Month: June 2019

Another Green World: The South Coast Nitrate Crisis

Local authorities in south Hampshire have been advised by a Government body not to grant permission for most forms of residential development until further notice. Perhaps absurdly, but in desperation, authorities have even been exploring amongst themselves whether they could at least grant planning permission subject to a condition restricting the homes from being occupied, or simply risk the consequences of ignoring the advice – the position is that bad.

I’m not sure that anyone can blame the EU, or lawyers, or local authorities, or developers, but no doubt they will. Rather, the problem arises from the apparent lack of adequate measures to ensure that, by virtue of its nitrate content, sewage generated as a result of new development does not harm the integrity of coastal waters protected as special areas of conservation and special protection areas under the Habitats and Birds Directives. Nitrate enrichment causes green algae, harmful to protected habitats and birds, through a process known as eutrophication. The chickens (not those in my 1 June 2019 blog post, although the same by product) are coming home to roost following a lack of priority for too long on the need by the Government and water companies to ensure that we have adequately funded and operated waste water treatment processes (see for instance the 25 June 2019 Guardian story Southern Water faces prosecution after record £126m penalty).

The issue was raised in a House of Commons debate on 17 June 2019 by Suella Braverman, Conservative MP for Fareham, but worryingly more from the perspective of seeking to suspend affected authorities’ housing targets rather than resolving the underlying issue:

“Planning applications that could deliver hundreds of new homes in Fareham are in limbo following advice from Natural England, which has instructed that planning permission should be refused unless developments are nitrate-neutral, after two rulings from the European Court of Justice. Will the Government work with me to look at suspending house building targets while affected councils work to find a solution to avoid being unfairly treated at potential appeals?”

I’m not sure how reassured she we are by the response from the relevant Under-Secretary, Jake Berry: “We will happily work with my hon. Friend as she sets out. I believe that the housing Minister is already looking into this issue, and I am sure he will be in touch with her in due course.”

In south Hampshire the problem arises from a legal opinion obtained by Natural England and shared with relevant authorities on a confidential basis. If there is a copy in public circulation then do let me know and I will add it to this post. The opinion draws upon recent case law, particularly the ruling of Court of Justice of the European Union in Coöperatie Mobilisation for the Environment UA, Vereniging Leefmilieu V College van gedeputeerde staten van Limburg and Stichting Werkgroep Behoud de Peel v College van gedeputeerde staten van Noord-Brabant (CJEU, 7 November 2018).

Thankfully it’s known as the “nitrogen deposition” or the “Dutch” case. Whilst the case concerned nitrogen deposition effects arising from agricultural activities, there are two particular (unsurprising) parts of the ruling which are relevant for our purposes:

1. The Habitats Directive does not preclude “national programmatic legislation which allows the competent authorities to authorise projects on the basis of an ‘appropriate assessment’ within the meaning of that provision, carried out in advance and in which a specific overall amount of nitrogen deposition has been deemed compatible with that legislation’s objectives of protection. That is so, however, only in so far as a thorough and in-depth examination of the scientific soundness of that assessment makes it possible to ensure that there is no reasonable scientific doubt as to the absence of adverse effects of each plan or project on the integrity of the site concerned, which it is for the national court to ascertain.”

2. An appropriate assessment under the Habitats Directive “may not take into account the existence of ‘conservation measures’ within the meaning of paragraph 1 of that article, ‘preventive measures’ within the meaning of paragraph 2 of that article, measures specifically adopted for a programme such as that at issue in the main proceedings or ‘autonomous’ measures, in so far as those measures are not part of that programme, if the expected benefits of those measures are not certain at the time of that assessment.”

The most detailed account that I could find of the legal advice and underlying issues is in Portsmouth City Council report to cabinet 11 June 2019. It explains that the Integrated Water Management Strategy published last year by the Partnership for Urban South Hampshire (PUSH) authorities, Natural England and the Environment Agency recognised that there were “significant uncertainties beyond the year 2020 relating to water quality, quantity, the capacity for accommodating future growth and the impacts on European nature conservation designations.”

“Following the CJEU ruling, Natural England (NE), the government’s adviser for the natural environment, advises that, under the requirements of the Habitat Regulations, the existing uncertainty about the deterioration of the water environment must be appropriately addressed in order for the assessment of a proposal to be legally compliant. They recommend that this is addressed by securing suitable mitigation measures to ensure that proposals achieve ‘nitrate neutrality’. It is recognised that it would be difficult for small developments or sites on brownfield land (which form the majority of applications in Portsmouth) to be nitrate neutral.

NE has therefore advised [Havant Borough Council that ‘planning permission[s] should not be granted at this stage’ whilst the uncertainty around this issue means that a comprehensive assessment of the impacts of a proposal cannot be satisfactorily carried out and while an interim strategic solution is being developed for the sub-region’. Natural England’s advice is that proposals for new employment or leisure uses which do not entail an overnight stay are generally not subject to these concerns.

Officers sought advice from Queen’s Counsel on the matter, which confirmed the validity of Natural England’s position (as of 05.05.19). As per the legal advice received, and in the absence of any pre-existing mitigation strategy, the City Council has temporarily ceased granting planning consent for additional dwellings (or an intensification of dwellings), tourism related development and development likely to generate an overnight stay at this time. Such applications can still be considered on an individual basis if they are able to demonstrate that the development would be ‘nitrate neutral’. It is understood that other Local Authorities within the Solent catchment have also temporarily stopped granting planning consent for development affected by this matter whilst mitigation strategies are being developed.”

In a subsequent specific agenda item on the issue in its report to planning committee on 19 June 2019 members were updated:

“3.11  Immediate actions being progressed are as follows:

a)  Portsmouth and the PUSH authorities to lobby central government on the approach to the matter. There appears to be disconnect between government agencies on their advice to Local Authorities, including a clear conflict between the approach to the water quality issue and the pressure to meet the government’s housing delivery targets. We will be urging Government to examine the sources of the nitrates problem, including its own environmental permitting regimes and insufficient wastewater treatment practices by statutory undertakers, rather than solely focusing on the planning system/ development industry to present solutions.

b)  PUSH authorities have agreed to explore a strategic solution to the nitrates problem that can be used as mitigation by all authorities.

c)  Officers are identifying and exploring with Natural England and other relevant parties short term measures which could enable planning consents to resume in the short term while a more comprehensive and strategic solution is determined.

d)  Officers are arranging to meet with Southern Water to explore any existing capacity for improvements in the operation of the existing waste water treatment infrastructure and the scope, timescales and mechanisms to improve the existing treatment”

The Partnership for Urban South Hampshire (“PUSH”) comprises Hampshire County Council, Portsmouth, Southampton, Eastleigh, East Hampshire, Fareham, Gosport, Havant, New Forest, Test Valley and Winchester.

PUSH held a joint committee meeting on 4 June 2019. The minutes make interesting reading. The meeting was joined by Graham Horton from Natural England and Philip James from Southern Water. Philip James made it clear that any solution arrived at by Southern Water would need to be acceptable to its regulator, the Environment Agency. I suspect this issue is not going to be resolved quickly…

“As discussion continued, Members sought views from Graham Horton whether there is a short-term solution which might mitigate risk but allow housing to be built. Members were advised that an option could be that Natural England prepares a form of words which, whilst it would not remove the risk of challenge, may give reassurance to legal advisers to support Local Planning Authorities deliver housing.

The suggestion was put to the meeting that a possibility could include Local Planning Authorities granting permission with conditions of no occupation until this matter is resolved and Graham Horton was asked whether if this approach was taken whether Natural England would challenge LPAs.

The Committee was advised that if Natural England agree and sign up to this then there would not be a challenge, but they will reserve judgment at this time until a joint position is developed and agreed which allows the issue to be resolved. This will not eliminate the risk but should give Local Planning Authorities some comfort and allow them to determine their planning consents.

At the conclusion of the discussion on this item, the Chairman summarised that it was a matter for individual Local Authorities whether they started to issue planning consents, that the best approach was to collectively work on a form of wording and it was agreed this would form joint working and the that the PUSH Planning Officers’ Group would take the lead on the preparation of this Assessment as a matter of priority. ”

It was further resolved that the Chairman should write “on behalf of PUSH to the Ministry of Housing, Communities and Local Government and the Department for Environment, Food and Rural Affairs to outline how we balance the need for housing and the need to protect the environment and to request consideration of respite from the Housing Delivery Test until this is resolved.”

I can foresee a practical veto for some time to come in relation to housing proposals in the area, bar those which are big enough so as to be able to incorporate their own measures to ensure nitrogen neutrality.

But is anyone focusing on this huge issue, an issue not just for the environment but for the breakdown in practice of the normal planning system in a number of authorities? There has been one piece in the mainstream media, a 14 June 2019 BBC report, Hampshire housing developments on hold over nitrate as well as a more detailed subsequent 19 June 2019 article in Planning magazine (which provided my way into much of this post, thank you Mark Wilding).

It’s not as if Parliament is blind to the issue. After all the House of Commons Environmental Audit Committee published a detailed and pretty direct set of recommendations in its 6 November 2018 report UK Progress on Reducing Nitrate Pollution.

But what chance of any solutions to the immediate crisis on the south coast, please?

Simon Ricketts, 29 June 2019

Personal views, et cetera

No Time To Be 21: Where Are We With Aarhus Costs Protection?

As with blog posts, it is helpful for legislation to have a snappy title.

The United Nations Economic Commission for Europe’s Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters is therefore better known as the Aarhus Convention, after the city in Denmark where it was signed on 25 June 1998.

It currently has 47 parties. The UK ratified it in February 2005, as did the EU.

The Convention has three pillars:

⁃ access to information

⁃ public participation in decision making

⁃ access to justice

You will know that the Aarhus Convention requires that access to justice in environmental matters should be “be fair, equitable, timely and not prohibitively expensive”, a challenging requirement in jurisdictions such as ours where access to justice in environmental matters frequently relies upon access to the High Court and appellate courts thereafter, and where processes are almost by definition prohibitively expensive – not just your own lawyers’ costs (cough) but, if the dice roll the wrong way, your liability for those of the defendant authority.

I last properly blogged on Parliament’s, and the English courts system’s, response to that challenge in my blog post dated 11 March 2017, Aarhus: Caps In The Air Again.

I agreed to speak on this subject at the Kingsland Conference event at King’s College London arranged for this Tuesday to mark the 21st anniversary of the signing of the Convention. If this post whets your appetite to hear that day from much more knowledgeable people than me on every aspect of the Convention’s three pillars, then do sign up.

In itself, the Convention has no direct effect in domestic law and its enforcement is indirect, at member state level via meetings of the parties to the Convention and non-binding communications by the Aarhus Convention Compliance Committee. I say “in itself” because it does have direct effect in domestic law via specific EU directives in relation to environmental protection, which was the basis for the European Court of Justice’s preliminary ruling in Edwards (CJEU, 11 April 2013).

At the time of my March 2017 blog post the Civil Procedure (Amendment) Rules 2017 had just come into force, which tightened up the regime in various ways.

The claimant’s default cap against exposure to the defendant’s legal costs in an Aarhus Convention claim) is still £5k where the claimant is an individual and otherwise £10k, with the default cap on how much the claimant can claim if successful still capped at £35k. The caps apply to each party where there are multiple claimants or multiple defendants.

An Aarhus Convention claim is basically defined as a claim brought by a member of the public, challenging the legality of a decision on grounds which concern environmental matters as defined in Articles 9 (1), (2) and (3) or the Convention, whether the claim is by judicial review, or under two specific forms of statutory review:

⁃ section 289 of the Town and Country Planning Act 1990 (challenges to decisions in relation to enforcement notice appeals)

⁃ section 65 of the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990 ((challenges to decisions in relation to listed building enforcement notice appeals)

The 2017 changes introduced the requirement that, where a claimant brings a claim and is seeking Aarhus costs protection it must say so on the claim form and must file a schedule of financial resources. The court may remove or vary the cap in these circumstances if satisfied that “to do so would not make the costs of the proceedings prohibitively expensive for the claimant“.

Proceedings are to be considered prohibitively expensive if their likely costs (including any court fees which are payable by the claimant) either—

“(a) exceed the financial resources of the claimant, or

(b) are objectively unreasonable having regard to –

(i) the situation of the parties;

(ii) whether the claimant has a reasonable prospect of success;

(iii) the importance of what is at stake for the claimant;

(iv) the importance of what is at stake for the environment;

(v) the complexity of the relevant law and procedure; and

(vi) whether the claim is frivolous“.

Where the court considers the financial resources of the claimant, “it must have regard to any financial support which any person has provided or is likely to provide to the claimant”.

Three aspects of the 2017 rule amendments were challenged by the the RSPB, Friends of the Earth and ClientEarth in R (RSPB) v Secretary of State for Justice (Dove J, 15 September 2017):

1. The ability for the court to vary costs caps at any stage in the litigation would not meet the EU law requirement for “reasonable predictability”

2. No express provision for hearings to be in private when a claimant or a third party supporter’s financial details may be discussed and examined.

3. Uncertainty as to whether the claimant’s own costs of bringing the litigation should be included in any assessment of their financial resources.

Dove J’s judgment is essential reading for an understanding of the background to costs capping in environmental matters, including the domestic and CJEU authorities.

He found against the claimants on the first ground but the issue was addressed in any event by Parliament in the Civil Procedure (Amendment) Rules 2018 which tightened up the procedural rules to make it clear that, save where there is a significant change in circumstances, variation of the caps can only be considered by the court if either the applicant had so requested in his claim form or if the defendant had so requested in his acknowledgement of service.

He found for the claimants on the second ground and the rules have again been changed to specify that hearings in relation to examination of claimants’ financial details must be heard in private.

He found that it was unnecessary to make a formal declaration to deal with the third ground but considered that it was clear that the court may indeed take account of a claimant’s reasonable costs in determining whether proceedings are “prohibitively expensive“.

The 2017 rule amendments defined “environmental matters” by reference to matters falling within the scope of Article 9 (1) to (3) of the Convention. I had wrongly assumed in my previous blog that the effect might be to limit the scope of the procedure but that has not been the case, following the broad meaning given by the Court of Appeal in Secretary of State v Venn (Court of Appeal, 27 November 2014).

I had also wondered whether the reference to “members of the public” in the amended rules might exclude parish councils from seeking Aarhus costs protection, but that assumption may also have been misplaced. At the permission stage of Crondall Parish Council v Secretary of State (Dove J, 14 May 2019), deputy judge John Howell QC accepted that the parish council was indeed a “member of the public”.

The 2017 rule amendments do not extend the automatic costs capping process to the Court of Appeal and beyond. It will be for the appellate court to consider whether the costs of the appeal proceedings will be prohibitively expensive for a party which was a claimant (with no guidance as to how the costs of previous stages in the litigation are to be taken into account).

The UK is still under some international pressure as to its approach to compliance. In its September 2017 decision VI/8k, the Economic Commission for Europe noted that “while the 2017 amendments to the cost protection system in England and Wales introduced some positive improvements, the 2017 amendments overall appear to have moved [the UK] further away from meeting the requirements of its 2014 decision V/9n, namely that the UK should:

“(a) Further review its system for allocating costs in all court procedures subject to article 9, and undertake practical and legislative measures to ensure that the allocation of costs in all such cases is fair and equitable and not prohibitively expensive;

(b) Further consider the establishment of appropriate assistance mechanisms to remove or reduce financial barriers to access to justice;

(d) Put in place the necessary legislative, regulatory and other measures to establish a clear, transparent and consistent framework to implement article 9, paragraph 4, of the Convention”.

Furthermore, “by failing to ensure that private nuisance proceedings within the scope of article 9, paragraph 3, of the Convention, and for which there is no fully adequate alternative procedure, are not prohibitively expensive, the Party concerned fails to comply with article 9, paragraph 4, of the Convention“.

There is also a complaint which is being investigated by the Aarhus Convention Compliance Committee. It is based on (1) the exclusion from current system of automatic costs capping for section 288 challenges of planning appeal decisions and (2) the risk of public disclosure of claimants’ financial means.

The complainant sets out the position as follows:

“In 2008 a property developer sought to obtain planning permission to build an estate of 18 houses in open countryside outside of Ashover, Derbyshire. Permission to carry out this development was refused. The developer then reapplied for planning permission to develop 26 houses in 2014 and again in 2015. These applications were both refused. An appeal was made against the most recent decision and an Inspector was appointed by the Secretary of State for Communities and Local Government to hear the evidence and make a recommendation to the Secretary of State. After hearing all evidence over a four-day period and visiting the site the Inspector recommended that the appeal be dismissed and planning permission be refused. The Secretary of State disagreed with his Inspector’s recommendation, allowed the appeal, and granted planning permission.

Challenging the Decision

Objectors to the development sought a legal opinion on challenging the Secretary of State’s decision. It was the opinion of counsel that challenging the Secretary of State’s decision would be extremely costly and could fail. The costs protection regime for “Aarhus claims” would not be available for challenges to decisions of the Secretary of State even though the only difference rendering it inapplicable was the identity of the decision-maker. As a result of the uncertainty as to costs no member of the public had the appetite to challenge the decision.

We have been made aware that amendments were made to Part 45 Section VII of England and Wales’ Civil Procedure Rules (“CPR”) (“The 2017 Amendments”) on 28th February 2017. These mean that any claimant or a third party supporter of a claim now risks public disclosure of their financial means.”

DEFRA’s response dated 8 March 2019 is interesting:

1. Section 288 challenges will be brought within the scope of the rules later this year.

2. The new Civil Procedure (Amendment) Rules 2019 change the criteria as to when a hearing will be held in private but one of the criteria is whether “it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality“.

There do remain various open questions, for instance:

1. Post-Brexit, how will we see the Government flesh out the principle outlined in the draft Environment (Principles and Governance) Bill of “access to justice in relation to environmental matters“?

2. Does the current process give claimants “reasonable predictability“?

2. What are the practical risks for a defendant, in terms of potentially thereby elongating proceedings, in seeking to vary or remove a costs cap?

3. What effects are the changes having in practice on potential claimants as well as third party funders?

4. Where there is no Aarhus costs protection, are we going to see more applications for security for costs by defendants: the £250,000 required of Heathrow Hub Limited for example in the recent Heathrow proceedings (to be heard in the Court of Appeal in November) or the £60,000 required of the claimant in We Love Hackney v London Borough of Hackney (Farbey J, 17 April 2019).

Happy birthday, Aarhus Convention. Let them eat cake?

Simon Ricketts, 22 June 2019

Personal views, et cetera

National Lottery: 2 Problematic Recovered Appeal Decisions

The exercise of the Secretary of State’s power to call in applications and recover appeals for his own determination is inherently politically charged.

This blog post focuses on two recent recovered appeals. The other reverse lottery, of call in, is for another day.

The Secretary of State’s policy as to recovering appeals is handily summarised in section 6 of the House of Commons briefing paper Calling-in applications (England).

Wavendon, Woburn Sands

If anyone thinks that the Secretary of State’s intervention in this case did anything other than, at the request of a fellow MP, frustrate or delay the delivery of homes in accordance with national policy, and in so doing place unjustified financial pressure on an SME housebuilder, then do let me know.

This relates to a relatively small proposal for the development of 203 homes at Woburn Sands, Buckinghamshire. The application was made to Milton Keynes Council in July 2016 and refused in December 2016, against officers’ recommendations.

The developer, Storey Homes, appeals. An inquiry takes place over six days in July 2017, with an extremely experienced inspector, David Cullingford.

The proposal is locally controversial, with various objectors appearing at the inquiry, including three councillors. I can only assume that objectors are spooked by the way the inquiry goes because in August 2017 the councillors then ask the then planning minister to recover the appeal for the Secretary of State’s own determination. The request is refused. But they don’t stop there.

As reported at the time in MK Citizen (2 November 2017) local Conservative MP Iain Stewart then writes a billet doux to the then Secretary of State:

“The letter […] starts with ‘Dear Sajid’, and thanks him for his “kind” email on Mr Stewart’s election to the government’s transport committee.

It states: “I implore you to intervene in any way you can to at least delay the announcement of the Inspector’s decision.”

It ends: “Yours ever, Iain”

Anyway the charm works, and the appeal is recovered on 31 October 2017.

There is then an elongated period of post-inquiry correspondence. The most significant issue was whether Milton Keynes Council could show five years’ housing supply or whether the NPPF tilted balance applied. All the evidence points to the position being as shown by the appellant at the inquiry – less than five years’ supply.

It turns out that the objectors were right to be worried by the way the inquiry had gone. When the Secretary of State published his decision letter on 5 December 2018, they could see that the inspector in his 2 February 2018 report had indeed recommended that the appeal be allowed, finding that there was less than five years’ housing supply and that taking all considerations into account he considered “that the planning balance in this case is firmly in favour of the scheme. The benefits of this sustainable housing proposal would significantly and demonstrably outweigh the adverse impacts elicited.”

But hey never mind, babychams all round, Mr Stewart’s intervention had done the job for the objectors because the Secretary of State’s decision was to reject the inspector’s recommendation and dismiss the appeal. On the basis of some not fully explained calculations, the Secretary of State determined that there was indeed five years’ supply: “Taking all these factors into consideration, he considers that on the basis of the evidence put forward at this inquiry, estimated deliverable supply is roughly in the region of 10,000– 10,500. The Secretary of State therefore considers that the housing land supply is approximately 5.9–6.2 years. He notes that on this basis, even if the emerging plan figure of 1,766 were used (1,854 with a 5% buffer added), as the agent proposes, there would still be an estimated deliverable housing land supply of over 5 years.”

This conclusion of course meant that the tilted balance in what is now para 11(d) of the 2019 NPPF did not apply, “the policies which are most important” for determining the appeal were not automatically to be treated as out of date and he could therefore find that the proposal “conflicts with development plan policies relating to development outside settlement boundaries and density. He further considers that it is in conflict with the development plan as a whole.

The Secretary of State considers that the housing benefits of the scheme carry significant weight and the economic benefits carry moderate weight in favour of the proposal.

The Secretary of State considers that the low density of the appeal proposal carries significant weight against the proposal, while the location in unallocated open countryside outside the development boundary of Woburn Sands carries moderate weight, and the impact on the character of the area carries limited weight. He further considers that the minimal harm to the listed building carries little weight and that the public benefits of the scheme outbalance this ‘less than substantial’ harm. The heritage test under paragraph 196 of the Framework is therefore favourable to the proposal.

The Secretary of State considers that there are no material considerations which indicate the proposal should be determined other than in accordance with the development plan. He therefore concludes that the appeal should be dismissed, and planning permission should be refused.”

Many would have given up this apparent lottery at that point, but all credit to Storey and to their legal team, Peter Goatley and James Corbet Burcher (No 5 chambers) together with Stephen Webb (Clyde and Co). The decision was duly challenged in the High Court and has now been quashed by Dove J in Wavendon Properties Limited v Secretary of State (Dove J, 14 June 2019)

The judge found the Secretary of State’s reasoning to be inadequate in relation to the critical question as to whether there was five years’ supply of housing land:

“All of these factors lead me to the conclusion that the reasons provided by the First Defendant in relation to the figure were not adequate in the particular and perhaps unusual circumstances of this case. By simply asserting the figures as his conclusion, the First Defendant has failed to provide any explanation as to what he has done with the materials before him in order to arrive at that conclusion, bearing in mind that it would have been self-evident that it was a contentious conclusion. Simply asserting the figures does not enable any understanding of what the First Defendant made of the Inspector’s conclusions which he accepted in paragraph 17 of the decision letter, and how they were taken into account in arriving at the final figures in his range.”

“I accept the Claimant’s submission that the need for the range to be in some way explained is not requiring reasons for reasons, it is simply requiring reasons for a conclusion which was pivotal in relation to the application of the tilted balance in this case, and which derived from figures which had not been canvassed as an answer to the question of what the Second Defendant’s housing land supply was anywhere in any of the material before the First Defendant prior to the decision letter.”

In passing, there are two other interesting aspects to the judgment:

1. An analysis of what is meant in paragraph 11(d) of the NPPF, when, separate from questions of five years’ supply, you are considering whether “the policies which are most important for determining the application are out-of-date“. Unsurprisingly, Dove J concluded that this is “neither a rule nor a tick box instruction. The language does not warrant the conclusion that it requires every one of the most important policies to be up-of-date before the tilted balance is not to be engaged. In my view the plain words of the policy clearly require that having established which are the policies most important for determining the application, and having examined each of them in relation to the question of whether or not they are out of date applying the current Framework and the approach set out in the Bloor case, an overall judgment must be formed as to whether or not taken as a whole these policies are to regarded as out-of-date for the purpose of the decision.”

2. The judge’s agreement with the Secretary of State that a section 106 planning obligation by the housebuilder to use its reasonable endeavours to build out the development within five years of the council approving the last reserved matters application was not a material consideration to be taken into account. One to return to, once perhaps we see the Government’s promised green paper on measures to improve delivery and other matters.

Of course the housebuilder is not yet out of the woods. Back the appeal will go to the Secretary of State of the day for redetermination as against whatever the housing supply position, and national policy position, happens to be at that time, whenever it will be. The problem doesn’t just lie in the arbitrary nature of the recovery process (it is particularly wrong that appeals can be recovered even after the inquiry has concluded) but with the glacial pace of appeals (until the anticipated brave new world of Rosewell) which means that no-one ever knows what the policy or housing supply/delivery position is going to be when any decision is finally taken, let alone which minister will be sitting at the relevant desk.

I note that an application by the housebuilder for specific disclosure against the Secretary of State did not need to be determined by the judge in the light of his ruling. No doubt this was for civil servants’ internal recommendations to ministers before those decisions were taken in relation to the appeal, including potentially its recovery in the first place. Now wouldn’t that make interesting reading?

Sainsbury’s, Cambridge Heath Road

Last week we saw another decision by the Secretary of State to dismiss an appeal against the recommendations of his inspector. This was the decision letter dated 10 June 2019 in relation to an appeal by Sainsbury’s following the non-determination by the London Borough of Tower Hamlets of its application for planning permission for “a replacement Sainsbury’s store, an ‘explore learning’ facility, flexible retail/office/community floorspace, 471 residential units arranged in 8 blocks, an energy centre and plant at basement level, 240 ‘retail’ car parking spaces and 40 disabled car parking spaces for use by the proposed residential units, two additional disabled units proposed at Merceron Street, creation of an east-west public realm route from Cambridge Heath Road to Brady Street and public realm provision and enhancements, associated highway works to Brady Street, Merceron Street, Darling Row and Collingwood Street and Cambridge Heath Road“.

Again, an experienced inspector, David Nicholson, had recommended approval in a nuanced report, following a lengthy inquiry. There was one issue where clearly he was not convinced by the proposals, namely the location of the affordable housing within the scheme:

“In describing the main entrance to the AH as poor doors, it drew attention not only to the simple design but also to the position of these at the north end of the scheme. Unlike the private units, this would put them at the greatest walking distances from public transport, shops and services. The podium barrier would not only divide the types of tenure, but also separate the amenity and play space areas as well as extend the walking distances (although access to these could be addressed through condition 43). Although more than one witness was questioned on this, no persuasive explanation was given as to why the units were separated in this way.”

The inspector pragmatically recommended that if the Secretary of State were to share these concerns “then he should seek an alternative arrangement through a further s106 Agreement“.

“To a very small extent this concern was addressed by the revised s106 Agreement which would include a few shared ownership units on the other side of the proposed barrier. Nevertheless, the location of vast majority of the AH, including all the rented housing, would be both at the far end of the site and altogether rather than integrated, and this counts heavily against the benefits of the AH“.

The Secretary of State in his decision letter appears to agree with almost all of the inspector’s conclusions but the “poor doors” concern appears to be the tipping point:

“The Secretary of State has further considered the fact that the social rented housing is positioned at the north end of the scheme, at the greatest walking distance from public transport, shops and services, and that the podium barrier would not only divide the types of tenure, but also separate the amenity and play space areas. He notes the Inspector’s comment that no persuasive explanation was given as to why the units were separated in this way (IR11.33). He agrees with the Inspector that to a very small extent this would be addressed by the inclusion of a few shared ownership units on the other side of the proposed barrier, and has taken into account that condition 43 requires the measures for providing access to be approved. Nonetheless the location of the vast majority of the affordable housing, including all the rented housing, would be both at the far end of the site, and all together rather than integrated (IR11.34).

In assessing the implications of this, the Secretary of State has taken into account that the Framework aims not just to deliver raw housing numbers, but to achieve healthy, inclusive and safe places (paragraph 91). He considers that the separation of the affordable housing, amenity and place space areas is not in keeping with the aims of paragraph 91(a) to achieve inclusive places that promote social interaction, including opportunities for meetings between people who would not otherwise come into contact with each other. The Secretary of State considers that this carries substantial weight against the proposal.

The Secretary of State has considered the Inspector’s comment at IR11.33 that if the Secretary of State shares his concerns, then he should seek an alternative arrangement through a further s.106 agreement. However, the Secretary of State notes that previous concerns about this matter which were addressed by a revised s.106 agreement only resulted in the inclusion of a few shared ownership units on the other side of the proposed barrier (IR11.34). He therefore considers that a seeking more fundamental changes via further revisions to the s.106 agreement is unlikely to be successful. He has also taken into account that other matters also weigh against a grant of permission. Overall he does not consider that a ‘minded to allow’ letter would be an appropriate approach in this case.”

He dismisses the appeal.

Whatever the rights and wrongs of the proposal itself, was it right not to give the appellant a short opportunity to complete a further section 106 agreement so as to address this concern? On the one hand it could have led to an appropriate form of development that would deliver much needed housing. Or it could all have proved too much for the appellant to swallow, or too complicated without scheme changes, in which case at least the opportunity would have been given.

Presumably the scheme will now be reworked, at significant expense and delaying any start on site.

I thought we were in a housing crisis – more, better, faster? And yes of course the developer could have got the scheme “better” to begin with but no doubt with a hit to viability and therefore potentially the amount of affordable housing to be provided – that’s the balance.

But is there really no room for procedural solutions such as this? Or, in the case, of Woburn Sands, de-recovery?

Simon Ricketts, 15 June 2019

Personal views, et cetera

The Bottom Line: Updates On CIL And Viability

“Out of the blue and into the black

You pay for this, but they give you that

And once you’re gone, you can’t come back

When you’re out of the blue and into the black.”

(Neil Young)

Two double act dates for the diary:

12 July (Bob Dylan and Neil Young, Hyde Park)

1 September (CIL amendment regulations due to come into force, RICS professional statement on financial viability in planning takes effect).

I was going to force myself to write a dull, worthy and academic blog post on one of these, but I know what you want so 1 September it is.

CIL

The Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019 were finally laid before Parliament on 4 June 2019. They will be debated in the House of Commons and, assuming they receive an affirmative resolution, will come into force on 1 September 2019.

There was an accompanying press release, Communities to benefit from new housing infrastructure rules, and, more informatively, a more detailed document, Government response to reforming developer contributions.

Further regulations will follow:

“The Government intends to lay the secondary legislation which will enable the delivery of starter homes later this year. Therefore, the Government also intends to introduce the regulations for the exemption of starter homes from the Levy later in the year.”

There has been some attempt at consolidation (although a single set of consolidating regulations really is overdue for those, particularly non-lawyers, without access to expensive online legal information subscription services):

“The Government recognises that unconsolidated regulations can be challenging to understand, and that this challenge can be particularly acute when calculating Levy liabilities. To increase usability the Government has consolidated all regulations relating to the calculation of Levy liabilities into a single schedule. The Government will consider fully consolidating the regulations when any further regulatory amendments are made.”

There will be some simplification in terms of access to information on indexation:

“The Regulations have instead been amended to improve the transparency around indexation, while retaining the existing approach by indexing the Levy to the Building Cost Information Service’s (BCIS) All-in Tender Prices Index. The Government has asked the Royal Institution of Chartered Surveyors to produce a bespoke index for the Levy, based on BCIS. This will be produced annually and be made publicly available. The index will not change through the year, as BCIS forecasts can at present. The Government will review guidance to improve clarity, including making clear that from 1 January each year, the latest index figure produced by the Institution should apply. The Government also proposes to retain the proposal for charging authorities to produce annual rate summaries, which will further improve transparency, in particular for smaller developers. The changes to regulations will address several issues raised during consultation regarding how the existing approach to indexation is implemented.”

There are also some other detailed fixes of previous glitches, but largely the Regulations are as foreshadowed in its Reforming developer contributions Technical consultation on draft regulations (December 2018) and before that in its document Government response to supporting housing delivery through developer contributions: A summary of consultation responses and the Government’s view on the way forward (October 2018) which was the subject of my 9 November 2018 blog post An Update On CIL: Reform Promised, Meanwhile Continuing & Increasingly Expensive Uncertainties.

It really is the Never Ending Tour.

Viability

The RICS published its professional statement on Financial viability in planning: conduct and reporting on 28 May 2019, which comprises fourteen mandatory requirements which chartered surveyors must observe when carrying out financial viability assessments in a planning context. It is all strong stuff, not just vague exhortations of good practice. Breaches will be a disciplinary matter for the RICS member and his or her firm: “Sections within professional statements that use the word ‘must’ set mandatory professional, behavioural, competence and/or technical requirements, from which members must not depart.”

The RICS covering statement says this:

“Dissatisfaction has been expressed among some stakeholders in the sector about the standards to which viability assessments are being produced. The concerns extend from public representatives, the development sector, community groups and decision makers all of whom rely on viability assessments in a key public interest area. Questions about objectivity, conflicts of interest, transparency and contingency fees among others have been raised about those working for both the private and public sectors. While not all viability assessments are undertaken by chartered surveyors, in response RICS has strengthened our advice on these areas, the professional conduct of chartered surveyors and regulated firms undertaking viability assessments and the essential information which should be reported so that informed decisions may be taken transparently.

We have also produced this professional statement in recognition of the Mr Justice Holgate’s comments in the Parkhurst Road case requesting professionals to contribute to a more efficient public administration of planning. His further comments on the technical aspects of viability will be addressed in the review of our guidance note which will go to consultation over summer 2019.”

I covered those comments from Holgate J in my 27 April 2018 blog post Pointers From Parkhurst.

These are the key requirements:

“The RICS member carrying out the FVA must be a suitably qualified practitioner.”

“The report must include a statement that, when carrying out FVAs and reviews, RICS members have acted:

• with objectivity

• impartially

• without interference and

• with reference to all appropriate available sources of information.
This applies both to those acting on behalf of applicants as well as those acting on behalf of the decision-makers.”

⁃“Terms of engagement must be set out clearly and should be included in all reports. The RICS professional statement Conflicts of interest (1st edition, 2017) applies, but with the additional requirement that RICS members acting on behalf of all those involved must confirm that no conflict or risk of conflict of interest exists (see Conflicts of interest paragraph 1.1). The professional statement allows ‘informed consent’ management, which, subject to the circumstances, can be both pragmatic and appropriate. This should take the form of a declaration statement.”

⁃“A statement must be provided confirming that, in preparing a report, no performance- related or contingent fees have been agreed.”

⁃“Transparency and fairness are key to the effective operation of the planning process. The PPG (paragraph 021, reference ID 10-021-20190509) states that:

‘Any viability assessment should be prepared on the basis that it will be made publicly available other than in exceptional circumstances.’

Although certain information may need to remain confidential, FVAs should in general be based around market- rather than client-specific information.

Where information may compromise delivery of the proposed application scheme
or infringe other statutory and regulatory requirements, these exceptions must be discussed and agreed with the LPA and documented early in the process. Commercially sensitive information can be presented in aggregate form following these discussions. Any sensitive personal information should not be made public.”

“Before accepting instructions, if RICS members are advising either the applicant or the LPA on a planning application and have previously provided advice, or where they are providing ongoing advice in area-wide FVAs to help formulate policy, this must be declared.”

“All inputs into an appraisal must be reasonably justified. Where a reviewer disagrees with a submitted report and/or with elements in it, differences must be clearly set out with supporting and reasonable justi cation. Where inputs are agreed, this must also be clearly stated. Where possible, practitioners should always try to resolve differences of opinion.”

“In the interest of transparency, when providing benchmark land value in accordance with the PPG for an FVA, RICS members must report the:

•current use value – CUV, referred to as EUV or first component in the PPG (see paragraph 015 reference ID: 10-015-20190509). This equivalent use of terms – i.e. that CUV and EUV are often interchangeable – is dealt with in paragraph 150.1 of IVS 104 Bases of Value (2017)

•premium – second component as set out in the PPG (see paragraph 016 reference ID: 10-016-20190509)

•market evidence as adjusted in accordance with the PPG (see PPG paragraph 016 reference ID: 10-016-20190509)

•all supporting considerations, assumptions and justi cations adopted including valuation reports, where available (see PPG paragraphs 014 reference ID: 10-014-20190509; 015 reference ID: 10-015-20190509; and 016 reference ID: 10- 016-20190509)

•alternative use value as appropriate (market value on the special assumption of a specified alternative use; see PPG paragraph 017 reference ID: 10-017-20190509). It will not be appropriate to report an alternative use value where it does not exist.
A statement must be included in the FVA or review of the applicant’s FVA or area-wide FVA that explains how market evidence and other supporting information has been analysed and, as appropriate, adjusted to reflect existing or emerging planning policy and other relevant considerations.

“During the viability process there must be a clear distinction between preparing and reviewing a viability report and subsequent negotiations.”

“All FVAs and subsequent reviews must provide a sensitivity analysis of the results and an accompanying explanation and interpretation of respective calculations on viability, having regard to risks and an appropriate return(s).”

“At all stages of the viability process, RICS members must advocate reasonable, transparent and appropriate engagement between the parties, having regard to the circumstances of each case. This must be agreed and documented between the parties.”

“For applicants, subsequent reviews and plan-making, FVAs must be accompanied by non-technical summaries of the report so that non-specialists can better understand them. The summary must include key gures and issues that support the conclusions drawn from the assessment and also be consistent with the PPG”

“Reports on behalf of both applicants and the authority must be formally signed off and dated by the individuals who have carried out the exercises. Their respective qualifications should also be included.”

“All contributions to reports relating to assessments of viability, on behalf of both the applicants and authorities, must comply with these mandatory requirements. Determining the competency of subcontractors is the responsibility of the RICS member or RICS-regulated firm.”

“RICS members must ensure that they have allowed adequate time to produce (and review) FVAs proportionate to the scale of the project, area-wide assessment and specific instruction. They must set out clear timeframes for completing work. If the timeframes need to be extended, the reasons must be clearly stated, both at the time and in the subsequent report.”

Well done technical author, Gerald Eve’s Robert Fourt, and his working group:

Jeremy Edge FRICS (Edge Planning)

Nigel Jones FRICS (Chesters Commercial)

Jacob Kut MRICS (Avison Young)

Simon Radford FRICS, Chair (Lothbury Investment Management)

Charles Solomon MRICS (GLA)
Peter Wyatt MRICS (Reading University)

(Albeit a very male group).

It may be that the stable door has already bolted but I do hope that the professional red lines in the statement give some reassurance that viability figures are not cooked up behind closed doors without appropriate professional discipline being applied, and strengthen surveyors’ position in discussions with their clients, whether from the private or public sectors.

The professional statement is separate from RICS guidance as to how to carry out financial viability appraisals in accordance with government policy, which is now very out of date. The professional statement says this:

“Since the publication of the NPPF 2018 and PPG 2018 (as updated in 2019) RICS has also been reviewing its 2012 guidance note to align it with the changed emphasis in current government policy; a second edition is forthcoming.”

The Government’s PPG guidance on viability was tweaked again on 9 May 2019. Having been through it and flagged changes from the previous 24 July 2018 version, I can’t really improve upon this summary, from the day it was published, by Matthew Spilsbury (Turley).

Hey hey, my my.

Simon Ricketts, 8 June 2019

Personal views, et cetera

Chickens**t EIA

An interesting example last week of the legal pitfalls should planning permission be granted on the basis of inadequate environmental impact assessment.

Interesting partly because although the messages read straight across to all EIA development, including the glitziest of urban development projects, the specific question arose in a very different context:

Did a local planning authority, when granting planning permission for an intensive poultry-rearing facility, fail to consider the likely effects of odour and dust arising from the disposal of manure?

The basis for the error was a misplaced assumption that certain effects would be controlled by other regulatory processes. That is an issue which potentially arises in various development contexts.

The case is R (Squire) v Shropshire Council (Court of Appeal, 24 May 2019), with Lindblom LJ giving the lead judgment.

For a summary of the case, apologies but I will plug again Town’s “free to subscribe” weekly updating service that covers all Planning Court cases and appeals from the Planning Court. The case is summarised by my colleague Paul Arnett in the latest update.

There is much in the judgment about the proper interpretation of environmental permits under the IPPC regime and the extent to which a local planning authority should impose conditions to control matters which may in theory be controlled by other legislation where the regulator under that legislation (in this case the Environment Agency) has indicated that in practice it would not enforce, but what was particularly interesting to me was Lindblom LJ’s conclusion that at first instance Deputy Judge Rhodri Price Lewis QC “was wrong to conclude that the EIA undertaken for the proposed development – in particular the assessment of the likely effects of odour and dust arising from the storage and spreading of manure – was adequate and lawful.”

The “project description” part of the environmental statement explained what was proposed:

“In chapter 3, “Description of development”, in the “Project Description”, it explained that “[at] the end of each flock cycle, the buildings are cleaned out and the manure removed … and loaded directly in waiting vehicles, which are sheeted and the manure removed from the site for disposal as a sustainable fertiliser on agricultural land.”

The claimant, Ms Squire, was concerned that the 2,322 tonnes of manure to be produced annually would be disposed of by spreading it on farmland close to residential areas, including farmland not not owned by the prospective operator of the facility, Mr Bower. So how were the potential effects in terms of odour and dust, from these proposals, assessed in the environmental statement?

In its assessment of likely significant effects in the environment, the environmental statement relied significantly on an environmental permit that had been issued by the Environment Agency to Mr Bower to cover the activities proposed on his land.

“In chapter 9, “Environmental Management”, under the heading “Assessment”, it acknowledged (in paragraph 9.2) the requirement for “an IPPC permit … administered by the Environment Agency”. It said that “[the] permit must take into account the whole environmental performance of the plant, covering e.g. emissions to air, water and land, generation of waste …”, and also this:

“9.2 … As the proposed poultry unit will be controlled under the IPPC permitting regime, the likelihood of significant impact on the environment from the proposed development is negligible due to the strict regime of control.”

On “Odour Management”, it said that “[the] development [has] been assessed as part of the IPPC permit application and deemed acceptable subject to odour control conditions”, and that “[the] site is subject to the IPPC permit conditions which requires emissions from the activities shall be free from odour at levels likely to cause pollution outside the site” (paragraph 9.4). On “Dust”, it said that “[the] results of the DEFRA research project demonstrated that emissions from poultry units in terms of particulate matter reduced to background levels by 100m downwind of … even the highest emitting poultry houses” (paragraph 9.7). On “Manure Disposal”, it said (in paragraph 9.11):

“9.11 The proposed poultry units will operate on a floor litter basis and will generate poultry manure. The manure will be disposed of through use as a sustainable agricultural fertiliser. The [applicant’s] manure management plan is attached to this statement as Appendix 4.”

The “Summary” in paragraph 9.16 said this:

“9.16 The operation of the site is subject to the rigorous controls of the Environment Agency’s IPPC permitting regime. The site is required to operate to Best Available Techniques and the conditions of the permit require the site to be free from pollution.”

However, the Environment Agency’s response to consultation had made it clear that “[f]or the avoidance of doubt we we would not control any issues arising from activities outside of the permit installation boundary“.

Lindblom LJ noted the following in relation to the environmental statement:

⁃ it did not identify the third party land on which manure was going to be spread.

⁃ there was no meaningful assessment of the effects of odour and dust from the spreading of manure, either on Mr Bower’s land or on any other farmer’s. “It did not seek to anticipate the content of any future manure management plan, including the fields to which it would relate, or the arrangements that would be undertaken for the storage and spreading of manure. It did not attempt to predict and assess the polluting effects of those activities either on land owned by Mr Bower, or on other land to which the manure management plan would not relate. The Manure Management Report did not venture to assess the effects of the arrangements to which it referred. In short, there was no relevant assessment.”

⁃ “it cannot simply be inferred from the relevant parts of the environmental statement that its authors had concluded that the proposed storage and spreading of manure on farmland was not a potential source of pollution, including odour and dust, with significant effects on the environment, which ought to be addressed in determining the application for planning permission. Those who prepared the environmental statement – and Cymru ADAS Wales, who prepared the Manure Management Report in Appendix 4 – were of course entitled to assume that the Environment Agency would perform its regulatory functions as it should, and as far as they went (see my judgment in Preston New Road Action Group v Secretary of State for Communities and Local Government [2018] Env. L.R. 18, at paragraphs 89 to 93; the judgment of Glidewell L.J. in Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1995] Env. L.R. 37, at p.49; and the judgment of Gilbart J. in Frack Free Balcombe Residents’ Association v West Sussex County Council [2014] EWHC 4108 (Admin), at paragraph 100). The control that would be exerted by the Environment Agency through the environmental permit was clearly a factor they had in mind. However, they did not attempt to relate that control to the spreading of manure on land to which the permit and its conditions would not apply. Nor did they consider whether a gap would exist between the control under the permit and such control as could be exercised through restrictions and requirements imposed in the planning process. The Manure Management Report touched upon measures by which harmful effects on the environment might be reduced. But it did not consider what measures were likely to be applied on third party land, in what form such measures might be imposed as requirements attached to the planning permission – whether by conditions or by a planning obligation under section 106 of the Town and Country Planning Act 1990 – or how effective they were likely to be in reducing the effects of odour and dust.”

⁃ “the future manure management plan to which the planning officer referred in paragraph 6.7.5 of his report was not a substitute for the assessment lacking in the environmental statement. Not only was it yet to come into existence, but even when it did it was only going to relate to the storage and spreading of manure on Mr Bower’s own land, and not to the substantial quantities that were going to have to be disposed of elsewhere.”

The judge concluded:

“In my view, therefore, the environmental statement was deficient in its lack of a proper assessment of the environmental impacts of the storage and spreading of manure as an indirect effect of the proposed development. In this respect it was not compliant with the requirements of the EIA Directive and the EIA regulations.”

The judge then considered whether any advice in the report to committee satisfactorily addressed the inadequacies in the environmental statement. There was not. Nothing “went beyond generalities“.

He therefore allowed the appeal – the planning permission had been issued unlawfully.

Before deciding to quash the permission, Lindblom LJ then considered whether under section 31 (2A) of the Senior Courts Act 1981, the permission should not be quashed on the basis that it was highly likely that the council’s decision would have been substantially different had the legal error not occurred. Mr Bower sought to argue that the position had changed because, after the proceedings had been issued, he had entered into a section 106 unilateral undertaking so as to control the effects arising by way of a manure management plan. The judge did not consider that the undertaking saved the permission from being quashed:

“The planning obligation itself illustrates some of the uncertainties persisting at the time of the council’s decision. It does not, however, overcome the lack of a proper assessment of the environmental effects of odour and dust in the EIA. There is, in my view, no justification here for withholding an order to quash the planning permission, which will enable the council, when redetermining the application, to ensure that the requirements of the EIA Directive and the EIA regulations are properly complied with“.

The lesson is to make sure that any environmental statement properly assesses all direct and indirect environmental effects that are likely to arise from a development, without reaching unwarranted assumptions that effects will be limited, or that mitigation will be achieved, by way of separate regulatory processes. If the local planning authority considers that the assessment is inadequate it should require further environmental information to be provided (following the procedure set out in regulation 25 of the 2017 Environmental Impact Assessment Regulations). I am surprised that the court was even prepared to consider whether deficiencies were in practice remedied by any analysis in the committee report, and not surprised that the belated decision to enter into a section 106 unilateral undertaking did not save the day.

This is no Chicken Little message that the sky is falling, but Squire is certainly a reminder of the care that is needed, particularly in relation to environmental impact assessment, in order to avoid landing in the unpleasant stuff.

Simon Ricketts, 1 June 2019

Personal views, et cetera