Month: February 2020

Starter Homes Were A Non Starter – What Future For First Homes?

Government is consulting on the “design and delivery” of First Homes. The deadline for responses is 3 April 2020. First Homes was of course a manifesto pledge and so there are no questions as to whether the concept itself is supportable or indeed practical.

That is a shame, given the failure of the Starter Homes initiative after so much work and public expenditure. As explained in my 4 March 2017 blog post Definitely Maybe: Defining Affordable Housing, an elaborate structure was arrived at by way of chapter 1 of the Housing and Planning Act 2016 and a technical consultation by the Government in March 2016:

– a legal requirement that 20% of new homes in developments should be starter homes, ie

⁃ to be sold at a discount of at least 20% to open market value to first time buyers aged under 40. 

⁃ Price cap of £250,000 (£450,000 in London)

– The restriction should last for a defined number of years, the first suggestion being five years, replaced with the concept of a tapered restriction to potentially eight years

– Commuted sums in lieu of on site provision for specified categories of development, eg build to rent.

The Government’s response to the technical consultation then significantly watered down the starter home concept, to the extent that the legislation was surplus to requirements (it is still on the statute book, just left hanging):

– There would be no statutory requirement on local planning authorities to secure starter homes, just a policy requirement in the NPPF, which was to be amended accordingly. 

– Rather than requiring that 20% of new homes be starter homes, the requirement would be that 10% of new homes will be “affordable housing home ownership products” so could include shared equity or indeed low cost home ownership. 

– maximum eligible household income of £80,000 a year or less (or £90,000 a year or less in Greater London 

– 15 year restriction

– No cash buyers, evidence of mortgage of at least 25% loan to value

– Only be applicable to schemes of ten units or more (or on sites of more than 0.5h). 

The only reference to starter homes in the February 2019 version of the NPPF is in the glossary’s definition of affordable homes:

“b) Starter homes: is as specified in Sections 2 and 3 of the Housing and Planning Act 2016 and any secondary legislation made under these sections. The definition of a starter home should reflect the meaning set out in statute and any such secondary legislation at the time of plan-preparation or decision-making. Where secondary legislation has the effect of limiting a household’s eligibility to purchase a starter home to those with a particular maximum level of household income, those restrictions should be used.”

Paragraph 64 of the NPPF of course requires:

“Where major development involving the provision of housing is proposed, planning policies and decisions should expect at least 10% of the homes to be available for affordable home ownership, unless this would exceed the level of affordable housing required in the area, or significantly prejudice the ability to meet the identified affordable housing needs of specific groups. Exemptions to this 10% requirement should also be made where the site or proposed development:

a) provides solely for Build to Rent homes;

b) provides specialist accommodation for a group of people with specific needs (such as purpose-built accommodation for the elderly or students);

c) is proposed to be developed by people who wish to build or commission their own homes; or

d) is exclusively for affordable housing, an entry-level exception site or a rural exception site.”

Going back to the NPPF affordable housing definition, aside from starter homes the other two listed categories of affordable home ownership are:

“c) Discounted market sales housing: is that sold at a discount of at least 20% below local market value. Eligibility is determined with regard to local incomes and local house prices. Provisions should be in place to ensure housing remains at a discount for future eligible households.

d) Other affordable routes to home ownership: is housing provided for sale that provides a route to ownership for those who could not achieve home ownership through the market. It includes shared ownership, relevant equity loans, other low cost homes for sale (at a price equivalent to at least 20% below local market value) and rent to buy (which includes a period of intermediate rent). Where public grant funding is provided, there should be provisions for the homes to remain at an affordable price for future eligible households, or for any receipts to be recycled for alternative affordable housing provision, or refunded to Government or the relevant authority specified in the funding agreement.”

Of these different affordable home ownership options (using the Government jargon, I appreciate that what is “affordable” is an open question), starter homes were abandoned by the Government as a concept after a huge amount of money and time had been spent. The National Audit Office’s Investigation into Starter Homes (4 November 2019) found as follows:

“In April 2015, the Conservative Party manifesto committed to “200,000 Starter Homes, which will be sold at a 20% discount and will be built exclusively for first-time buyers under the age of 40”. The November 2015 Spending Review subsequently provided £2.3 billion to support the delivery of 60,000 Starter Homes (of the 200,000 previously announced). The Housing and Planning Act (2016) set out the legislative framework for Starter Homes and the Department ran a consultation on Starter Homes Regulations (the regulations) between March and June 2016.

Between 2015 and 2018, government’s policy towards Starter Homes shifted.

In May 2018, the Minister of State for Housing and Planning stated that the government had spent an estimated £250 million of the Starter Homes Land Fund. In July 2018, the Department clarified that it had spent £250 million buying land to build affordable properties from two funds, the Starter Homes Land Fund and the Land Assembly Fund, with work under way to get the land ready for development, but that building had not yet started.”

“No Starter Homes have been built to date.”

“The Starter Homes legislative provisions are not yet in force.”

“The Department no longer has a budget dedicated to the delivery of Starter Homes.”

“Between 2015-16 and 2017-18, the Department spent almost £174 million preparing sites originally intended for building Starter Homes.”

“In 2015-16, Homes England spent £15.4 million of the Starter Homes 2015 funding preparing brownfield land.”

“Since August 2015 the Department has spent £6.45 million supporting local authorities through the Programme.”

“In 2016-17 and 2017-18, the Department spent £151 million under the

[Starter Homes Land Fund], but the spending has not supported the building of Starter Homes.”

“In 2017-18, the Department spent £97 million from the SHLF, but under [Land Assembly Fund] criteria, on acquiring land needing work and preparing it for the market”

No doubt some of the monies earmarked for starter homes may have ended up going towards other housing and affordable housing initiatives (I am not clear on that) but surely what an embarrassment this is for whoever first came up with the bright idea that was starter homes.

However, moving on from that failure, of course the thing to do is to learn from past mistakes? Why didn’t it work? What could have been done better? This is the essence of “black box thinking”. I was certainly not the only one pointing out the potential complexities that might prove its downfall (See my 21 June 2016 blog post Valuing Starter Homes).

But of course there is a insatiable political hunger for new ideas for manifestos, and in the December 2019 Conservative manifesto a concept of First Homes was trumpeted as the new solution to “making the dream of home ownership a reality for everyone” (to quote from the latest consultation document).

The initiative was formally launched on 7 February 2020 with a one page guide and more detailed consultation document.

The headlines are set out in the guide:

• First Homes are flats and houses built on developments up and down the country. They will be no different from other properties except they will be sold with a discount of at least 30 percent.

• They will be sold to local people who want to stay in the community where they live or work but are struggling to purchase a home at market prices.

• They will be prioritised for first-time buyers, serving members and veterans of the Armed Forces, and key workers, such as nurses, police and teachers.

• The discount will be passed on to future buyers when First Homes are resold so more people can be helped onto the ladder.

Jennie Baker at Lichfields has written an excellent summary First Homes: discounted market housing that actually delivers? (10 February 2020).

There has been widespread concern as to whether this new product (however it may be delivered – and there is going to be a statutory or policy requirement for it to be provided as part of the housing tenure mix on major schemes) will be at the expense of other more needed or more efficient affordable housing products (see for instance the piece by Ruth Davison, chief executive of Islington and Shoreditch Housing Association, First Homes won’t extend homeownership and will decimate supply of homes for those most in need) and of course not “affordable” for many (see for instance Shelter’s comments in the 16 February 2020 Guardian piece Discounted housing scheme out of reach of most first-time buyers) and I personally see as many potential valuation pitfalls as identified with starter homes – and surely there is a greater difficulty “selling” a discount product to purchasers where, unlike with starter homes, that discount will remain in perpetuity.

If you are not now going to MIPIM, why not consider the questions in the consultation paper instead? They neatly encapsulate many of the current uncertainties as to how this is all going to work:

Q1.

a) Do you agree with a minimum discount of 30% (but with local flexibility to set a higher one)?

b) If not, what should the minimum discount be? i. 20%

ii. 40%

iii. Other (please specify)

Q2.

a) Should we set a single, nationally defined price cap rather than centrally dictate local/regional price caps?

b) If yes, what is the appropriate level to set this price cap? i. £600,000

ii. £550,000 iii. £500,000 iv. £450,000

v. Other (please specify)

Q3.

a) If you disagree with a national price cap, should central Government set price caps which vary by region instead?

b) If price caps should be set by the Government, what is the best approach to these regional caps?

i. London and nationwide

ii. London, London surrounding local authorities, and nationwide

iii. Separate caps for each of the regions in England iv. Separate caps for each county or metropolitan area

v. Other (please specify)

Q4.

Do you agree that, within any central price caps, Local Authorities should be able to impose their own caps to reflect their local housing market?

Q5.

Do you agree that Local Authorities are best placed to decide upon the detail of local connection restrictions on First Homes?

Q6.

When should local connection restrictions fall away if a buyer for a First Home cannot be found?

i. Less than 3 months

ii. 3 – 6 months

iii. Longer than 6 months

iv. Left to Local Authority discretion

Q7.

In which circumstances should the first-time buyer prioritisation be waived?

Q8.

a) Should there be a national income cap for purchasers of First Homes?

b) If yes, at what level should the cap be set?

c) Do you agree that Local Authorities should have the ability to consider people’s income and assets when needed to target First Homes?

Q9:

Are there any other eligibility restrictions which should apply to the First Homes scheme?

Q10.

a) Are Local Authorities best placed to oversee that discounts on First Homes are offered in perpetuity?

b) If no, why?

Q11.

How can First Homes and oversight of restrictive covenants be managed as part of Local Authorities’ existing affordable homes administration service?

Q12.

How could costs to Local Authorities be minimised?

Q13.

Do you agree that we should develop a standardised First Home model with local discretion in appropriate areas to support mortgage lending?

Q14.

Do you agree that it is appropriate to include a mortgage protection clause to provide additional assurance to lenders?

Q15.

For how long should people be able to move out of their First Home and let it out (so it is not their main or only residence) without seeking permission from the Local Authority?

i. Never

ii. Up to 6 months

iii. 6- 12 months

iv. Up to 2 years

v. Longer than 2 years vi. Other (please specify)

Q16.

Under what circumstances should households be able to move out of their First Home and let it for a longer time period? (Tick all that apply)

i. Short job posting elsewhere

ii. Deployment elsewhere (Armed Forces)

iii. Relationship breakdown

iv. Redundancy

v. Caring for relative/friend

vi. Long-term travelling

vii. Other (please specify)

Q17.

Do you agree that serving members and recent veterans of the Armed Forces should be able to purchase a First Home in the location of their choice without having to meet local connections criteria?

Q18.

What is the appropriate length of time after leaving the Armed Forces for which veterans should be eligible for this exemption?

i. 1 year

ii. 2 years

iii. 3-5 years

iv. Longer than 5 years

Q19.

Are there any other ways we can support members of the Armed Forces and recent veterans in their ability to benefit from the First Homes scheme?

Q20.

Which mechanism is most appropriate to deliver First Homes?

i. Planning policy through changes to the National Planning Policy Framework and guidance

ii. Primary legislation supported by planning policy changes

Q21.

Which do you think is the most appropriate way to deliver First Homes?

i. As a percentage of section 106 affordable housing through developer contributions

ii. As a percentage of all units delivered on suitable sites

Q22.

What is the appropriate level of ambition for First Home delivery?

i. 40% of section 106

ii. 60% of section 106

iii. 80% of section 106

iv. Other (please specify

Q23.

Do you agree with these proposals to amend the entry-level exception site policy to a more focused and ambitious First Homes exception site policy?

Q24.

a) Do you think there are rare circumstances where Local Authorities should have the flexibility to pursue other forms of affordable housing on entry-level exception sites, because otherwise the site would be unviable?

b) If yes, what would be an appropriate approach for Local Authorities to demonstrate the need for flexibility to allow other forms of affordable housing on a specific entry- level exception site?

Q25.

What more could the Government do to encourage the use of the existing rural exception site policy?

Q26.

What further steps could the Government take to boost First Home delivery?

Q27.

Do you agree that the proposal to exempt First Homes from the Community Infrastructure Levy would increase the delivery of these homes?

Q28.

Do you think the Government should take steps to prevent Community Infrastructure Levy rates being set at a level which would reduce the level of affordable housing delivered through section 106 obligations?

Q29.

a) What equality impacts do you think the First Homes scheme will have on protected groups?

b) What steps can the Government take through other programmes to minimise the impact on protected groups?

Q30.

Do you have any other comments on the First Homes scheme?

Obviously there is a place for discount to market “for sale” products, as part of the affordable housing mix on a major project, and obviously local connection/key worker restrictions need to play an important role, but let’s

⁃ be really careful that the First Homes concept does not squeeze out other affordable housing options for which there may be greater need, or through inefficiency place a greater strain on project viability and consequently the overall monies available for affordable housing

⁃ ensure that the regime is loophole-proof, straight-forward and fair, however mutually inconsistent those aspirations may be (cf CIL)

⁃ (above all else) learn from that Starter Homes failure.

Simon Ricketts, 29 February 2020

Personal views, et cetera

Out Of Time

Cases about missed time limits give many of us sleepless nights, so (rapid eye movement) you might want to look away now.

I’m fairly sure that Laing J’s judgment from last September in R (Bellamile Limited) v Ashford Borough Council (Laing J, 19 September 2019), about a missed deadline for challenging a local plan under section 113 of the Planning and Compulsory Purchase Act 2004, only appeared online last week. I’ll deal with that after belatedly bringing you up to date as to what happened in the Croke litigation saga after my 7 April 2018 blog post Fawlty Powers: When Is A Permission Safe From Judicial Review?

Croke

At the time I wrote that blog post, Mr Croke, who had missed the deadline for making a challenge under section 288 of the Town and Country Planning Act 1990 to an inspector’s decision to allow a planning appeal, had secured permission from the Court of Appeal to appeal from a ruling of the High Court that the deadline should not extended.

The full hearing subsequently took place in October 2018. The facts are set out in the judgment, R (Croke) v Secretary of State (Court of Appeal, 1 February 2019):

“Mr Croke was aware that the six-week period under section 288 expired on 23 March 2016, which was the Wednesday before the Easter Bank Holiday. He was also aware that on each working day – that is, on every day from Monday to Friday – the doors of the Administrative Court Office in the Royal Courts of Justice are closed at 4.30 p.m. He intended to go to the court office himself on 23 March. But he missed his train at Haddenham and Thame Parkway railway station, and knowing he would not be able to get to the court office before it closed, he sent an email to Mr Miller asking him to lodge the application on his behalf. In his letter to the court dated 26 April 2016 Mr Croke said he “returned home and emailed the Application, signed Statement of Facts and Grounds and a copy of the Decision being challenged, to Mr … Miller, who was located just a few minutes from the Court and who agreed to act for [him] in submitting the application on his behalf”. However, his attempt to get the Statement of Facts and Grounds to Mr Miller by email at 3.59 p.m. failed, because he mistyped Mr Miller’s email address. He eventually succeeded in sending the document to Mr Miller at 4.06 p.m. Mr Miller said in his witness statement (in paragraph 1):

“1. … I did … at 16.25 hrs attended [sic] at Royal Courts of Justice … on behalf of the claimant, in an attempt to seal the section 288 on behalf of the claimant; I was refused entry by security. The adult male security guard stated the counters were closed.”

In his letter of 26 April 2016 Mr Croke added this:

“… Despite [Mr Miller’s] pleading with them to allow him to proceed to the counter he was refused entry. …”.

At 5.09 p.m. Mr Miller sent an email to Mr Croke to tell him what had happened.

On 24 March, Maundy Thursday, Mr Croke himself went to the Administrative Court Office, arriving there at about 3.25 p.m. There was a queue. Mr Croke reached the front of the queue at about 5 p.m. and attempted to file his application using a standard Part 8 claim form (form N208). A member of the court staff told him he had used the wrong form and would have to file a Planning Court claim form (form N208PC) instead. He gave Mr Croke form N208PC but refused his request that he be allowed to complete it and file it straight away. He told him to return with the completed form N208PC on the next working day. Mr Croke did so on 29 March 2016, the Tuesday after the Easter Bank Holiday weekend, filing his application on the correct form.”

The two issues were (1) whether the statutory period for challenging the Secretary of State’s decision could be extended by a single day from 23 to 24 March 2016 and (2) if so whether from 24 to 29 March 2016.

Traditionally, time limit provisions, such as the six weeks deadline in section 288 for commencing proceedings, are absolute (although where the last day is a day when the court is closed the deadline is extended to the following day – the so-called Kaur v Russell principle – and the deadline is also in principle capable of being extended where there would otherwise be “an unjustifiable violation of human rights”). The position is less absolute where there is an error in a claim form (or the wrong claim form is used) but the filing is within time – the court has discretion to allow the error to be corrected.

Mr Croke argued that the Kaur v Russell principle should be extended to a claimant a further working day “where a prospective litigant had been inside the court building within normal court working hours but had then been prevented from lodging his or her claim on that day by some action or inaction on the part of staff employed within the building, or by some other unforeseen event within the responsibility of the court over which he or she had no control, that day should be treated as being a “dies non”. This would also apply, for example, to a failure of the court’s IT system that had the same effect. Certainty for all parties involved in the proceedings could be safeguarded by ensuring that a time limit would never be extended by more than a single day, and by requiring a litigant in this situation to put all parties with standing on notice, so that they would not rely on the decision under challenge – as Mr Croke had done in a letter to the council dated 23 March 2016. Mr Croke did not seek to support his argument with a submission that the court would in any event have a discretion to extend the statutory time limit on human rights grounds.”

The court did not consider that there was any justification for extending the principle. “To extend it to accommodate the unfortunate facts of a particular case such as this would be to undermine it.” The court went on to consider whether it should exercise a discretion to extend time, on human rights grounds but saw no basis for this. The six weeks’ deadline was contrasted with extradition proceedings: “The relevant documents here would have not been hard to assemble; they should all have been in Mr Croke’s possession. And the drafting of the grounds would not have been an onerous task, even for an applicant who had not instructed a lawyer to do it. This is in stark contrast to the situation of the appellant in Pomiechowski who was in custody, facing extradition, and had only seven days to make his appeal.”

The question of whether there could be a further extension from 24 to 29 March 2016 was accordingly academic, although the court was sympathetic in the circumstances, there having been errors on the part of the court on terms of the references to prescribed forms in its guidance, and given that the form which Mr Croke used contained the “essential content, including the grounds on which the challenge was made”.

So near and yet so far.

Bellamile

R (Bellamile Limited) v Ashford Borough Council (Laing J, 19 September 2019) relates to a claim, made out of time, seeking to challenge the adoption of the Ashford local plan. The facts are set out in detailed and plain terms at paragraphs 8 to 20 but can be summarised as follows:

The last day for making the challenge was 4 April 2019. A paralegal at the firm acting for the claimant took the claim bundle to the Administrative Court at about 3.35 on that last day. She had a cheque for £154, which is the right fee for judicial review claims, but is the wrong fee for a statutory review claim (which this was). She was turned away on the basis that the fee should have been £528. An email went back to the solicitor dealing with the matter from another paralegal communicating some internally contradictory information, suggesting that a different court form (one for a judicial review claim, which this wasn’t) was required as well as the higher fee.

On 5 April 2019, the day after the time limit, the claim was filed using a judicial review claim form and the judicial review fee was paid (£154). The solicitor subsequently on 13 May 2019 asked the court to treat the claim as if it had been made under the statutory review claim procedure, but without any “application for an extension of time for filing, production of the replacement claim form, or any offer of the correct fee at that stage”. These were provided on 23 May, with a request for an extension of time.

In her judgment, after rehearsing these facts, Laing J first deals with the substantive grounds of challenge to the plan and rejects them – so the question of whether the court had jurisdiction to hear the claim in the first place was potentially only of academic interest. However she goes on to consider whether the claim was out of time, reviewing the previous cases, including Croke.

First, she rejects any suggestion that the merits of a claim are relevant to the exercise of any exceptional jurisdiction to extend time.

Secondly, she finds that there is nothing in the statutory scheme for challenging local plans which gives rise to a discretion to extend on human rights grounds. But in any event she is not satisfied that the claimant has “personally done all that he can to bring and notify the claim timeously”, pointing to various unexplained gaps in the evidence before the court and lack of contemporaneous evidence as to what actually happened on that last filing date.

Out of time.

It’s surprising how often these sorts of issues arise – memories for instance of late, and therefore rejected, challenges to the Thames Tideway Tunnel development consent order (Challenge by council to London super-sewer plans dismissed as “out of time” Local Government Lawyer, 19 January 2015 and also the “Blue Green” case – since when the deadline under the Planning Act 2008 for challenges has been amended, but the basic pitfalls still remain).

Simon Ricketts, 21 February 2020

Personal views, et cetera

Let Me Count The Ways

How unromantic. To my disappointment, that line from Elizabeth Browning’s poem is not followed by a list of the differences between the section 247 and 257 procedures for stopping up highways.

I need to fill that gap.

After all, the process for stopping up highways in order to enable development to be carried out is a vital corner of our planning system that is particularly dysfunctional and lacking in logic. Perhaps because the process largely comes after the decision as to whether the development itself is to be approved, there is too little focus on whether it is working effectively. The last material change to the procedure was the limited, but welcome, amendment made by way of the Growth and Infrastructure Act 2013, which at least allowed it to commence prior to planning permission being granted.

Section 247 (1) of the Town and Country Planning Act 1990 provides that “the Secretary of State may by order authorise the stopping up or diversion of any highway outside Greater London if he is satisfied that it is necessary to do so in order to enable development to be carried out…in accordance with planning permission...”

The procedure covers all types of highway.

Section 257 (1) of the Town and Country Planning Act 1990 provides that “[s]ubject to section 259, a competent authority may by order authorise the stopping up or diversion of any footpath, bridleway or restricted byway if they are satisfied that it is necessary to do so in order to enable development to be carried out…in accordance with planning permission…”

The procedure just covers footpaths, bridleways and restricted byways.

The substantive test in relation to both processes is whether the stopping up is “necessary” in order to enable the development to proceed and whether stopping up is in the public interest. However, they are administered in very different ways (and the section 247 process is different in London).

(Outside London) a section 247 application is made by the developer to the Secretary of State for Transport, and is administered by the Department for Transport’s National Transport Casework Team in Newcastle. The casework team’s guidance indicates that the “Department aims to process Orders where there are no objections within 13 weeks from receipt of all necessary information.”

If there are objections following publicity for the application, the Secretary of State considers in his discretion whether an inquiry is to be held. If an inquiry is to be held, there are no procedural rules which govern the process. The inspector is appointed by the DfT and reports to the Secretary of State for Transport, who makes the final decision.

(In London, section 247 order applications are made by the developer to the relevant borough.

If objections are received and cannot be resolved, the application is referred to the Mayor of London, who either decides that under section 252 (5A) that “in the special circumstances of the case” an inquiry is unnecessary, in which case the borough may confirm the order, or that inquiry is necessary, in which case the borough must cause an inquiry to be held.)

A section 257 application is made by the developer to the local planning authority, following the form set out in the Town and Country Planning (Public Path Orders) Regulations 1993. If there are objections following publicity for the application, section 259 and schedule 14 of the Town and Country Planning Act 1990 require that the application must be referred by the local planning authority to the Secretary of State for Environment, Food and Rural Affairs (although in practice by way of reference to the Planning Inspectorate’s rights of way section).

Unlike with opposed section 247 order applications, there are procedural rules that govern the determination of opposed section 257 order applications, namely the Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007 and there is also procedural guidance published by the Planning Inspectorate.

Unless each objector indicates that he or she doesn’t wish to be heard in front of an inspector, PINS will either arrange a hearing or a public inquiry. There are set timescales for the relevant stages. For a hearing, each party wishing to give evidence must provide a statement of case within 12 weeks of the start date. The hearing should generally take place within 20 weeks of the start date. For an inquiry, the parties must provide their statements of case within 14 weeks of the start date and proofs of evidence must then be provided at least four weeks before the start of the inquiry, which should generally be not later than 26 weeks after the start date.

Not only is it odd that the Planning Inspectorate has no discretion to decide that an opposed application be determined by written representations unless all objectors agree (contrast with section 247 but also with the powerless position of an appellant in relation to a section 78 appeal) but these timescales are way out of kilter with modern, post Rosewell, inquiry timescales, where statements of case are due within five weeks of the start date and the inquiry will generally be within 13 to 16 weeks of the start date.

There is a further sting in the tail: The Planning Inspectorate’s procedural guidance warns:

“Having received an order from a local authority, we aim to issue the notice containing the ‘start date’ to all the parties within 10 weeks.”

Ten weeks! That is often by definition ten additional weeks on the post permission, pre construction, timeline for a project.

So a section 257 order is likely to take around 36 weeks to get to inquiry…

The only good news is that (another difference between section 247 and 257 orders), the inspector can make the final decision in relation to section 257, so there is no further delay caused by waiting for the Secretary of State to consider his or her report.

In conclusion, there are unjustified differences between what should be very similar processes:

⁃ No overall statutory procedural framework (no procedural rules in relation to section 247; out of date procedural rules in relation to section 257, in terms of leisurely time limits and limited scope for determining that a written representations procedure is adequate)

⁃ No single decision-maker (two different Secretaries of State – and in London the Mayor’s role in relation to section 247 – and section 257 decisions are taken by the relevant inspector rather than needing to be referred to the Secretary of State).

⁃ No single body administering the process (DfT National Transport Casework Team vs Planning Inspectorate rights of way section).

In relation to both processes I would go further: As long as there are appropriate safeguards for those affected and with suitable requirements as to consultation and publicity, surely a local planning authority, at the same time as determining any planning application for development, should be able to approve any highways closures that are required in order for that development to be carried out? Otherwise, the issues are artificially divided, in a way that is particularly confusing for objectors, between two processes (planning and stopping up) which still have to run largely one after the other?

How do I love thee (sections 247 and 257)? Let me count the ways (not).

Simon Ricketts, 15 February 2020

Personal views, et cetera

Stansted Airport

This blog post covers yesterday’s High Court ruling in Ross & Sanders (obo Stop Stansted Expansion) v Secretary of State for Transport (Dove J, 7 February 2020), where the issue before the court was whether an application for planning permission for development at Stansted Airport, made to the local planning authority, Uttlesford District Council, by the airport under the Town and Country Planning Act 1990, should instead have been pursued as a Nationally Significant Infrastructure Project (NSIP), to be determined by the Secretary of State for Transport. I also set out the timeline as to the council’s decision-making in relation to the planning application. I have limited what I say to a factual account, given that my firm is acting for the airport (alongside Tom Hill QC and Philippa Jackson from 39 Essex chambers).

The airport is subject to a cap of 35 million passengers per annum (mppa) and a cap of 274,000 air traffic movements (ATMs) per annum. On 22 February 2018 the airport submitted an application for planning permission which involved “building two new taxiway links, being a rapid entry taxiway and a rapid exit taxiway, and nine additional aircraft stands. These new developments are planned to take place in four separate locations within the existing footprint of Stansted Airport. It is uncontentious that these developments would increase the use of Stansted Airport’s single runway and its potential to handle aircraft movements. The planning application also includes a request for the planning cap of 35 million passengers per annum (“mppa”) to be increased to 43 mppa.” It was not proposed to increase the ATMs cap.

The relevant part of section 23 of the Planning Act 2008 provides that airport-related development is to be treated as an NSIP in the case of any “alteration” to an airport the effect of which is “to increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services”.

Section 23(6) provides that “”alteration” in relation to an airport, includes the construction, extension or alteration of:


(a) a runway at the airport,

(b) a building at the airport, or

(c) a radar or radio mast, antenna or other apparatus at the airport.”

The Secretary of State for Transport determined on 28 June 2018 that the 10 mppa threshold would not be exceeded and that he would not exercise his discretionary power under section 35 of the Act to treat the proposals as nationally significant and therefore subject to the 2008 Act decision-taking process and a decision at a national level. The latter determination was taken against the background of the Secretary of State’s publication on 5 June 2018 of the government’s “”Airports National Policy Statement: new runway capacity and infrastructure at airports in south-east of England” (NPS) together with the policy “Beyond the horizon: The future of UK aviation-Making best use of existing runways” (“MBU”).” The MBU policy paper stated that the government would be using its Aviation Strategy to progress its wider policy towards tackling aviation carbon. “”[T]o ensure that our policy is compatible with the UK’s climate change commitments we have used the DfT aviation model to look at the impact of allowing all airports to make best use of their existing runway capacity.” The paper stated:

“Airports that wish to increase either the passenger or air traffic movement caps to allow them to make best use of their existing runways will need to submit applications to the relevant planning authority. We expect that applications to increase existing planning caps by fewer than 10 million passengers per annum (mppa) can be taken forward through local planning authorities under the Town and Country Planning Act 1990. As part of any planning application airports will need to demonstrate how they will mitigate against local environmental issues, taking account of relevant national policies, including any new environmental policies emerging from the Aviation Strategy. This policy statement does not prejudice the decision of those authorities who will be required to give proper consideration to such applications. It instead leaves it up to local, rather than national government, to consider each case on its merits.”

Stop Stansted Expansion challenged the Secretary of State’s 28 June 2018 determination on two grounds: that the airport’s proposals would in fact lead to the 10 mppa cap being exceeded and that the Secretary of State should have used his discretionary power to treat the proposals as an NSIP, the claimant relying, amongst other things on a “suggestion that the application was in truth part of a wider project for expansion of passenger throughput in excess of the NSIP definition, and the ramifications of increased carbon emissions as a result of increased air travel which ought to have led to the conclusion that the development should be treated as an NSIP.”

On the first ground, the court accepted that the proposed works amounted to an “alteration” of an airport (the argument was as to whether the definition was for the purposes of these proposals limited to alterations to a runway but Dove J accepted a wider definition, given the word “includes” in sub-section (6)). However, the court found that the Secretary of State was correct to conclude that the 10 mppa threshold would not be breached:

“I am satisfied that the submissions of the Defendant in this respect are undoubtedly correct. The language of the statute in relation to whether the alteration will “increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services” requires the Defendant to form a judgment in relation to that question. In my view that judgment is to be formed by asking what increase in capacity could realistically be achieved, not what might technically or arithmetically be possible. It requires an analysis based on how the infrastructure is likely to perform, not a hypothetical approach assuming speculative figures in relation to each aspect of the calculation of capacity to show what might be possible rather than what is likely to occur in practice.”

On the second ground, the court noted that from the statutory language of section 35 of the 2008 Act “the Defendant is granted a broad discretion as to whether or not to treat an application for development which does not otherwise meet the definitions for an NSIP as a project which requires development consent on the basis of national significance. Bearing in mind the prescriptive nature of the definitions for various types of NSIP contained in the 2008 Act, the discretion under section 35 is a broad one. Given the nature of the Defendant’s decision, as one which was exercised using a relatively broad discretion, the task of the Claimants to show that the judgment which the Defendant reached was unlawful is daunting.”

The court concluded that similarly ground 2 was not made out. One of the claimant’s submissions was that the MBU carbon emissions modelling was flawed and had “underestimated the effects of growth in aircraft traffic at Stansted airport”. The judge accepted the Secretary of State’s submission that in “reality this aspect of the Defendant’s decision was essentially based on reliance on the MBU policy, and that the substance of the Claimants’ case is in fact a challenge to the legality of that policy in disguise (see paragraphs 95 and 96 above). Certainly, the legality of that policy is now beyond argument. As such I accept that the Defendant was, lawfully, entitled to reach the conclusion which he did, based squarely on the MBU policy that “an increase in the planning cap at [Stansted]…could be adequately mitigated to meet the CCC’s 2050 planning assumption”. That was a conclusion which applied the provisions of the MBU policy (see paragraphs 38 to 40 above) which had considered that proposals of this scale would not imperil the achievement of climate change targets in the light of the modelling work which had informed the policy.”

“The Defendant has provided in the evidence a clear and coherent explanation of the purpose of the modelling (namely for long-term forecasting at a national level) and the basis on which it was constructed so as to inform and justify the policy in MBU relating to whether planning proposals at airports could be adequately mitigated and dealt with at the local level. Once this background to the technical work is understood, then it becomes clear that the criticisms of the Claimants, based upon short-term analysis or examination of individual years is without substance.”

Accordingly, the airport had been correct to pursue the proposals by way of an application for planning permission to the local planning authority, and the Secretary of State had not acted unlawfully in declining to intervene by way of directing that the proposals should proceed as an NSIP.

So was the local planning authority, Uttlesford District Council, now free to determine the application? Well this would have been the case if it had not resolved, against officers’ recommendations, to refuse planning permission on 24 January 2020, the decision notice then having been issued on 29 January 2020.

It has been a twisting route, summarised in the report prepared for Extraordinary Planning Committee meetings that were held on on 17 and 24 January 2020 (the passages in quotation marks below), with additional factual insertions by me:

The claimant made requests on 19 April and 14 June 2018 to the Secretary of State for Housing, Communities and Local Government for the application to be called in. He responded that the Secretary of State for Transport should first determine whether the application should be treated as an NSIP.

The Secretary of State determined on 28 June 2018 that the application was not to be treated as an NSIP. Stop Stansted Expansion issued judicial review proceedings in relation to that decision (those proceedings eventually being dismissed on 7 February 2020 as described above).

“On 14 November 2018, the Planning Committee resolved to grant the application, subject to conditions and subject to completion of an agreement imposing legally binding planning obligations (“section 106 agreement”). The Report and Supplementary Reports identified the planning obligations required. The precise form that the section 106 agreement should take, in accordance with the amended recommendation, was resolved to be delegated to officers. Subsequently, a proposed S106 Agreement was drawn up between the Council, Essex County Council (as relevant highway authority) and Stansted Airport Ltd.”

On 20 March 2019 the Secretary of State for Housing, Communities and Local Government decided not to call in the application. Stop Stansted Expansion issued judicial review proceedings in relation to that decision (Legal bid lodged after Government rejects ‘call in’ of Stansted Airport planning application, Saffron Walden Reporter, 28 March 2019). Those proceedings were subsequently withdrawn.

The purdah period commenced ahead of local government elections on 2 May 2019.

“5. An Extraordinary Meeting of the Council was called for 25 April 2019 to consider the following motion:

“To instruct the Chief Executive and fellow officers not to issue a Planning Decision Notice for planning application UTT/18/0460/FUL until the related Section 106 Legal Agreement between UDC and Stansted Airport Limited and the Planning Conditions have been scrutinised, reviewed and approved by the Council’s Planning Committee after the local elections.

The motion was defeated by 14 votes to 18 votes.

6. A further Extraordinary Meeting was called to consider the following motion:

To instruct the Chief Executive and fellow officers not to issue the Planning Decision Notice for planning application UTT/18/0460/FUL until members have had an opportunity to review and obtain independent legal corroboration that the legal advice provided to officers, including the QC opinion referred to by the Leader of the Council on 9th April 2019, confirms that the proposed Section 106 Agreement with Stansted Airport Limited fully complies with the Resolution approved by the Planning Committee on 14 November 2018 such that officers are lawfully empowered to conclude and seal the Agreement without further reference to the Planning Committee.

The meeting was originally scheduled for 3 June but was deferred until 28 June to allow further time for consideration of legal advice.

7. An informal meeting was held on 30 April with members who had requisitioned the Extraordinary Meeting. It was agreed:

⁃ that officers would not complete the section 106 agreement and issue the

planning consent for the time being;

⁃ That the legal advice previously obtained from Christiaan Zwart, barrister,

would be circulated to all members;

⁃ That a briefing session would be held for all members, with Christiaan Zwart in attendance to answer questions about his advice;

⁃ That, if need be, further advice would be sought at Q.C. level and a further briefing for all councillors would be held. This advice would focus on whether the planning obligation requirements made by the Planning Committee have been incorporated fully and effectively into the s106 agreement, and on the origin and consequences of any “gaps” if any between the Planning Committee Resolution and the resulting S106 Agreement.”

At the local government elections on 2 May 2019, the council came under the control of Residents 4 Uttlesford by a substantial majority.

“8. A briefing meeting for all councillors was called for 14 May. Advice obtained from the Council’s barrister, Christiaan Zwart, was circulated prior to the meeting. He spoke to his advice on 14 May and answered questions.

9. Further advice was then obtained from Stephen Hockman Q.C. working jointly with Christiaan Zwart. Their joint advice was sent to members prior to a second briefing meeting held on 21 May. They answered questions raised by members at that briefing. Issues raised at the briefing meeting by members, and by Stop Stansted Expansion separately, led to additional further advice from Stephen Hockman, Q.C. and Christiaan Zwart. This also was shared with all members of the Council. In all cases information was shared on a legally privileged and confidential basis.

10. At the Extraordinary Meeting of Full Council on 28 June officers were instructed not to issue a Planning Decision Notice for planning application UTT/18/0460/FUL until the Planning Committee had considered:

(i) the adequacy of the proposed Section 106 Agreement between UDC and Stansted Airport Ltd, having regard to the Heads of Terms contained in the resolution approved by the Council’s Planning Committee on 14th November 2018;

(ii) any new material considerations and/or changes in circumstances since 14 November 2018 to which weight may now be given in striking the planning balance or which would reasonably justify attaching a different weight to relevant factors previously considered.

11. Since that meeting further expert legal advice has been obtained from Philip Coppel QC at the request of Members, and officers have been supporting members of the Planning Committee in preparing to consider the two matters set out above through a series of workshop sessions, in part owing to the significant change in membership of the committee. These sessions have taken members through the content of the draft obligations and issues that might be raised as potential new material considerations and regarded as a material change in circumstances since 14 November. They have provided opportunities for councillors and officers to ensure the obligations and issues are fully understood.

12. This report seeks to set out the issues comprehensively, to enable the Committee to comply with the Council resolution and authorise the release of the appropriate decision notice on the planning application.”

Officers recommended the following:

“The Assistant Director – Planning be authorised to issue the decision notice approving the planning application subject to the planning conditions as resolved by the Planning Committee on 14 November 2018 on signing of the amended S106 Agreement appended to this report.”

The Committee sat on 17 and 24 January 2020. Members rejected the officers’ recommendation (ten members voting to reject it, with two abstentions).

The reasons for refusal set out on the decision notice are as follows:

“1 The applicant has failed to demonstrate that the additional flights would not result in an increased detrimental effect from aircraft noise, contrary to Uttlesford Local Plan Policy ENV11 and the NPPF.

2 The application has failed to demonstrate that the additional flights would not result in a detrimental effect on air quality, specifically but not exclusively PM2.5 and ultrafine particulates contrary to Uttlesford Local Plan Policy ENV13 and paragraph 181 of the NPPF.

3 The additional emissions from increased international flights are incompatible with the Committee on Climate Change’s recommendation that emissions from all UK departing flights should be at or below 2005 levels in 2050. This is against the backdrop of the amendment to the Climate Change Act 2008 (2050 Target Amendment) to reduce the net UK carbon account for the year 2050 to net zero from the 1990 baseline. This is therefore contrary to the general accepted perceptions and understandings of the importance of climate change and the time within which it must be addressed. Therefore, it would be inappropriate to approve the application at a time whereby the Government has been unable to resolve its policy on international aviation climate emissions.

4 The application fails to provide the necessary infrastructure to support the application, or the necessary mitigation to address the detrimental impact of the proposal contrary to Uttlesford Local Plan Policies GEN6, GEN1, GEN7, ENV7, ENV11 and ENV13.”

If you are interested in the debate that led to these conclusions, you are out of luck: No webcast or sound recording of the 24 January session is apparently available. There is an apology on the council’s website:

“Unfortunately the broadcasting of today’s meeting failed. Officers worked throughout the day, in liaison with the supplier, to identify and rectify the problem without success.

It has now been established that the back-up local recording of the meeting also failed, meaning an audio recording of the meeting will not be available on the council’s website.

We sincerely apologise to those who had wanted to ‘listen in’ or ‘listen again’ to the meeting.”

From lack of sound to lack of soundness…

The inspectors examining Uttlesford’s local plan concluded in their 10 January 2020 post stage 1 hearings letter as follows:

“Unfortunately, despite the additional evidence that has been submitted during the examination and all that we have now read and heard in the examination, including the suggested main modifications to the plan (ED41) put forward by the Council, we have significant concerns in relation to the soundness of the plan. In particular, we are not persuaded that there is sufficient evidence to demonstrate that the Garden Communities, and thus the overall spatial strategy, have been justified. We therefore cannot conclude that these fundamental aspects of the plan are sound.”

But that, friends, is for another blog post.

Simon Ricketts, 8 February 2020

Personal views, et cetera

Beauty Duty

“The accelerated planning green paper will be published in November 2019.” (MHCLG press release, 1 October 2019).

“Later this year I will publish a White Paper on planning reform, an objective of which will be a simpler and faster system for the benefit of everyone, including homeowners, and small and medium-sized builders” (Robert Jenrick, 13 January 2020, during Commons debate on new homes).

These proposals have certainly lost their acceleration.

Of course the white paper could emerge at any time now, or be part of the now traditional cohort of budget-accompanying announcements on 11 March 2020 (MIPIM week too…). But actually why not take a little longer so as to reflect on the recommendations in the final report of the Building Better Building Beautiful Commission, Living with Beauty: Promoting health, well-being and sustainable growth (30 January 2020)?

For a report on beauty it’s a bit of a beast, at 190 pages.

I blogged here on the appointment of the Building Better Building Beautiful Commission in April 2019 and here on the Commission’s July 2019 report.

As with the interim report it is a wide ranging and discursive read, prickling with all manner of recommendations. It will take some time to assimilate. I almost pulled up at the first fenestration, but spent my commutes yesterday cantering once through the whole document, before then reading the “planning” section in more detail. (I had been to three preparatory discussion sessions held by Commission member Adrian Penfold, who led on this strand. The sessions were in fact extremely interesting with a wide range of perspectives and Adrian obviously has unparalleled experience – the discussion was practical, and action-orientated). I noted down some wider questions and dipped back into the main document in more detail this morning to see if they had been addressed.

The report sets out its overall aims in three exhortations:

• Ask for Beauty

• Refuse Ugliness

• Promote Stewardship

These aims are to be “embedded in the planning system and in the culture of development, in such a way as to incentivise beauty and deter ugliness at every point where the choice arises” by way of eight objectives:

1. Planning: create a predictable level playing field

2. Communities: bring the democracy forward

3. Stewardship: incentivise responsibility to the future

4. Regeneration: end the scandal of left behind place

5. Neighbourhoods: create places not just houses

6. Nature:re-green our towns and cities

7. Education: promote a wider understanding of placemaking

8. Management:value planning,count happiness, procure properly

Each objective leads to a series of recommendations, or “policy propositions”.

For instance these are the ten policy propositions under the “planning” objective, even though many of the policy recommendations under the other objectives would equally call to be delivered by way of changes to the planning system. I don’t see any alternative to setting out the “planning” propositions almost verbatim:

Policy Proposition 1: ask for beauty. The National Planning Policy Framework (NPPF) defines the planning system’s purpose as ‘to contribute to the achievement of sustainable development.’

a. References to the importance of ‘placemaking’ and ‘the creation of beautiful places’ should be placed in chapter 2 as well as in chapter 12 of the NPPF, particularly in paragraphs 7 to 10, at the end of the first sentence of paragraph 17 and in paragraphs 72(c) on new settlement, 73 on buffers and 91 on green infrastructure. Beauty and placemaking should be strategic and cross-cutting themes.

b. References to ‘good design’ in the NPPF should be replaced with ‘good design and beautiful places’ particularly in the section on ‘achieving sustainable development’

c. Beauty and placemaking should be embedded more widely across relevant government strategies. They should also feature in relevant forthcoming government legislation, such as the Environment Bill.

d. We have heard much support for the government’s recent guidance document Design: process and tools, as well as its new National Design Guide (one public sector planner told us it ‘would make things a lot easier’). We warmly endorse both the National Design Guide’s aim – to illustrate ‘how well-designed places

that are beautiful, enduring and successful can be achieved in practice’ – and its contents. We particularly commend its focus on character and identity.

d. Local planning authorities should take up the strong encouragement in paragraph 34 to use the National Design Guide to prepare their own local plan policy, guidance and area-wide or site-specific codes in line with clear evidence of local preferences (see chapter 7).

• Where relevant, a similar aim should be embedded in other planning policy guidance.

• The National Design Guide could be improved further with even more emphasis and more visual explanation on façade quality and materials (the importance of elevational proportions, symmetry, window treatment, storey heights and a façade with both complexity and composure are not mentioned). The guide could illustrate more the importance of block size, type and structure (above all blocks with clear backs and fronts and the way in which houses face the street so that boundaries contain façades). The guide could also focus more on height to width (or enclosure) ratio and street proportions, grain and plot size and effective ways to meet the challenges of parking provision. It should contain even more on street trees and the need for a hierarchy of public squares, streets and green spaces.

e. Paragraph 79e of the NPPF states that planning permission can be given for isolated houses in the countryside where design is ‘truly outstanding or innovative’. This opens a loophole for designs that are not outstanding but that are in some way innovative in these precious sites. The words ‘or innovative’ should be removed. In cases like these, we should always insist on outstanding quality.

Policy proposition 2: expect net gain not just ‘no net harm.’ The planning system operates on the principle of minimising harm. The important paragraph 130 of the NPPF should be reworded to say:

‘Development that is not well designed should be refused. Well-designed development will take the opportunities available for improving the character and quality of an area and the way it functions, be properly served by infrastructure and will contribute towards meeting the needs of the wider community. It will also take into account…’

Policy Proposition 3: say no to ugliness. We have found good examples of schemes being turned down by the Planning Inspectorate on well-argued design grounds after developers appealed against rulings from local authorities.

Such examples should be publicised, celebrated and used to encourage beautiful and popular placemaking and they should encourage neighbourhoods or local media to argue for less unpleasant development. Local planning authorities should feel the full support of government when they reject ugliness. Government and the Planning Inspectorate should have a consistent message about placemaking.

Policy Proposition 4: discover beauty locally. Local authorities, neighbourhood forums and parishes should be strongly encouraged to embed the national requirement for beauty and placemaking from the outset, before any decisions are made about allocating land or making development control decisions. What beauty means and the local ‘spirit of place’ should be discovered and defined empirically

and visually by surveying local views on objective criteria as well as from deliberative engagement with the wider local population. Where appropriate, more detailed design codes should also be included in local plan documents, supplementary planning documents or neighbourhood plans. […]

Policy Proposition 5: masterplan, don’t plan by appeal. Local planning authorities should be encouraged to take a more strategic and less reactive approach to their local plans. Steps to incorporate this would include:

• More clarity on what and where. The ‘plan-making’ section of the NPPF should make it clear in paragraph 16 that plan proposals should provide a clear indication of the scale and design features of development that is proposed, particularly on strategic sites. This could be elaborated in paragraph 23 (which deals with broad locations for development) and in the ‘non-strategic policies’ section in paragraphs 28-30.The soundness test in paragraph 35 should be reworded to read ‘d) consistent with national policy – enabling the delivery of sustainable development, including the creation of beautiful places..’;

• Thinking more broadly about optimisation. We recommend the addition of text in paragraph 123 of the NPPF on the importance of area-based masterplanning in assessing and meeting the need to optimise, whilst also creating beautiful places. The piecemeal site by site approach leads to poor outcomes.

• A process review. We recommend a review of the way in which sites are identified including the ‘call for sites’ process. The review should consider which process changes could reduce the adversarial consequences of the current approach, reduce the resource-pressure on local authorities and better encourage ‘the right growth in the right place.’

• A timescale review. It takes too long to prepare local plans, supplementary planning documents and area action plans. We recommend a detailed review of how the process of creating local plans can be speeded up. Ultimately, local plans should be quicker to write and ‘living documents’ which can be updated more readily when circumstances change.

• Thinking long-term as well as medium-term. We understand and respect why the government has increased the focus on five-year land supply. This has had the very welcome consequence of obliging councils to have local plans in place. However, a longer time frame is necessary when thinking about new settlements, urban extensions and infrastructure investment. We recommend that the phrase ‘within the context of a longer 30-year vision is’ added to paragraph 22 of the NPPF.

[ ]

Policy Proposition 6: use provably popular form-based codes. Local planning authorities should develop more detailed design policy interventions, such as provably popular form-based codes and

pattern books, as a basis for considering planning applications. We believe that form-based codes and non-negotiable infrastructure including green infrastructure (as with the Community Infrastructure Levy) are often appropriate ways to embed quality in a popular and predictable way. [ ]

• The government’s July 2019 guidance on plan-making…should be more specific, requiring a minimum level of detail.

• The local plan should apply the approach taken in the national planning practice guidance on design at the local level, reflecting local circumstances, by setting clear area-wide design criteria, and local planning authorities should consider adopting a co-ordinating code approach in the local plan, particularly for strategic sites. It should also define the requirement for masterplanned area action plans in order to coordinate development across sites in any defined growth area, as well as the application of a co-ordinating code or similar approach to allocated non-strategic sites. These should be prepared as supplementary planning documents or in Neighbourhood Plans prior to the commencement of any planning application process.

• Pages 23 to 28 of the government’s July 2019 guidance on plan- making deal with the evidence required when preparing a local plan. Other than ‘conservation and the historic environment’ there is no section which deals with evidence that might support design policies, such as character assessment. This should be included.

• The Town and Country Planning (Local Planning) (England) Regulations 2012 set out the legal requirements for local planning authorities when preparing local plans and supplementary planning documents. They specify their form and content very generally. There is no specific reference to design. There is scope to specify the minimum design policy level for different types of site.

• The government’s Design: process and tools guidance gives helpful and positive advice to local planning authorities on design policy and its associated tools. It also provides useful advice on assessment frameworks, design review and effective community engagement on design. The ‘What role can non-strategic

policies play?’ section refers specifically to the establishment

of local and/or detailed design principles for an area, including design requirements for site specific allocations. The wording might however be strengthened to move from encouragement (‘can’) to something closer to requirement, (‘should’ or, in some circumstances, ‘must’).

Policy Proposition 7: localise the National Model Design Code. We support the government’s proposal to publish a National Model Design Code, which will function as a template for local authorities to develop, their own codes in accordance with local needs and preferences and to support better urbanism and mixed use…

The model code should include the following elements:

• Design guidance relying on numbers, specifications and images more than words. The model code should define the segments, ratios, façade patterns or cross-sections that make for popular and well-designed places. Local authorities would not be required to accept these definitions in their own codes, but they would form

a template to help local planning authorities understand what they need to define. The national code should provide measured and illustrated exemplars of how all these good principles come together in street segments, public space segments, building and street patterns. These can be stylistically neutral and should take account of parking and servicing.

• Guidance on what goes where. A street hierarchy, and the difference between a good central, urban or suburban street (including levels of mixed use), needs to be set out and illustrated so that it is clear where different elements of guidance are most relevant in different types of place.

• Guidance on scales of development. The National Model Design Code should give examples of what is relevant for various scales of development so that local authorities are helped to be clear about what is (and is not) being scrutinised

• Guidance on turning the The National Model Design Code into a local code. The national code should contain a clear and straightforward suggested process to help turn it into local policy. This will need

to include surveying local preferences empirically and should lay great weight on harmonising with local vernaculars.

[ ]

Policy Proposition 8: require permitted development rights to have standards. There is scope for targeted and carefully drafted use of permitted development rights to free up the delivery of new development, whilst ensuring it achieves better placemaking. But we are not there yet. One way to keep the supply-side advantages of permitted development rights but with some basic standards, would be to move minimum home or room sizes into building regulations. This would prevent some of the worst excesses that have come to light in office to residential conversion. We support this but it is not enough.

The government should evolve a mechanism whereby meaningful local standards of design and placemaking can efficiently apply to permitted development rights. This is not possible at present under the current legal arrangement. It should be. Where it is appropriate, to build housing via permitted development rights or permission in principle should require strict adherence to a very clear (but limited) set of rules on betterment payment and design clearly set in the local plan, supplementary planning document or community code as set out above. If these rules are followed, then approval should be a matter of course. There are precedents for this. For example, permitted development rights for residential extensions requires matching materials.

The Commission recommends that adherence to established design guidance, coupled with a certification process, not unlike the Building Research Establishment Environmental Assessment Method (‘BREEAM’) but directed to the sense of place, is embedded into an overhauled ‘prior approval’ process. It is outside the scope of this report to undertake that drafting, but we consider it to be an important ‘next step’ following these recommendations

Policy Proposition 9: permit a fast track for beauty. If a robust design policy, which is based on community engagement and which has been properly examined, has been established, the detailed planning application stage should be relatively straightforward. The focus should be on compliance with the site-specific design policy, whether contained in the local plan or in a supplementary planning document.

[ ]

Policy Proposition 10: ensure enforcement. Where masterplans or designs are approved, it is those schemes that should be built – not a diluted version down the line. There should be more efficient management of conditions applications, of alterations and a greater probability of enforcement, with stricter sanctions where necessary. Clearer, shorter, more visual local plans should help, but additional ways to achieve this which we recommend include:

• Encouraging specificity on issues such as materials in detailed planning applications.

• Supporting the use of centres of excellence to aid local planning authorities’ enforcement teams.

• Strengthening enforcement penalties for a Breach of Conditions Notice from a maximum of £2,500 to perhaps ten times that. (Breach of Enforcement Notice is already unlimited). The Government should also consider permitting authorities to obtain proceeds from a Process [sic] of Crime Act order in relation to breach of condition notices.

• Tightening the approach and digitising the process of signing off the discharge conditions and regulating non-material and minor alterations. Might it be a requirement that building control sign-off cannot be achieved without adherence to design quality requirements?

• Involving enforcement teams in early discussions about the scheme. This would permit them to understand the relative priorities of members and officers, and the importance of the design features of a scheme. This appears to happen very rarely, if at all, at present.

Many of these recommendations appear to me to be practical and deliverable but obviously questions arise:

Are we all on the same page as to what is “beauty” or “good design”? Can such prescription be imposed in reality without stifling individual design responses? Are we not just feeding bullets to those who will oppose development, using whatever arguments come to hand?

The document says this:

Are there assumptions that arise from political or social outlook, or age? The report roots its stance by describing a “powerful consensus…concerning what people prize in the design of new developments, and about how beauty in human settlement is generally understood”, with passages on:

⁃ townscape

⁃ mixed-use

⁃ building to last

⁃ affordability

⁃ respect for nature

⁃ stewardship.

Much of this must be right, but, faced with specific choices, I am still certain that there is room for debate as to development choices.

The throw-away assumption in the document is that tall buildings are bad:

“...there is much evidence for the view that we will not normally achieve the kind of humane densification that we are looking for by ‘building upwards’ – evidence that has not always been taken into account in recent urban developments, especially in London and Bristol. We need to weave the ground-level fabric more closely, not to stretch it to the skies.”

There is an equivalent dismissive reference to “iconic buildings”, immediately followed by a photograph of the Walkie Talkie:

“...people may not want an ‘iconic’ building in their immediate environment if it does not fit in or harmonise. For many planning protesters, the best outcome is also the outcome that will not be noticed.”

Do we dream of a bland and pleasant land? Where is the room for rebel buildings, for surprises? (I spotted nothing on the desirability or otherwise of preserving, for instance, outstanding examples of brutalist or post modern architecture – little of which would have got past the beauty police). And, whilst the use of traditional materials is eulogised, is this not, in many circumstances, to descend to pastiche and facadism? A logistics warehouse is what it is, or it should be.

Given the difficult value judgments required, are local planning authorities sufficiently resourced to fulfil the central role that the Commission envisages for them?

It is going to be a fascinating debate and, given the warm reception that the Secretary of State has already given to the recommendations (one of which is that he should become the Secretary of State for Place – I would certainly support a change of MHCLG to MoP), I predict that much of the document will find its way into the Government’s agenda. Better this, in my view, than a curious document, almost as long, published earlier in the week by Policy Exchange, Rethinking the Planning System for the 21st Century.

To my mind, we need to move on from the Conservatives’ 2010 mantra that “the planning system is broken”. It either is not, and never has been – or they have had long enough to mend it (and it beggars belief that the Policy Exchange can be advocating “a clean break with the land use planning system introduced in 1947”, unless you read it as part of a wider free market attack on all associated post-war settlements of that time). I tend to favour the former – the planning system is not broken – and the system can indeed accommodate greater attention to be paid to beauty. However, whilst there are always improvements to be made (including some of those recommended by the Commission) there are always two more fundamental influences on outcomes:

⁃stewardship, dealt with well in the the Commission’s report:

“We are persuaded, from a wide pool of evidence, that on-going involvement by the landowner very often leads to development which is better for residents’ well-being, more popular and, ultimately, more valuable. Currently, however, most landowners sell or ‘option’ their land to developers or sign deals with land promoters.. If we are to achieve this stewardship model, there are six issues that must be confronted:

1. We need to encourage management structures that can guide longer-term placemaking projects or stewardship projects, as well as the expertise to staff them;

2. We should support and encourage sources of patient capital investment;

3. We need to address ways in which the tax code unintentionally discourages landowners and developers from putting together stewardship projects;

4. We need to use the spatial planning system to encourage the right stewardship projects and infrastructure in the right place (using improving geospatial data where possible);

5. We need to help public bodies pool their land with private landowners for long-term schemes; and

6. We need to encourage competent long-term stewardship (or trusteeship) of the result.”

⁃financial resources, the relevance of which is acknowledged but not given particular prominence in the report, by which I mean: both a recognition that is wishful thinking to assert that good design does not cost (in terms of compromises on height and massing, on materials and in the use of appropriate professionals at every stage) and a recognition of the additional resources, including additional skillsets, required by local planning authorities.

My condolences to Sir Roger Scruton’s family. With Nicholas Boys Smith and the other Commissioners, he has produced an elegant and thought-provoking, but practical, piece of work. Let’s not dismiss it out of hand, but equally, as with any contemplated changes to the planning system, let’s be sure that the consequences of what is proposed are fully understood before we hand-chisel again into our battered, much extended, poorly maintained, but still in its own way beautiful, planning system.

Simon Ricketts, 1 February 2020

Personal views, et cetera