Month: May 2020

Revisiting Burkett: Should The JR Pre-Action Protocol Be Updated?

I have a simple suggestion this week, sparked by thinking about two judicial review cases, almost 20 years apart, both involving challenges to the adequacy of environmental impact assessment processes in relation to particular schemes. In both of them the indefatigable claimant environmental lawyer Richard Buxton was on the winning side. (If anyone asks why developers nowadays routinely spend significant amounts of time and money having their lawyers review draft application and EIA documents, the answer is mostly Richard).

But my suggestion isn’t about EIA, but is about when a potential claimant should notify a defendant authority that it is considered that grounds for a potential challenge have arisen. At the moment, there is no requirement to do that, by way of a letter written in accordance with the Administrative Court’s pre-action protocol, followed by the issue of proceedings, until it is all too late and permission has been issued. This of course is part of what makes judicial review such a powerful tool for objectors to development proposals – the ability to ambush by tripping the council up on a legal point when it’s too late for them to do anything about it. I intend no specific criticism of Richard (in that it’s not a feature at all of either of the cases mentioned in this post) but often only then does the claimant’s lawyer leap out of the bushes with a multi-page “aha and gotcha” letter.

The law was in a hopeless mess 20 years ago. No-one knew whether a claimant was safe to wait to challenge the relevant planning permission once it had been issued, or whether the challenge should be to any earlier decision in the process, for instance the authority’s resolution to approve the application.

The case which put that question to bed was R (Burkett) v London Borough of Hammersmith and Fulham (House of Lords, 23 May 2002).

It involved St George’s Imperial Wharf development in Fulham, “a mixed use development comprising 1,803 residential units (1303 private flats and 500 affordable dwellings in the form of flats and houses), an hotel, class A1 retail, class A3 restaurant, class D community uses, health and fitness club, class B1 offices, public open space and riverside walk, together with associated car parking, landscaping and access road.”

Richard acted for Mrs Burkett, who lived in a ground floor maisonette next to the site. The council resolved to approve the application on 15 September 1999 but before then he had written to the council alleging that the environmental impact assessment being relied upon was deficient. After the resolution he continued to complain but did not issue judicial review proceedings until 6 April 2000. The planning permission was not issued until 12 May 2000.

Why the delay? Well, those were the days. Legal aid for planning-related judicial review proceedings was still available and, having started his work on a pro bono basis, Richard had to wait until the Legal Services Commission had confirmed that legal aid would be granted to Mrs Burkett, on a nil contribution basis (which also gave protection against any adverse costs orders – in the days before any Aarhus protective costs order regime).

The council submitted that the claim was out of time and Richards J at first instance and then the Court of Appeal agreed. Shades of the Dill case I mentioned last week in that it was only the House of Lords that reached the contrary view.

Lord Slynn:

“In my opinion, for the reasons given by Lord Steyn, where there is a challenge to the grant itself, time runs from the date of the grant and not from the date of the resolution. It seems to me clear that because someone fails to challenge in time a resolution conditionally authorising the grant of planning permission, that failure does not prevent a challenge to the grant itself if brought in time, i e from the date when the planning permission is granted. I realise that this may cause some difficulties in practice, both for local authorities and for developers, but for the grant not to be capable of challenge, because the resolution has not been challenged in time, seems to me wrongly to restrict the right of the citizen to protect his interests. The relevant legislative provisions do not compel such a result nor do principles of administrative law prevent a challenge to the grant even if the grounds relied on are broadly the same as those which if brought in time would have been relied on to challenge the resolution.”

Lord Steyn’s reasoning:

“45. First, the context is a rule of court which by operation of a time limit may deprive a citizen of the right to challenge an undoubted abuse of power. And such a challenge may involve not only individual rights but also community interests, as in environmental cases. This is a contextual matter relevant to the interpretation of the rule of court. It weighs in favour of a clear and straightforward interpretation which will yield a readily ascertainable starting date. Entrusting judges with a broad discretionary task of retrospectively assessing when the complaint could first reasonably have been made (as a prelude to deciding whether the application is time barred) is antithetical to the context of a time limit barring judicial review.

46. Secondly, legal policy favours simplicity and certainty rather than complexity and uncertainty. In the interpretation of legislation this factor is a commonplace consideration. In choosing between competing constructions a court may presume, in the absence of contrary indications, that the legislature intended to legislate for a certain and predictable regime. Much will depend on the context. In procedural legislation, primary or subordinate, it must be a primary factor in the interpretative process, notably where the application of the procedural regime may result in the loss of fundamental rights to challenge an unlawful exercise of power. The citizen must know where he stands. And so must the local authority and the developer. For my part this approach is so firmly anchored in domestic law that it is unnecessary, in this case, to seek to reinforce it by reference to the European principle of legal certainty

50. Thirdly, the preparation of a judicial review application, particularly in a town planning matter, is a burdensome task. There is a duty of full and frank disclosure on the applicant: 053/14/57 to RSC Ord 53, r 14. The applicant must present to the court a detailed statement of his grounds, his evidence, his supporting documents in a paginated and indexed bundle, a list of essential reading with relevant passages sidelined, and his legislative sources in a paginated indexed bundle. This is a heavy burden on individuals and, where legal aid is sought, the Legal Services Commission. The Civil Procedure Rules and Practice Direction – Judicial Review Supplementing Part 54 contain similar provisions: see also the Pre-Action Protocol for Judicial Review. An applicant is at risk of having to pay substantial costs which may, for example, result in the loss of his home. These considerations reinforce the view that it is unreasonable to require an applicant to apply for judicial review when the resolution may never take effect. They further reinforce the view that it is unfair to subject a judicial review applicant to the uncertainty of a retrospective decision by a judge as to the date of the triggering of the time limit under the rules of court.

51. For all these reasons I am satisfied that the words “from the date when the grounds for the application first arose” refer to the date when the planning permission was granted. In the case before the House time did not run therefore from the resolution of 15 September 1999 but only from the grant of planning permission on 12 May 2000. It follows that in my view the decisions of Richards J and the Court of Appeal were not correct.”

This remains the legal position. The current time limit provision in the Civil Procedure Rules is as follows:

“Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose, holding that time runs from the actual grant of planning permission not the resolution to grant“ (CPR 54.5 (5))

Note the reference to “the actual grant of planning permission”. What if the prospective challenge is not to the grant of permission but to another specific procedural step, such as the issue by the Secretary of State of an EIA screening direction, confirming that EIA is not required?

It seems to be accepted that it is not safe to store up challenges to such decisions until permission is issued (although query the precise legal distinction with a committee resolution – might it be that screening is a specific step expressly provided for in legislation?). The question didn’t need to be raised in Richard’s latest success (pending any appeal, at least), in Swire v Secretary of State (Lang J, 22 May 2020), where he acted for an objector to another residential development. Here the dispute was as to whether EIA was required. The council disagreed and issued a negative screening opinion. He applied to the Secretary of State for a screening direction and this was also negative. He then challenged the Secretary of State’s decision to issue that direction.

(Whilst it is nothing to do with the theme of this post, Lang J’s reasons for allowing the challenge are interesting and need to be borne in mind when screening processes are undertaken:

“There was a lack of any expert evidence and risk assessment on the nature of any BSE-related contamination at the Site, and any hazards it might present to human health. The measures which might be required to remediate any such contamination and hazards had not been identified. This was a difficult and novel problem for all parties to address. It was acknowledged by the Council in its screening opinion, acting on the advice of the Environmental Health Practitioner, that specialist advice would be needed to consider the remediation of prions associated with CJD/BSE. Therefore condition 21 merely referred to the requirement that a written method statement for the remediation of land and/or groundwater would have to be agreed by the Council without any party knowing what the remediation for BSE-related infection might comprise. The Defendant adopted the Council’s approach in his screening opinion. But because of the lack of expert evidence, the Defendant was simply not in a position to make an “informed judgment” (per Dyson LJ in Jones, at [39]) as to whether, or to what extent, any proposed remedial measures could or would remediate any BSE-related contamination. It follows that when the Defendant concluded that “he was satisfied that the proposed measures would satisfactorily safeguard and address potential problems of contamination” and that “the proposed measures would safeguard the health of prospective residents of the development”, he was making an assumption that any measures proposed under condition 21 would be successful, without sufficient information to support that assumption. As Pill LJ said in Gillespie, at [41], “the test applied was not the correct one. The error was in the assumption that the investigations and works contemplated in condition VI could be treated, at the time of the screening decision, as having had a successful outcome”. Whilst “not all uncertainties have to be resolved” (per Dyson LJ in Jones at [39]), on the facts this case was not one “where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence” (per Pill LJ at [34]). As the Site was proposed for residential housing, a higher standard of remediation would be required than if it were intended to adapt it for an industrial use, or merely to decontaminate it and return it to woodland (some sites will never be suitable for residential housing, because of industrial contamination).

Mr Honey relied upon the advice given to the Defendant by the Environment Agency, which advised that conditions requiring risk assessment and remediation proposals would be sufficient to mitigate against potential adverse impact on the groundwater. The Environment Agency previously advised the Council that without conditions “the proposed development poses an unacceptable risk to the environment”. I do not consider that the advice from the Environment Agency justified the approach adopted by the Defendant. It confirmed the view of the Environmental Health Practitioner and the Council that further investigation and assessment was needed. It did not provide the Defendant with any evidence that there was no risk of adverse environmental impacts, nor that mitigating measures had as yet been identified which would satisfactorily overcome any such risk. Moreover, it advised that its remit was limited to the protection of the soil and groundwater, and the impact on human health – crucial to this case – was a matter for the Environmental Health Officer. It was not the Environment Agency’s responsibility to advise the Defendant on the legal requirements for undertaking a screening opinion, in the light of Gillespie and the other authorities, and on my reading of the email, it did not purport to do so.

Finally, I have some concerns about the final paragraph of Mr Carpenter’s email to his manager, dated 6 August 2019, whilst reminding myself that this was not part of the formal decision. He said:


“I acknowledge that this case is quite finely balanced. …I am, however, not convinced by what would be achieved by issuing a positive Screening Direction as all the issues have been thoroughly investigated in detailed studies/assessments submitted as part of the planning application process, other than giving the objectors “another bite of the cherry”.”

Plainly he was mistaken in believing that the issue of BSE contamination had been thoroughly investigated in the reports submitted with the planning application, as they were all completed before the developer became aware that BSE-infected carcasses had previously been disposed of at the Site. If this view informed his decision-making, it was a significant error.

Further, on my reading, he appears to suggest that, in a case where the question whether the proposed development was likely to have significant effects on the environment was “finely balanced”, an EIA would be an unnecessary extra step if the issues were “thoroughly investigated” outside the EIA procedure. However, in Champion Lord Carnwath warned against using analogous procedures instead of EIA as to do so “would subvert the purposes of the EIA Directive for that to be conducted outside the procedural framework (including the environment statement and consultation) set up by the Regulations” (at [45]). In this case, the general public does not have the right to be consulted on the developer’s reserved matters applications under conditions 21 and 22, and so the EIA procedure would provide the only opportunity for local people to be consulted on proposed measures relating to BSE contamination at this Site, as they were not set out in the reports submitted with the planning application. So, contrary to Mr Carpenter’s belief, an EIA procedure would not provide objectors with “another bite of the cherry”.

It is not entirely clear what Mr Carpenter meant by the case being quite “finely balanced” as he did not set out the factors which he found to be in favour of an EIA, but it is important to bear in mind that Lord Carnwath also advised in Champion that “[a]pplication of the precautionary principle, which underlies the EIA Directive, implies that cases of material doubt should generally be resolved in favour of EIA.” (at [51]).

In conclusion, I consider that the Defendant made the same error as in the Gillespie case, and thus his decision that EIA was not required was vitiated by a legal error.”)

Back to my main theme: when should a potential claimant notify a defendant authority that it is considered that grounds for a potential challenge have arisen? This wasn’t the issue in Burkett. Everyone was well aware of the potential claim, it was just a question as to when the proceedings should have been issued. What if Richard had kept quiet until the permission had been issued before raising any legal concerns? What would their lordships have made of that?

At present, that sort of behaviour is not the best way to impress a judge but we see it too often – where a prospective claimant identifies proposed grounds of challenge in a pre-action protocol letter only when the planning permission is finally issued and it is too late for the relevant authority and applicant to rectify the alleged defect, even if the grounds arose from a committee resolution many months previously and could have been dealt with by, for instance, a return to committee if only the point had been raised before the permission was issued and it was too late.

The Administrative Court’s pre-action protocol for judicial review, a “code of good practice” which “contains the steps which parties should generally follow before making a claim for judicial review”, says nothing expressly to discourage that approach, in that it is all at a general level that does not engage with the specific peculiarities of planning processes, where on a major scheme there can be significant delays between a resolution to grant and issue of the permission, due to subsequent negotiations in relation to the section 106 agreement and the possible need to refer the application to the Secretary of State and/or the Mayor of London:

“The aims of the protocol are to enable parties to prospective claims to—

(a) understand and properly identify the issues in dispute in the proposed claim and share information and relevant documents;

(b) make informed decisions as to whether and how to proceed;

(c) try to settle the dispute without proceedings or reduce the issues in dispute;

(d) avoid unnecessary expense and keep down the costs of resolving the dispute; and

(e) support the efficient management of proceedings where litigation cannot be avoided.”

“Where the use of the protocol is appropriate, the court will normally expect all parties to have complied with it in good time before proceedings are issued and will take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs”

My simple suggestion is for the pre-action protocol to be amended so as to advise prospective claimants that they should never “store up” prospective grounds of challenge until the planning permission is issued but make them known to the prospective defendant authority and potential interested parties without unreasonable delay and with the objective of giving the parties to address the grounds (if necessary by corrective administrative steps) before the planning permission is issued and before the authority is thereby functus officio ie before it is too late to undo the administrative step of issuing the permission.

And, if I may have a follow up suggestion, would it be so very difficult for there to be a publicly accessible website which identifies all judicial review proceedings which have been filed (even if the underlying papers are not immediately accessible)? Many agreements in relation to land transactions are conditional upon a planning permission being free from legal challenge. Each day matters in the context of the transaction and given the vagaries of document service, particularly in relation to interested parties, and the risks of relying on checking calls made to the court when large amounts of money are at stake for the client, surely there is a better way?

Simon Ricketts, 30 May 2020

Personal views, et cetera

Court Challenges Undo Previous Blog Posts: Westferry, Dill

No-one embarks lightly on litigation but there have been two striking examples this week of what it can achieve. Sometimes it doesn’t even need a hearing (first example) and sometimes it’s on the final roll of the dice (second example).

Westferry Printworks

The Secretary of State’s decision to grant planning permission, against his inspector’s recommendations, for a large development on Docklands – with the decision issued a day before the developer’s CIL liability would have increased by up to £50m – was an eye opener. I covered it, and Tower Hamlets’ reaction, in my 18 January 2020 blog post Westferry Printworks Decision: LPA Reaction Unprintable.

The Council followed through with its threat of a legal challenge to the decision, as did the Mayor of London.

It was frankly surprising to hear this week that the Secretary of State has consented to judgment. I do not think that the consent order itself, which would set out the reasoning agreed by the parties and sealed by the court, is yet in the public domain but there are these two press statements from those involved:

⁃ Westferry Printworks: Secretary of State Accepts “Apparent Bias” in His Decision and Consents to Judgment (Francis Taylor Building press statement, 21 May 2020) (FTB’s Melissa Murphy acted for the Mayor).

⁃ Council forces government to concede illegality in making decision on controversial Westferry Printworks scheme (London Borough of Tower Hamlets press statement, 22 May 2020) (Sasha White QC and Gwion Lewis have been acting for Tower Hamlets).

To quote from the FTB statement:

“The consent order reflects the fact that in pre-action correspondence, the Secretary of State explained that the decision letter was issued on 14 January 2020, rather than the following day, so that it would be issued before Tower Hamlets adopted its new local plan and CIL charging schedule. He accepted that the timing of the decision letter, thereby avoiding a substantial financial liability which would otherwise fall on the developer, would lead the fair minded and informed observer to conclude that there was a real possibility that he was biased in favour of the developer. He accepted that the decision letter was unlawful by reason of apparent bias and should be quashed. The Mayor/GLA’s challenge was therefore academic, but he agreed to pay their costs. “

Those of us not close to what happened can only speculate but why would the Secretary of State cave in rather than face a hearing? Was he worried as to what might be made public in a trawling over of internal correspondence and notes? Echoes of the Mayor’s recent consenting to judgment in the Kensington Forum case (see my 14 March 2020 blog post, London, Friday the 13th).

The appeal will now need to be redetermined and, which is an expensive consequence for the developer of these events, even if the appeal is allowed second time around, the higher CIL figure will be payable.

Dill

I recounted this saga, about a lost pair of urns which were the subject of a listed building enforcement notice, at the time of the Court of Appeal ruling (see my 1 December 2018 blog post Is It A Listed Building? No Statuary Right Of Appeal). I still like the title to the post but the rest of it is now out of date – the effect of the Supreme Court’s ruling in Dill v Secretary of State (Supreme Court, 20 May 2020) was basically to remove the word “no” from my blog post: in defending a listed building enforcement appeal it is now possible to raise the argument that the listed building is not in fact a building (and the court gives some guidance as to what constitutes a “building” for these purposes). See also this excellent summary: Supreme Court rules on the meaning of listed building (39 Essex Chambers, 20 May 2020 – Richard Harwood QC appeared for Mr Dill, instructed by Simon Stanion at Shakespeare Martineau).

Aside from the substantive legal points, which are important, the interesting thing about the case for me is that persistence paid off. The inspector found against him, Singh J at first instance found against him, the Court of Appeal found against him but Mr Dill and his legal team did not give up. The costs of losing would no doubt have been as significant for Mr Dill as the CIL consequences for Tower Hamlets in Westferry.

And whilst the outcome of the case did not remove the spectre for Mr Dill of continued battles – the listed building enforcement notice appeal would now need to redetermined – Lord Carnwath concluded his final judgment before retiring from the Supreme Court with these words:

“I understand that this will be deeply frustrating for Mr Dill. There is as I understand it no suggestion that he acted other than in good faith in disposing of items which he believed to be his own disposable property, and had been so treated by his family for several decades. Since this problem was first drawn to his attention by the local authority in April 2015 he has been attempting to obtain a clear ruling on that issue. On the view I have taken, that opportunity has been wrongly denied to him for five years. Even if his appeal were ultimately to fail, the practicability of restoring the vases to their previous location in the grounds of Idlicote House is uncertain. Accordingly, this court’s formal order for remittal should not prevent the respondents from giving serious consideration to whether in all the circumstances it is fair to Mr Dill or expedient in the public interest to pursue this particular enforcement process any further.”

Concluding thoughts

Well done to the successful claimants and legal teams in both cases. But “snakes and ladders” and “final roll of the dice” analogies are not far off the mark, are they? How to arrive at a system that is more simple and not dependent on expensive, uncertain litigation? Perhaps by reducing the politics (removing the ability for the Secretary of State to recover appeals?), certainly by trying to make sure that legal principles are simpler (if you do the maths, in Dill one inspector and four judges were overruled by five judges, over those narrow “legal exam” questions, following submissions prepared by five barristers and their associated legal teams – the whole process ultimately to be paid for by us, the tax payer, save for those costs which Mr Dill cannot recover).

Simon Ricketts, 23 May 2020

Personal views, et cetera

Stay Alert! A Quick Guide To All Those MHCLG Announcements

On 13 May 2020, MHCLG published:

Guidance: coronavirus planning update

Guidance: Coronavirus compulsory purchase

Guidance: Coronavirus community infrastructure levy

Guidance: construction site working hours Q&A

Guidance: consultation and pre-decision matters

Guidance: plan-making

Guidance: neighbourhood planning

On the same day, the Planning Inspectorate updated its guidance on site visits, hearings, inquiries and events.

On 14 May 2020, the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 were made and came into force that day. The Regulations were accompanied by an Explanatory Memorandum.

The highlights

Validation and determination of applications for planning permission

No changes have been made to the timescales for determining planning applications. Developers are however encouraged to agree extensions of the period for determination. Local authorities have been urged to give priority to validating urgent COVID-19 related applications for planning permission and associated consents.

Publicising applications for planning permission

Temporary regulations (expiring on 31 December 2020) were made and came into force on 14 May to supplement existing publicity arrangements for planning applications, listed building consent applications and environmental statements for EIA development. There is now flexibility to take other reasonable steps to publicise applications and environmental statements if the usual specific requirements cannot be discharged relating to site notices, neighbour notifications, newspaper publicity or availability of hard copy documents. Steps can include the use of social media and electronic communications and they must be “proportionate to the scale and nature of the development”. Guidance has also been issued on this topic.

Planning Conditions

MHCLG has made it clear that planning conditions should not be a barrier to allowing developers and site operators flexibility around construction site working hours to facilitate safe working. Where only short term or modest increases in working hours are required, LPAs are encouraged to use their discretion to not enforce against a breach of working hours conditions. Where longer term measures or other significant changes are required, applications to amend conditions should be made, which LPAs should prioritise and turn around in 10 days. Requests to work up to 9 pm Monday to Saturday should not be refused without very compelling reasons.

Community infrastructure levy

The existing CIL regulations of course allow charging authorities limited flexibility to defer CIL liability. Amendments will be made to the regulations “in due course” to increase flexibility, but that will still depend upon charging authorities deciding to exercise the new discretion available to them. Authorities will be able to defer payments, temporarily disapply late payment interest and provide a discretion to return interest already charged. However, these changes will only apply to small and medium-sized developers with an annual turnover of less than £45 million. It remains to be seen how this limitation will be addressed in the regulations, for example where a special purpose vehicle, potentially offshore, has assumed liability. The new instalment policies for deferred payments will only apply to chargeable development starting after the changes come into effect, but they are anticipated to apply to “phases“ of the development starting after that date. The announcement on 13 May added that “existing flexibilities and the government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate, they will not be charged extra for matters that were outside of their control.”

Section 106 planning obligations

Local planning authorities are encouraged to consider the deferral of section 106 obligations, e.g. financial payments. This will require variations to existing section agreements and undertakings. Local planning authorities are encouraged generally to take a “pragmatic and proportionate” approach to the enforcement of section 106 planning obligations

Virtual Committees

These are already enabled, by way of Regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020. MHCLG is working with the Planning Advisory Service (PAS) to provide further practical advice on the way these meetings are managed.

Planning Appeals

PINS issued a further update on 13 May. Site visits are being commenced and PINS is considering whether there are types of cases that can proceed without a site visit. The first digital appeal hearing took place on 11 May as a pilot and PINS is aiming for 20 further examinations, hearings and inquiries in May and June. It is also exploring hybrid options – a mix of in person and by video public/telephone hearings and is considering “social distance” events.

Local Plans

MHCLG is working on ways to address the local plans process in order to meet aspirations to have all local plans in place by 2023. In particular, the use of virtual hearings and written submissions is being considered.

Neighbourhood Plans

Regulation 12 of the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 prevents any neighbourhood planning referendum from taking place until 6 May 2021. Updated guidance was issued in April allowing neighbourhood plans awaiting referendums to be given significant weight in decision making.

Nationally Significant Infrastructure Projects

The government is working with consenting departments to support the continuation of decision-making to minimise the impact of current restrictions on the consideration of DCO applications and the Planning Inspectorate has updated its guidance.

Compulsory purchase orders

There is now pragmatic advice as to the service of documents. Acquiring authorities are encouraged to allow more time for responses to requests for information about interests in land or submitting objections to CPO. There is also encouragement to authorities to act responsibly regarding business and residential claimants, particularly regarding the timing of vesting orders and payment of compensation, which is particularly relevant when considering evictions. Authorities are reminded of their obligation to make advance payments of compensation in accordance with statutory time limits given cash flow difficulties which claimants may currently face.

Concluding remarks

To my mind, this is all welcome and congratulations are due in particular to the relevant civil servants. Of course, there is more to be resolved, for instance the vexed question of extending time limited planning permissions (see my 4 April 2020 blog post Pause Not Delete: Extending Planning Permissions) as well as the Regulations in relation to CIL, but it is good to see this progress. No wonder MHCLG’s Simon Gallagher was prepared to come on this week’s Have We Got Planning News For You!

Whether by serendipity or, now I think about it, of course, good planning, the RTPI published on 15 May 2020 its research paper Pragmatic and prepared for the Recovery: The planning profession’s rapid response to Covid-19. This last week has been a good start.

Simon Ricketts, 16 May 2020

Personal views, et cetera

(Thank you to Town’s Michael Gallimore and Lida Nguyen for allowing me to draw from a client note prepared earlier this week).

Zen & The Art Of Very Special Circumstances

“The past exists only in our memories, the future only in our plans. The present is our only reality. The tree that you are aware of intellectually, because of that small time lag, is always in the past and therefore is always unreal. Any intellectually conceived object is always in the past and therefore unreal. Reality is always the moment of vision before the intellectualization takes place. There is no other reality.”

Zen and the Art of Motorcycle Maintenance by Robert M Pirsig is a powerful but infuriating book, part fictionalised roadtrip autobiography, part philosophical discourse. Back when I was prepared to read something I didn’t really understand without first having an engagement letter in place, I absolutely loved it.

The book has become an unlikely cultural icon.

As has the green belt, which might have been treated in the book something like this:

What is the green belt and why do people write it as “the Green Belt”? He explained that the green belt is not singular but plural; it was originally described as a girdle rather than a belt, and is better described as a series of urban containment zones. Much of the land within the green belt is not green; much greenfield land (which can include land which is brown but not brownfield) is not within the green belt, and beyond the green belt was originally white land, which was of course never white. To pronounce land to be green belt is so powerful that many people sense that to refer to it as green belt rather than Green Belt is somehow inadequate or disrespectful, notwithstanding usual grammatical rules (a phenomenon which we also experience with references to Inspectors and Inquiries, and, oddly, Counsel).

How do I find the green belt? He sighed. One cannot find it by looking. Its defining features are present by their absence. Instead its existence can only be determined by opening up the relevant development plan, or rather, because the plan is not a plan, the policies map which is not part of the plan (and indeed the green belt around York is defined by an abolished plan which has no map with defined boundaries). Its quality of openness indeed has been determined by the Supreme Court [proper noun] as a quality which can not necessarily be seen.

He sighed again. Green belt was the yin and new towns were to be the yang.

A local planning authority may only make changes to a green belt boundary if there are “exceptional circumstances” and may only grant planning permission for inappropriate development in the green belt if there are “very special circumstances”. The qualifying adjectives are uncalibrated, so the courts have had to make the best of it (my 27 January 2018 blog post Expletive Deleted: Revising Policy was all about these sorts of linguistic problems). We have of course the Calverton ruling on “exceptional circumstances” and Dove J’s more recent ruling in the Guildford local plan case (covered in episode 6 of Heather Sargent’s planning law video podcast series Planning Law Tea Break and in Zack Simons’ #planoraks blog post Guildford’s Local Plan and “exceptional circumstances” (29 March 2020)).

As Dove J made clear in the Guildford case,

“Exceptional circumstances” is a less demanding test than the development control test for permitting inappropriate development in the Green Belt, which requires “very special circumstances.”

He can only derive this from the policy context though, not the words. Is something exceptional less rare or valuable than something which is very special? My policy test calibrator, part-constructed in the garage, would have a dial to 10. Overcoming a normal presumption is anything over 5. Exceptional is, what, about 7, maybe 8, depending on circumstances? Where do you place very special? 8.5 or 9? Of course this is largely nonsense but people trot out the tests, and understandably ask, as if there is an actual answer.

More basically why don’t we have a formulation such as “wholly exceptional circumstances” rather than “very special circumstances”? After all, we do when it comes to heritage (see the contrast between NPPF paras 194(a) and (b)). Well only because the original 1955 ministerial Circular used the term “very special circumstances”:

“Inside a green belt, approval should not be given, except in very special circumstances, for the construction of new buildings or for the change of use of existing buildings for purposes other than agriculture, sport, cemeteries, institutions standing in extensive grounds, or other uses appropriate to a rural area”.

Slightly embellished (particularly in relation to limited infilling and the redevelopment of previously developed land), this language is still recognisable in NPPF para 145.

There is a second level of uncertainty with the use of these tests: not only is the linguistic calibration imprecise, but it is for the decision maker to determine, with adequate reasoning (which may be very basic and not really susceptible to challenge), whether the circumstances are sufficiently “exceptional” or “special”.

Of course the reality is that the fuzziness is deliberate. It allows decision makers, whether the Government or local planning authorities, some necessary wriggle room.

Some recent decisions on “very special circumstances”:

North of Boroughbridge Road, York – inspector’s decision letter 23 October 2019

In finding “very special circumstances” the inspector appears to have relied upon the fact that the site did not fulfil any of the green belt “purposes”, was identified for release for housing in the emerging local plan and that the site would deliver 266 market and affordable homes. The housing land supply in York is well under 5 years (although of course the tilted balance does not apply in relation to green belt proposals).

Since former planning minister Brandon Lewis’s 17 January 2014 ministerial statement we have been wary about relying solely on housing need:

“I also noted the Secretary of State’s policy position that unmet need, […] for conventional housing, is unlikely to outweigh harm to the green belt and other harm to constitute the “very special circumstances” justifying inappropriate development in the green belt.”

The statement has not formally been revoked, so, back to that deliberate fuzziness, here “unlikely” is still the get out word in that it allows for exceptions (where is “unlikely” on the policy test calibrator?), or identifying something other than solely housing need to throw into the scales to assist the “very special circumstances” argument.

Seashell Trust – Stanley Road, Cheadle Hume, Stockport – Secretary of State’s decision letter 22 April 2020

“The Secretary of State considers the need for the redevelopment of the Special Educational Need school carries substantial weight, the housing benefits overall carry very significant weight, and the provision of employment and community benefits each carry moderate weight.

The Secretary of State considers that the above benefits clearly outweigh the harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances exist to justify this development in the Green Belt.”

Oxford Brookes University – Wheatley Campus, College Close, Wheatley, Oxford – Secretary of State’s decision letter 23 April 2020

“The Secretary of State considers that the significant visual benefit to openness over a wide area of the South Oxfordshire Green Belt [by removal of a tower and other large, unsightly structures on the site] and the delivery of up to 500 houses, 173 of which would be affordable, are both considerations that carry very substantial weight.”

West Midlands Rail Freight Interchange DCO – Secretary of State’s decision letter 4 May 2020

“67. The Secretary of State agrees with the Examining Authority that the strategic benefits of the Proposed Development in contributing to an expanded network of SRFIs would assist in achieving and promoting a modal shift of freight from road to rail, thereby playing an important part in the move to a low carbon economy. These benefits are such that they outweigh the adverse impacts identified in relation to the construction and operation of the Proposed Development (ER 9.3.1).

68. The Secretary of State notes and agrees with the Examining Authority that the national and regional need for the proposed development outweighs any harm. He therefore agrees with the Examining Authority that the very special circumstances needed to justify a grant of development consent have been demonstrated (ER 9.2.4).”

Recommended further media:

⁃ My 30 March 2018 blog post Green Belt Developments (although this was before the Supreme Court overturned the Court of Appeal in the Samuel Smith “openness” case)

⁃ Five circumstances ‘exceptional’ enough to justify green belt release in local plans, Stuart Watson, Planning (7 May 2020, £)

⁃ 50 Shades of Planning Podcast – Green Belt. Sacred Cow (22 April 2020)

⁃ (As always) John Grindrod’s book Outskirts. (Now, Mr Pirsig, that’s how you write a part autobiography, part treatise on the history of the green belt, life and everything.)

Simon Ricketts, 9 May 2020

Personal views, et cetera

Great Buddha of Kamakura, Japan.

There Is No E In Inquiry

As the motivational cliche goes, there is no I in team. That’s as maybe. But, where I = Inquiry, nor is there yet any I on Teams (or on Zoom, on Skype, on BlueJeans, or even on Google Hangouts).

The Planning Inspectorate’s 28 April 2020 update Planning Inspectorate casework continues as first pilot digital hearing to take place in May makes interesting reading:

“We are continuing to issue decisions where we can and 1,625 have been issued across all case types since lockdown restrictions started. Not being able to visit sites and hold public events has, however, clearly had an impact on our ability to process cases and the time it is taking to reach a decision.

As explained in our guidance, to limit the spread of the Coronavirus we have postponed site visits up to the middle of May, as well as most hearing and inquiry physical events where these would otherwise have taken place in May. Our case officers have notified parties of event postponement until further notice. We will be issuing updated information on arrangements for postponed events as soon as practicable in line with latest government advice.

We have been able to progress cases where:

• the physical event was concluded prior to lockdown restrictions;

• no physical event is required to make a decision; or

• a physical event is still further in the future and preparatory activity can continue (e.g. via telephone case conferences).

New cases continue to arrive at normal levels and are being registered and processed as far as possible. As at 23 April, there were 9,591 open cases. In the last three weeks we have seen the number of open cases rise by 337.”

(It is encouraging, in passing, to note that appeals are still being made at normal levels – that is our experience too).

The Planning Inspectorate is anxious to reassure that it is moving quickly to catch up:

• “The first fully ‘digital’ hearing is due to take place on 11 May.

• We are preparing for additional cases to be heard by digital hearings/inquiries in May/early June with a view to scaling up digital events further over June/July.

• We are assessing postponed cases to establish whether they can proceed by digital, traditional or a ‘hybrid’ approach, in order to re-arrange these in due course accordingly.

• A trial of ‘virtual site visits’ is underway involving thirteen Inspectors.

• Five local advisory visits have taken place remotely (critical for helping Local Planning Authorities to progress local plans and reduce the length of examinations).”

But is this fast enough? Can more be done? Could we see a leap forward in the way that planning hearings and inquiries are conducted?

After all, the planning inquiry process has been constantly adapting. Planning inquiries were first introduced in the Housing, Town Planning etc Act 1909 to consider objections to town planning schemes. The right to appeal against a planning decision was introduced in the 1932 Act, and the 1947 Act provided that all appeals were to be determined by public inquiry. Weirdly to us now, the procedures followed and the reasoning for decisions was kept secret until changes were made to implement some of the recommendations of the 1957 Franks Committee on Administrative Justice. We still refer to the three Franks Principles, of openness, fairness and impartiality.

This is what was said by the minister of the time in a 1957 Commons debate on the report:

“I must, however, return to a point I made in the opening of my remarks, that we must not complicate the procedures more than we can help. The great majority of objectors and appellants are small people. Quite a few present their own cases without professional assistance and for most people it is essential that the procedure should be simple, intelligible, quick, and cheap, as well as fair.”

Dear reader, of course we did then complicate those procedures, often through changes made with the best of intentions. When I started practice, there was no advance exchange of proofs of evidence. We all read the documents for the first time as they were being read out by the witness. No rebuttal proofs, no laboriously prepared cross-examinations or written closing submissions. Every procedural step that has been introduced, introducing frontloading of appeal preparation and evidence (good), minimising surprises (good), has by a sidewind elongated and complicated the processes (bad). There may now be a much more forensic and detailed examination of the issues, but where have we left those “small people”?

The Planning Bar is obviously at the sharp end of the current slowdown and has been trying to move things along.

⁃ Various Landmark Chambers barristers published a really excellent paper on 21 March 2020, Fairness and public participation in video or telephone hearings for planning appeals during the COVID-19 crisis

⁃ On 1 April 2020 Kings Chambers put out this statement, Kings Chambers team up with Turley and Pegasus Group to record remote public inquiry test.

It is of course hugely frustrating that the massive improvements to the inquiry appeals system brought about by the Rosewell review (see eg my 25 May 2019 blog post Pace Making: Progress At PINS) have been undone by this pandemic. The Rosewell changes, unlike possibly every previous reform of any aspect of the planning system, did not add complications, but modernised and streamlined it in many ways, with telephone case management conferences and the like now the norm. I assume that everyone saw the interview with Bridget Rosewell on last week’s second episode of Have We Got Planning News For You? Her frustration with the Inspectorate’s present apparent slowness to get virtual hearings and inquiries underway was apparent, talking about the need to “move forward as soon as possible” and extolling the “fairer access” that can be achieved in a “virtual environment”.

We should listen to Bridget.

(Indeed, to go off on a tangent, if I were Secretary of State for the day, I would presently quietly shelve “Planning For The Future” and instead ask Bridget, very nicely, to carry out “Rosewell 2”, this time a review, with similar practical focus, in relation to the planning application process, so as to identify opportunities for simplification and reduction of unnecessary paperwork. Step by step there are surely simple opportunities for improvement. Off the top of my head:

– Recommended word limits for supporting documents such as Planning Statements, Design and Access Statements and Environmental Statements (or application fee linked to size of the documentation)

– Removal of need for multiple hard copies of documents

– Modernisation of publicity requirements

– Recommended word limits for officers’ reports to committee

– Standardisation of wording of planning conditions

– Updated model section 106 agreement template (the Law Society’s current so-called template draft agreement dates from 2010!)

– Updated advice as to the types of application which properly should be dealt with by way of officers’ delegated powers

Do it!)

But of course, moving to virtual appeals, even on a temporary basis, is not easy. The interests of all participants, and potential participants, in the appeals process need to be taken into account. Whilst justice delayed is justice denied, justice has to be both done and be seen to be done.

I was struck by an assertion in the Landmark Chambers paper:

“ It is safe to proceed on the basis of a presumption that every participant in a planning appeal will have reasonable access to a means of participating in a remote hearing session unless they provide evidence to the contrary. Virtually every household has a telephone, and the vast majority of people have access to a computer or mobile device on which video conferencing is possible.”

This isn’t still true for a few members of my own family (well they all have a land line – but certainly couldn’t be expected to follow proceedings on a telephone). And indeed whilst the chattering classes are currently going on about Zoom and the rest of it, I know that many are finding it very difficult to access or be at ease on these platforms, surrounded by us lawyers and others who inevitably spend much of every day now speaking with a variety of people on screen and unwittingly developing new social norms and cues.

Any procedural solution does needs to meet the three principles set out in the paper:

– The common law requirements of fairness;

⁃ Article 6(1) ECHR – the right to a fair trial in civil cases;

⁃ Article 6 of the Aarhus Convention (“public participation in decisions on specific activities”).

But decisions as to procedure also need to have regard to “protected characteristics” under the Equality Act 2010, which of course include age and disability. Bridget is right that virtual hearings and inquiries would allow many to engage with the process who currently cannot, which is great as long as there are protections to make sure that some are not excluded.

In my view this is perfectly achievable for the majority of hearings and inquiries. I accept that (1) the inquiry process is very different from the court process and we cannot simply “read across” and (2) even in relation to the court process, there were some words of warning this week from the Court of Appeal in a family law case, Re A (Children) (Court of Appeal, 30 April 2020) – see paragraphs 49 to 56. However, let’s analyse the real position:

The only parties entitled to appear at a hearing are the appellant, the local planning authority and defined statutory parties. Everyone else is at the discretion of the inspector. As long as the inspector is confident that there is no third party, from whom the inspector feels he or she should hear, and who cannot participate adequately by some remote means, why should not virtual hearings proceed, as long as the proceedings are able to be viewed remotely (perhaps also with a transcript of what is said – not difficult at all – where there is any doubt as to whether there may be interested parties without adequate screen access)?

At inquiries, the parties only entitled to appear are the appellant, local planning authority, defined statutory parties and those who have (at their own request) become rule 6 parties. Again, if all of those parties are in agreement (with possible adverse costs award consequences for those who unreasonably refuse) and as long as the same approach can be taken in relation to other parties, why cannot inquiries proceed?

Site visits are less of a problem, whether accompanied or unaccompanied, and whether in fact still always needed, in the light of visual material now available.

Furthermore, as long as there are indeed adequate protections for those who should be heard at the hearing and genuinely cannot reasonably be expected to participate remotely, the change to a virtual process has the benefit of opening up access to so many other people. And imagine the benefits in future of being able to offer a “virtual” evening session at the next inquiry at your local town hall? That surely would be participative democracy.

Which is a long way of saying: I agree with Bridget.

Simon Ricketts, 2 May 2020

Personal views, et cetera