributed substantial weight to the harm that would be caused to the Green Belt. In addition he has found that harms would also arise from the scheme’s adverse effects on landscape and on ecology and that the scheme conflicts with LP policies 104 and 106 in those respects.

53. The Secretary of State considers that the factors weighing in favour of the appeal include the need for SRFIs to serve London and the South East, to which he has attributed very considerable weight, and the lack of more appropriate alternative locations for an SRFI in the north west sector which would cause less harm to the Green Belt. He has also taken account of the local benefits of the proposals for a country park, improvements to footpaths and bridleways and the Park Street and Frogmore bypass. The Secretary of State considers that these considerations, taken together, clearly outweigh the harm to the Green Belt and the other harms he has identified including the harm in relation to landscape and ecology and amount to very special circumstances. Despite the Secretary of State’s conclusion that the scheme gives rise to conflict with LP policies 104 and 106, in the light of his finding that very special circumstances exist in this case he is satisfied that, overall the scheme is in overall accordance with the development plan”.

Inevitably, the council challenged the decision. They asserted that the Secretary of State had applied too strict a test in considering whether he could depart from conclusions he had reached in his initial decision and that the Secretary of State failed to take into account a recent decision that he had made on a nearby site. The challenge failed: St Albans City and District Council v Secretary of State (Holgate J, 13 March 2015).

So shouldn’t this be a scheme that is now proceeding, after all of that work? Reserved matters have been applied for, leading to local heat if a report of a recent planning committee is anything to go by. But the rub is that Hertfordshire County Council as land owner hasn’t made a decision as to whether to make its land available to enable the development to proceed.
Howbury Park
The third scheme is one in Crayford, again on green belt land, that was initially promoted by Prologis and secured planning permission on appeal in December 2007. However, due to the global financial crisis it did not proceed and the permission is now time expired.

Roxhill has now replaced Prologis as developer and has submitted fresh applications for planning permission to London Borough of Bexley and to Dartford Borough Council (the proposed access road is in Dartford’s administrative area).

Bexley members resolved to approve the scheme on 16 February 2017 but Dartford members resolved to reject it on 20 April 2017 following their officers’ recommendation. So presumably we may see yet another appeal.

The Bexley part of the scheme is of course within the remit of the Mayor of London, but not the Dartford part, so there is little that he can do by way of intervention. In any event, it will be seen from his 6 June 2016 Stage 1 report that he is not particularly providing a clear strategic lead on the issue:

“11. … The majority of the SRFI developments to date have been in the Midlands and the North, and the aspiration is to have a network of three SRFI around the M25, including this site at Howbury Park, South East London, Radlett, North London(approved by the Secretary of State) and Colnbrook, West London (decision awaited from the Secretary of State) to build a national network.”

“28 Although London Plan policy 6.15a Strategic Rail Freight Interchanges is supportive of the type of facility proposed due to identified strategic need, policy 6.15b caveats this support and sets out criteria which must be delivered within the facility.

A) The provision of strategic rail freight interchanges should be supported. Including enabling the potential of the Channel Tunnel Rail link to be exploited for freight serving London and the wider region.  

B) The facilities must: (a) deliver model shift from road to rail; (b) minimise any adverse impact on the wider transport network; (c) be well related to rail and road corridors capable of accommodating the anticipated level of freight movements; and (d) be well related to the proposed market.  

29 Supporting text paragraph 6.50 acknowledges that these types of large facilities can often only be located in the Green Belt. The Howbury Park site is referenced as a site potentially fulfilling these criteria, reflecting the previous planning permission. Paragraph 6.50 also states:

‘The Mayor will need to see robust evidence of savings and overall reduction in traffic movements are sufficient to justify Green Belt loss in accordance with policy 7.16, and localised increases in traffic movements.’ “

 ”38 The need for a SRFI is accepted, and is borne out through the NPS, the London Plan and the Inspector’s decision on the 2007 case. The applicant has made a compelling ‘very special circumstances’ case but GLA officers would advise further clarification should be sought on the biodiversity benefits of the proposal and the environmental benefits, notably whether the emission savings and overall reduction in traffic movements are sufficient to justify the loss of Green Belt in line with London Plan policy 6.15 and supporting paragraph 6.50. It should be noted that TfL has raised concerns in respect of the potential impact on the passenger rail network and has suggested conditions to limit the hours of operation of rail movements in and out of the SRFI. GLA Officers would want to know the full details of the potential impacts on the wider transport network (in line with London Plan policy 6.15B (b) and whether such conditions would hinder the operation and whether this would reduce the potential emission savings and traffic movements. GLA officers would also seek details of the proposed biodiversity management plan and compensatory measures. GLA officers would also expect a similar obligations package as that previously agreed to encourage the take up of rail use.

39 For the above reasons, at this stage, it is considered premature for GLA officers to make a concrete judgement as to whether the applicant’s very special circumstances case outweighs the identified harm to the Green Belt, and any other harm.”

Concluding thoughts

Even if your work never brings you into contact with the rail or logistic sectors, these convoluted stories must surely give rise to serious concerns. Successive governments have said that these types of facilities are needed in the public interest, for the sake of our national economy and to reduce polluting road freight miles. And yet they wash their hands of any responsibility for lack of delivery.

The consequences of not providing clear strategic guidance is that years are spent on expensive, contentious planning processes. Often by the time that a process has concluded the world has moved on and the process has to start all over again.
These are massively expensive schemes to promote. What can we do to make that investment worthwhile? If a site is unacceptable, can’t we indicate that at the outset and not many years later?

To what extent should land ownership issues be resolved at the outset of a major project?

Should the NSIP threshold be reduced? These schemes end up being determined at a national level anyway. Why not funnel them through a process that is more fit for purpose?

Why don’t we bite the bullet and arrive at more spatially specific policies in the National Networks NPS rather than leave it for promoters to read between the lines as to what the Government’s approach may end up being to particular proposals – particularly given the inevitably sensitive locations involved, often in the green belt? (Or is that taboo issue the answer to my question?).

Simon Ricketts 6.5.17

Personal views, et cetera

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