Month: October 2017

Aberdeen: Supreme Court, Planning Obligations

Requiring developers to enter into planning obligations to make financial contributions to a pooled fund to be spent on infrastructure, including interventions at places where a particular development has only a trivial impact, is unlawful. 
This was the ruling of the Supreme Court this week in Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited (25 October 2017). Being a Scottish case, the relevant domestic legislation referred to was section 75 of the Town and Country Planning (Scotland) Act 1997 rather than (for England and Wales) section 106 of the Town and Country Planning Act 1990, but the principles are the same. 

The case related to supplementary planning guidance, part of the statutory development plan, that sought financial contributions by way of planning obligations towards a strategic transport fund which was “to mitigate the cumulative impact of developments at specific “hotspots” in the network”. 
South of the border, CIL of course would be available as a mechanism but the case is still important:
– as a reminder that simply scrapping CIL and not replacing it with another mechanism for securing pooled contributions towards infrastructure is not a straight-forward option
– many English and Welsh authorities still use tariff style policies to secure all manner of section 206 contributions (and if/when the regulation 122 pooling restriction is removed this will only increase)

– what are its implications for the tendency, simply by way of planning policy, to draw in all manner of social requirements as planning obligations to be sought?

The Aberdeen supplementary guidance allowed developers to choose to undertake a bespoke assessment of the cumulative impact of their schemes outwith the fund: 
“Developers can elect to assess and mitigate their cumulative impact outwith the [Fund], although this will require a considerably more comprehensive Transport Assessment and the design and delivery of the mitigation measures shown to be necessary. This will definitely be more time-consuming and almost certainly more expensive, if it can be achieved at all.” 
However the court rejected the argument that this made the contribution voluntary. 
Nor was the court impressed by the authority’s reliance on this assurance in the guidance that the policy was in fact voluntary for developers:
“No contributions from development sites will be used to support projects where the development in question is predicted to gain no mitigation benefit from the infrastructure being provided and therefore is un-related to the development making the contribution...”
This long passage sets out the court’s approach to section 75/106 agreements and also to conditions:
“38.              The express words of section 75 require a relationship between the planning obligation and the land to be burdened by the obligation because the obligation must in some way restrict or regulate the development or the use of that land. But those restrictions or regulation do not necessarily relate to a particular permitted development on the burdened land. A planning obligation may prohibit the development of the land in a particular way or the use of the land for particular purposes. A planning obligation may keep the burdened land free from any development and may be entered into in circumstances which are not connected with any planning application.

39.              Restrictions may validly be imposed in the context of the development of another site. Thus, to take an example discussed in Good v Epping Forest District Council, the owner of two farms, A and B, within the area of a planning authority might apply for planning permission to develop and operate an intensive breeding establishment on farm A. The owner of the farms might offer, or the planning authority might require, a section 75 planning obligation preventing the use of farm B for that purpose. The restriction would relate to farm B and would be justified for the planning purpose of preventing an undesirable number of such establishments in the same area.

40.              A planning obligation may also regulate the development or use of the burdened site. An example, in the context of a planning application, is where a planning obligation requires the developer to provide affordable housing as a component of a development on its site or to create specified infrastructure on its land to meet the needs of that development.

41.              Similarly, a planning authority may contract for the payment of financial contributions towards, for example, educational facilities, healthcare facilities, sewerage or waste and re-cycling: requiring a development to contribute to, or meet, its own external costs in terms of infrastructure involves regulating the development of the land which is burdened by the obligation. The financial contribution can be applied towards infrastructure necessitated by the cumulative effects of various developments, so long as the land which is subject to the planning obligation contributes to that cumulative effect and thereby creates a sufficient relationship between the obligation in question and the land so that one can fairly speak of the obligation as regulating the development of the land.

42.              In each of the examples in paras 38-41 above the restriction or regulation serves a purpose in relation to the development or use of the burdened site. In this appeal a question of principle arises: can a restriction or regulation of a site be imposed in the form of a negative suspensive planning obligation, analogous to the negative suspensive planning condition in the Grampian Regional Council case, for a purpose which does not relate to the development or use of the site? In particular, is it lawful by planning obligation to restrict the commencement of the development of a site until the developer undertakes to make a financial contribution towards infrastructure which is unconnected to the development of the site? Alternatively, is it lawful to require contributions towards such infrastructure in a planning obligation which does not restrict the development of the site by means of a negative suspensive obligation?

43.              The answer to each question is no. Dealing first with the latter question, a planning obligation which required a developer to contribute to infrastructure unconnected with its development but did not make the payment of the contribution a pre-condition of development of the site would not fall within section 75 as it would neither restrict nor regulate the development or use of the site….

44. A planning obligation, which required as a pre-condition for commencing development that a developer pay a financial contribution for a purpose which did not relate to the burdened land, could be said to restrict the development of the site, but it would also be unlawful. Were such a restriction lawful, a planning authority could use a planning obligation in the context of an application for planning permission to extract from a developer benefits for the community which were wholly unconnected with the proposed development, thereby undermining the obligation on the planning authority to determine the application on its merits. Similarly, a developer could seek to obtain a planning permission by unilaterally undertaking a planning obligation not to develop its site until it had funded extraneous infrastructure or other community facilities unconnected with its development. This could amount to the buying and selling of a planning permission. Section 75, when interpreted in its statutory context, contains an implicit limitation on the purposes of a negative suspensive planning obligation, namely that the restriction must serve a purpose in relation to the development or use of the burdened site. An ulterior purpose, even if it could be categorised as a planning purpose in a broad sense, will not suffice. It is that implicit restriction which makes it both ultra vires and also unreasonable in the Wednesbury sense for a planning authority to use planning obligations for such an ulterior purpose.”

The court then went on to consider the relevance of planning policies in a local planning authority’s decision as to whether to require a planning obligation. If the policy itself fails the legal tests set out above it cannot be taken into account by the authority:
“The inclusion of a policy in the development plan, that the planning authority will seek such a planning obligation from developers, would not make relevant what otherwise would be irrelevant.”
The judgment indicates that “there is much that can be said in favour” of the Aberdeen scheme, but the statutory regime does not allow for it. It ends with a pointed final paragraph:
“If planning authorities in Scotland wish to establish a local development land levy in order to facilitate development, legislation is needed to empower them to do so.”
This case is going to cause people to look long and hard at planning obligations policies to ascertain whether there is indeed the necessary causal link between the development in question and the financial contribution or other obligation being sought. 
For instance, this will reinforce the need for policy requirements in relation to provision of contributions towards SANGs (suitable alternative natural greenspace) in the vicinity of SACs and SPAs to be framed with care. Would the decision in R (Smyth) v Secretary of State  (Court of Appeal, 5 March 2015) now be different?
Similarly, the Mayor of London’s policies in relation towards securing climate change mitigation contributions. 
Simply including a standardised wish list in policy is not going to be a sufficient basis for securing contributions. But problems remain. Many matters, for instance the provision of affordable housing, are only relevant planning considerations because the inclusion in planning policy of a requirement for them. When is this a legitimate basis for a planning obligation and when is it not?
Food for thought for the Secretary of State ahead of any announcement in relation to CIL, promised in February to be alongside the Autumn budget which is on 22 November. 
Simon Ricketts, 28.10.17
Personal views, et cetera

PSI-Apps

Nothing in this blog post is intended to suggest in any way that planning in London is a game of psychology, politics and process but here are the basic rules, as applied this month by Sadiq Khan in Wandsworth and Barnet. 
PSI applications are defined in the Mayor of London Order 2008 as applications of “potential strategic importance” that fulfil at least one of the criteria set out in the Schedule to the Order. 

PSI applications have to be referred to the Mayor before they are determined by the borough council (I include in that term for ease the Corporation of the City of London and Westminster City Council) and referred again, if he requires it, after their determination and before the permission or refusal is issued – stage 1 and stage 2 referral respectively. 
The Mayor has two special powers:
First, subject to various detailed criteria and procedural requirements he can direct refusal (see my 9 September 2017 blog post Policing The SPG: New Scotland Yard). The borough council must then issue a refusal notice and the applicant has its usual right of appeal to the Planning Inspectorate. Advanced players of the game (not a game) take the view that the Mayor’s direction is potentially revocable, so in some circumstances the borough may hold off issuing its refusal notice and further negotiations will ensure. (I note for example that the New Scotland Yard refusal notice has not yet been issued). 
Secondly, again subject to various detailed criteria and procedural requirements, he can direct that he should be the local planning authority and then determine it himself (almost inevitably by granting planning permission) following a representation hearing (before which there is a stage 3 report). Until this month he had only determined two applications by this route, Hale Wharf in Haringey and Palmerston Road in Harrow (see my 18 March 2017 blog post London Calling: Mayoral Interventions).
We now have two more examples: 
Homebase site, Swandon Way, Wandsworth 
As set out in his press release, the Mayor has resolved on 17 October 2017 to approve a scheme by National Grid UK Pension Scheme next to Wandsworth Town railway station for 348 homes. Wandsworth Council had resolved to refuse permission for the development of the site due to the height and scale of the development and its proximity to a nearby conservation area. The development included 23% affordable homes. The developer has now agreed to increase that figure to 35%, with the majority in the first phase of development, and with review mechanisms as per the Mayor’s SPG. 
He had called in the scheme on 26 June 2017, noting that Wandsworth was significantly underperforming against its borough 33% affordable housing target. 
The Stage 1, 2 and 3 documents are at this link.
National Institute for Medical Research site, Mill Hill



The Mayor resolved to approve on 6 October 2017 a scheme by Barratt London for 460 homes on the National Institute for Medical Research site, the Ridgeway, Mill Hill. Barnet Council’s planning committee had resolved to refuse planning permission against officers’ advice, with the proposed reasons for refusal referring to effect on a conservation area, on green belt and on trees. In his 2 May 2017 call in letter he stated that Barnet Council is “currently significantly under-delivering against its annualised housing completions targets and the borough’s affordable housing targets.” The Mayor secured an increased affordable housing commitment, from 20% plus off-site financial contribution, to 40%. 
The Stage 1, 2 and 3 documents are at this link.
So it may be said that the Mayor is achieving on these schemes the percentages that he has flagged in the SPG. But I do have some open questions:
1. Where is the developer’s focus now to be in preparing proposals – on meeting local and borough concerns and aspirations or on achieving, via density, a development that is sufficiently viable to deliver the affordable housing percentages that may lead to the Mayor stepping in to assist if local discussions become difficult?
2. By his pragmatic actions, is the Mayor giving more weight to the SPG (non-statutory guidance, not policy) than it deserves, particularly in insisting on fairly rigorous adoption of the review mechanisms in the SPG?

3. When we see the draft London Plan at the end of next month, are we going to see various policies that cannot be said to be “strategic” but are drilling down to issues which should be left to be addressed at borough level?

4. Where deals are done to ensure an increased affordable housing percentage, will the increased pressure on viability in fact delay those schemes coming to fruition?

5. In some circumstances, will we see developers either seeking to ensure that their schemes meet the PSI application threshold, so as to come within the Mayor’s ambit, or conversely, seeking to ensure that they remain below the radar? Where will the balance lie – more big schemes, or fewer?

6. To what extent is party politics relevant? Is the Mayor more likely to intervene in Conservative boroughs such as Wandsworth and Barnet?

In the meantime, there are plenty of rumours about the Mayor’s planning policy direction, from tightening up on the criteria for student housing schemes to scrapping density matrices. All will no doubt be revealed on 29 November. 
Simon Ricketts, 21 October 2017
Personal views, et cetera

Flawed Drafting: Interpreting Planning Permissions

“What are words worth? Words

Words of nuance, words of skill”

Some of the most difficult cases in every area of law arise from flawed drafting and drafting which does not adequately anticipate future eventualities. 
I will leave for another blog post the issues that arise in relation to the drafting and interpretation of section 106 agreements and undertakings, although the Secretary of State’s 12 September 2017 decision letter dismissing an appeal for planning permission for 705 dwellings at King George’s Gate, Surbiton was a salutary lesson, and essential reading, for every planning lawyer.
In the light of Lang J’s judgment this month in London Borough of Lambeth v Secretary of State, this blog post limits itself to the question as how literally should planning permissions be interpreted? Is the planning permission in fact wider in its scope than the local authority intended when granting it? Have restrictions that were initially imposed fallen away by virtue of not being reapplied to subsequent permissions for the permitted buildings or to a permission for amendments to that initial permission? 

There have been many examples where the courts have determined that the legal effect of a permission was not what the authority may have intended, applying what might be regarded as a classically pure planning law approach:

– where a planning permission is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions imposed upon it and the reasons given for the imposition of those conditions 
– an extreme reluctance to imply extra wording into conditions (Widgery LJ’s statement in Trustees of Walton Charities v. Walton & Weybridge DC (1970): “I have never heard of an implied condition in a planning permission and I believe no such creature exists. Planning permission… is not simply a matter of contract between the parties. There is no place…within the law relating to planning permission for an implied condition. Conditions should be expressed, they should be clear, they should be in the document containing the permission.”)

– applying the judge-made principle of a “new chapter in the planning history” of a site, effectively wiping the slate clean of previous planning condition restrictions where a significant change of use or other development has occurred.

This has led over the years to many outcomes which, whilst logical on a dispassionate reading of the relevant document by a lawyer, were certainly not anticipated by the unfortunate planning officer. For instance:
– in Carpet Décor (Guilford) Limited v Secretary of State (Sir Douglas Frank QC, 17 July 1981) a condition “that no variations from the deposited plans and particulars will be permitted unless previously authorised” by the local planning authority was held not to be sufficiently unequivocal as to exclude the operation of the Use Classes Order. 
– in Dunoon Developments Limited v Secretary of State (Court of Appeal, 18 February 1992) a condition on a planning permission for a car showroom that stated that the use of the premises would be limited to the display, sale and storage of cars was not sufficient to exclude the operation of the General Permitted Development Order.
– in I’m Your Man Limited v Secretary of State (Robin Purchas QC, 4 September 1998) it was held that for a planning permission to be construed as limited to a temporary period, it was not sufficient for the restriction to be set out in the description of development rather than in a condition. 
– in Stevenage Borough Council v Secretary of State (HHJ Waksman QC, 3 June 2010) the owner of a retail park was held to be free of various restrictions on the types of goods which could be sold, by virtue of planning permissions having been granted for subdivision of units and other alterations, which did not reimpose restrictions from the original permission. As with a number of similar cases and CLOPUD appeal decision letters, the ruling partly relied on a liberal application of section 75(3) of the Town and Country Planning Act 1990, which provides that where the proposed use of a building (or part of) a building is not specified in a permission for its erection (or alterations), “the permission shall be construed as including permission to use the building for the purpose for which it is designed“.
– in Prudential Assurance v Sunderland City Council (Wyn Williams J, 15 July 2010) the High Court held that, through the windfall of a local planning authority’s mistake faced with successive planning applications, Peel Holdings had become free of section 106 restrictions on the types of goods that could be sold from its retail park in Washington, Sunderland. 
The tide then started to turn with the Court of Appeal in Peel Land and Property Investments Plc v Hyndburn Borough Council (19 December 2013). Peel, no doubt hoping for an equivalent outcome as achieved in Sunderland, argued that the failure of the local authority, in drafting a permission for works of alteration to retail park units, to reimpose a condition restricting the goods that could be sold, meant that the restriction had been removed. However the court rejected the submissions. The works did not create a new chapter in the planning history of the units and on the facts (with no indication in the application documents that unrestricted retail use was intended) section 75(3) could not be relied upon in the way that was sought. 

The Supreme Court in Trump International Golf Club Scotland Limited v The Scottish Ministers (16 December 2015) then indicated a more nuanced approach to interpretation:

“When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference … or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.

Interpretation is not the same as the implication of terms. Interpretation of the words of a document is the precursor of implication. It forms the context in which the law may have to imply terms into a document, where the court concludes from its interpretation of the words used in the document that it must have been intended that the document would have a certain effect, although the words to give it that effect are absent” (Lord Hodge)

Against this background it is therefore interesting to see this month another case in which the owner of a retail investment, in this case a Homebase DIY store, has achieved an outcome which was not intended by the local planning authority, and which could have been avoided by competent drafting of the decision notice. In London Borough of Lambeth v Secretary of State (Lang J, 3 October 2017), a planning permission had been granted varying conditions attached to an earlier permission. The purported effect of the widened conditions was set out in the description of development on the face of the permission:

” For: Variation of condition 1 (Retail Use) of Planning Permission Ref: 10/01143/FUL (Variation of Condition 6 (Permitted retail goods) of planning permission Ref. 83/01916 (Erection of a DIY retail unit for Texas homecare and an industrial building for cow industrial polymers) granted on 17.09.85 to allow for the sale of a wider range of goods to include DIY home and garden improvements, car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) Granted on 30.06.2010.


Original Wording:
 The retail use hereby permitted shall be used for the retailing of DIY home and garden improvements and car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose (including the retail sale of food and drink or any other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order. 


Proposed Wording:
 The retail unit hereby permitted shall be used for the sale and display of non-food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking or re-enacting that Order with or without modification), for no other goods.”

However, for some reason, whoever drafted the permission did not bother to go on and include the proposed wording as a condition. Lang J applied I’m Your Man and held that the purported restriction was of no effect. Lambeth Council’s “intended purpose was not given legal effect by the wording of the 2014 permission, because of flawed drafting.”
As set out in Landmark Chambers’ helpful summary , Lang J has granted permission for the case now to go to the Court of Appeal:
“I do not accept the Claimant’s critique of my judgment, and the application of the current law to the facts of this case. However, I am left with some unease about the result.  The principle established in I’m Your Man Limited v Secretary of State for the Environment 77 P & CR 251, and its application, merits consideration in a higher court which is not bound by precedent in the same way as the High Court. The interpretation and application of the judgments of the Supreme Court in Trump International Golf Club Scotland Ltd & Anor. v The Scottish Ministers [2015] UKSC 74, [2016] 1 WLR 85 is still evolving, and merit consideration by the Court of Appeal in this case.”

It is worth noting two post-Trump cases where the Court of Appeal has rejected submissions that a narrow interpretation should be given to specific conditions.
First, R (XPL Limited) v Harlow Council (Court of Appeal, 13 April 2016), where a condition preventing “repairs or maintenance of vehicles or other industrial or commercial activities (other than the parking of coaches and other vehicles …” outside specified hours at a coach depot was held to extend to a prohibition on the running of engines. 

Secondly, Dunnett Investments Limited v Secretary of State (Court of Appeal, 29 March 2017) where the court had to determine whether the following condition is to be interpreted as excluding the operation of the General Permitted Development Order so as to allow change of use from offices to residential by way of the prior approval process:

“This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained“.

Did prior approval from the local planning authority pursuant to the GPDO amount to “express planning consent” for the purposes of the condition?
The Court of Appeal reviewed the case law on interpretation of conditions:
“In relation to the interpretation of, specifically, a planning condition which is said to exclude the operation of the GPDO, other authorities are of some assistance. From them, the following themes can be discerned.


i) It is rightly common ground that a planning condition on a planning consent can exclude the application of the GPDO (see Dunoon Developments v Secretary of State for the Environment and Poole Borough Council (1993) 65 P&CR 101 (“Dunoon Developments”)).


ii) Exclusion may be express or implied. However, because a grant of planning permission for a stated use is a grant of permission for only that use, a grant for a particular use cannot in itself exclude the application of the GPDO. To do that, something more is required (see, e.g., Dunoon Developments at [107] per Sir Donald Nicholls VC). 


iii) In Carpet Décor (Guilford) Limited v Secretary of State for the Environment (1981) 261 EG 56, Sir Douglas Frank QC sitting as a Deputy High Court Judge said that, because in the absence of such a condition the GPDO has effect by operation of law, the condition should be in “unequivocal terms”. Although “unequivocal” was used by Mr Katkowski in his written argument, during the course of debate he accepted that that term was now less appropriate, given the modern trend away from myopic focus upon the words without proper reference to their full context. However, he submitted (and I accept) that, to exclude the application of the GPDO, the words used in the relevant condition, taken in their full context, must clearly evince an intention on the part of the local planning authority to make such an exclusion.”

The court did not accept the claimant’s arguments:
“The first part of the condition sets out the scope of the permission. I respectfully agree with Patterson J (at [60]), the second part (“…and for no other purpose whatsoever…”) is not, as Mr Katkowski would have it, merely emphatic of the scope of the planning permission, but is rather a clear and specific exclusion of GPDO rights. Whilst, as I have described, each case depends upon its own facts, it is noteworthy that, in Dunoon Developments (at pages 105-6), in finding that the words “limited to” a particular purpose did not exclude GPDO rights, Farquharson LJ compared that phrase with “… and for no other purpose…” as considered in the earlier case of The City of London Corporation v Secretary of State for the Environment (1971) 23 P&CR 169, which he considered was far more emphatic and (he suggested) possibly sufficient to exclude the operation of the GPDO. In this case, we have a more emphatic phrase still, namely “… and for no other purpose whatsoever…”. Further, although we are concerned with rights under the GPDO and not the UCO, the interpretation of that phrase to exclude the operation of the GPDO is at least consistent with R (Royal London Mutual Insurance Society) v Secretary of State for Communities and Local Government[2013] EWHC 3597 (Admin); [2014] JPL 458, in which Patterson J held that a condition which restricted use to “only” particular uses within Use Class A1 excluded the right to use the land for other Class A1 uses, because it effectively evinced an intention to identify acceptable uses within the class whilst prohibiting other unacceptable uses within that class unless and until the merits of such use had been tested by the planning authority upon an application for planning permission (see also The Rugby Football Union v The Secretary of state for Local Government, Transport and the Regions [2001] EWHC Admin 927; [2002] JPL 740, in which Ouseley J, at [56], found that the words “for no other use” had similar effect, on the basis that such words “have no other sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission”). The third part of the condition before this court makes it the more abundantly clear that automatic or direct GPDO rights are excluded, by requiring a planning application if such uses are to be pursued.”
Furthermore, “”express planning consent from the Local Planning Authority” cannot sensibly include planning permission granted by the Secretary of State through the GPDO. It means what it says, i.e. planning permission granted by the local planning authority.”
What are the odds on Lang J’s judgment in Lambeth surviving the Court of Appeal?
In the meantime, and possibly whatever the outcome of that case, there is unpredictability. This is particularly unhelpful given the pressures on local planning authorities to issue permissions without unnecessary delay, and without the resources for a lawyer to check what may often on their face appear to be approvals of minor revisions and alterations. Mistakes happen. The extreme reluctance of authorities to issue revocation or modification orders to put mistakes right, a reluctance born of the liability to pay compensation that thereby arises, is another story – and in my view a large part of the problem. 
Simon Ricketts, 14.10.17
Personal views, et cetera

Everyone Knows This Is Nowhere: Devolution

The prospect of devolution can perhaps cause people to get too excited (Brexit; Catalonia) or perhaps not excited enough (the last Labour Government’s experiment with regional assemblies; the current roll-out of combined authorities). Predictably, this blog post focuses on the latter category. 
First of all, in order to understand planning in Great Britain you need to understand its post-devolution administrative structure, following the enormous changes of the last 20 years. 
It is now 20 years since referendums in Scotland and Wales led to the creation of the Scottish Parliament and National Assembly for Wales, with the Good Friday Agreement and Northern Ireland Act 1998 following a year later, leading to the creation of the Northern Ireland Assembly. 
Slowly but surely, four different planning systems have developed, summarised in a January 2016 House of Commons library briefing paper, Comparison of the planning systems in the four UK countries.
In relation to English devolution issues, perhaps dull is good, with arguments often focusing on worthy but dull questions of efficiency of administration and decision making, and the unlocking of funding streams. 

Directly elected regional administration of London was reintroduced in 2000 following a referendum in May 1998, in which there was a 72% majority vote (out of a 34% turnout) for the establishment of the Greater London Authority, to be led by an elected Mayor. Despite the low turnout, the size of the “yes” vote did seem to recognise the need for a unified voice for London that had been missing since the abolition of the Greater London Council in 1986. 
The Labour Government of the time attempted to use elements of the London model to introduce directly-elected regional assemblies across England. However, it became plain that there simply was not the public appetite. Voters rejected the proposal for a regional assembly for the North East 77.9% to 22.1%, on a turnout of 48% in November 2004 and other proposed referendums for the North West and for Yorkshire and the Humber were then dropped. Whilst there is still some nostalgic harking back to the regional planning of the time, the ridiculously complicated structure in the Planning and Compulsory Purchase Act 2004 took the form of regional spatial strategies, prepared by ‘regional planning bodies’, comprising regional assemblies of co-opted local authority members. The process was closely overseen by central Government and indeed each final regional spatial strategy was published by the Government. So, hardly devolution – and with regional boundaries that often had no historic or emotional basis – although a potentially helpful administrative structure for coordinating local authorities and determining local authority housing targets.
Regional spatial strategies, along with all mentions of the “r” word including the regional planning boards, regional assemblies and regional development agencies (save for the London Development Agency, which survived a little longer) were swept away following the coalition Government coming into power in 2010. The new mantra of localism dictated the removal of top-down targets in favour of the bottom-up idea that it would be more effective for local authorities to determine how to meet their and their neighbours’ housing needs via the Localism Act 2011’s “duty to cooperate”, a Cheshire cat’s smile if ever one there was. Coordinated investment into the regions, including application of EU structural funds, became more difficult following the abolition of the regional development agencies, a vacuum only partly filled by LEPs (voluntary local economic partnerships between local politicians and business people). 
But local politicians (the public? I’m not so sure) continued to press for greater devolution of powers to the regions, particularly against the background of the greater autonomy given to Scotland in particular in the run-up to the 2014 Scottish independence referendum (where there was a 55% vote against independence on an 85% turnout – that was clearly a vote that clearly did matter to its electorate). The Government embarked on negotiating a series of ‘devolution deals’ with groups of local authorities. The first deal, to create the Greater Manchester Combined Authority, was announced in November 2014. 
The Cities and Local Government Devolution Act 2016 was, as set out its explanatory notes, “intended to support delivery of the Government’s [2015] manifesto commitment to “devolve powers and budgets to boost local growth in England”, in particular to “devolve far-reaching powers over economic development, transport and social care to large cities which choose to have elected mayors” and “legislate to deliver the historic deal for Greater Manchester”. The Act takes forward a number of reforms which are intended to allow for the implementation of devolution agreements with combined authority areas and with other areas. It is enabling legislation which provides a legislative framework which can be applied flexibly to different areas by secondary legislation.” 

The devolution deals to date are listed on the Local Government Association’s website. The powers agreed to be devolved have been different in each case. The position is well summarised in a House of Commons library briefing paper, Devolution to local government in England (23 November 2016):


It will be seen that some deals include the power to create a spatial plan for the area, and/or the power to establish Mayoral Development Corporations. Some deals will also permit the combined authority to use compulsory purchase orders, with the consent of the local authority in which the land or property is located.

I looked specifically at the West Midlands Combined Authority in my blog post Devo West Mids (24 October 2016). 
So far we have had mayoral elections for six combined authorities, which all took place in May 2017. Turnouts were all very low indeed:

Whilst regional devolution may not capture the attention of voters (in fact I’m sure it is utterly confusing to most), undoubtedly it presently brings the promise of significant funding streams from Government. Professor Janice Morphet has also pointed in her 2016 book Infrastructure Delivery Planning to the work of economist Paul Krugman in showing the growth in national GDP that can result from investment decisions being made at a sub-national level. More practically, big personalities are important. That has been the experience in London – and Greater Manchester and the West Midlands both now have strong Mayors, in the shape of Andy Burnham and Andy Street respectively, who will undoubtedly drive those great city regions in an equivalent way. 

A further election, in the Sheffield City Region, is due to be held in May 2018. Why the delay in Sheffield? The city region, which will control additional spending of £30m a year over the next 30 years, was originally going to include Chesterfield and Bassetlaw (which authorities would thereby be able to participate in the significant government funding available). However, Derbyshire County Council (which would automatically thereby be drawn into the arrangement and which opposed “powers for key services in the town being handed to a Sheffield City Region Mayor”) successfully judicially reviewed the process, alleging consultation flaws in R (Derbyshire County Council) v Barnsley, Doncaster, Rotherham and Sheffield Combined Authority, Secretary of State and Chesterfield Borough Council (Ouseley J, 21 December 2016). Chesterfield is in the county of Derbyshire and Bassetlaw is in the county of Nottinghamshire. Ouseley J accepted that the views of the public should have been, but were not, specifically sought as to whether Chesterfield Borough Council should be a part of the combined authority. The case led first to the Sheffield City Region mayoral election being delayed by a year and then to Chesterfield and Bassetlaw withdrawing their applications for full membership (in the case of Chesterfield after Derbyshire had resolved in June 2017 to carry out a full referendum of all Chesterfield residents). 
The momentum generally appears to have paused. Section 1 of the Cities and Local Government Devolution Act 2016 places a duty on the Secretary of State to provide annual reports to Parliament setting out progress on devolution across England as soon as practicable after 31 March each year. The Local Government Association is concerned that this year’s report has not yet been published.   
We are at an interesting point. 

First, am I being too downbeat about the benefits of further devolution? I see that Lord Heseltine and Ben Rogers are speaking on Giving Power to the People: The Future of Devolution at the Future City Festival on 19 October 2017. Is there currently the political, or public, will?
Secondly, what now for London? In my view, the devolution of power to London (including reducing to an extent the powers of individual boroughs) has been a success. The moves towards greater powers for the Mayor of London have continued, which is welcome, but should there be more? Ben Rogers wrote an interesting FT piece Would more independence for London benefit the nation? on 3 October 2017.

Thirdly, and most importantly, what changes will Brexit bring? For a start we will see an end to EU structural funding, much of which was to be passed to local areas, although the Government has guaranteed any spending of these funds that is agreed before the UK leaves the EU. But more fundamentally, as again Professor Janice Morphet has pointed out, in her 2017 paper (not yet published) to the Oxford Joint Planning Law Conference we risk losing part of the drive towards devolution that arises from the EU’s principles of subsidiarity and fairness, which translate into for instance the application of structural funds and the development of the Trans European Networks which have been an impetus for transport infrastructure investment. 
Ultimately, might it be the case that some devolution is ruled by the heart and some by the head? English devolution may be in the latter category, described indeed this week in EG this week by Jackie Sadek as a “fragile flower”. Let’s hope it’s not trampled upon by politicians with only a March 2019 deadline in mind. 
Simon Ricketts, 6.10.17
Personal views, et cetera