Month: September 2020

The Devolution Dance: The Planning White Paper & Local Government Reorganisation, Neighbourhood Planning

A quick two-step:

1. Given its relevance to the proposals in the planning white paper, what is the Government’s current thinking on local government reorganisation (details of which are to be set out in the devolution and local recovery white paper)?

2. What role is envisaged for neighbourhood planning in the planning white paper?

Local government reorganisation

The planning white paper’s proposal that each district and borough be handed by MHCLG its own local housing need figure to meet in its plan would clearly be more manageable by Government if there were to be fewer districts and boroughs, or if there were to be more joint planning arrangements and Mayor-led combined authorities (“We also propose that it would be possible for authorities to agree an alternative distribution of their requirement in the context of joint planning arrangements. In particular, it may be appropriate for Mayors of combined authorities to oversee the strategic distribution of the requirement in a way that alters the distribution of numbers, and this would be allowed for.”).

Perhaps we are all putting two and two together and making five but there has been some expectation that with Strictly Come Dancing style choreography the devolution and recovery white paper would sashay in any moment now to propose the acceleration of the current process that has been underway in recent years, locally driven through funding constraints, of the ad hoc amalgamation of individual districts and boroughs into new unitary authorities.

Not quite panic on the dance floor but this prospect is causing temperatures to rise in various quarters, e.g. Leader denies Surrey plan to create largest unitary council in England is ‘county power grab’ (Surrey Live, 5 September 2020) (“Waverley Borough Council’s leader has denounced a county council proposal to create the largest unitary authority in England as “a disaster” and “a power grab by Surrey that should be resisted at all costs“.), Lancashire councils face abolition in shake-up (BBC, 29 July 2020) (“One senior Conservative figure in Lancashire argued the three-way division risked a “bloody civil war” within the party locally.”).

Before having to resign from Government on 8 September 2020, Simon Clarke was the MHCLG minister overseeing the white paper. He gave a speech to the Northern Powerhouse Summit on 15 July 2020:

“This September, the government will therefore be publishing the Devolution and Local Recovery White Paper…which will lay a clear path for levelling up every region of our country.

It will provide a roadmap for establishing a series of new mayors within the next ten years – representing the greatest decentralisation of power in our modern history.

In our towns, cities, and rural counties, we will give local places the ability to come forward with new mayoral devolution deals which work for every community, allowing them to become masters of their own destiny.

The White Paper will also redefine the way in which local government serves its communities by establishing the unitarisation of councils as a vital first step for negotiating these mayoral devolution deals in the future.

A move to unitarisation will streamline the delivery of good governance…”

Strong stuff. But then, possibly in the light of Clarke’s departure, the rumours started that the devolution and recovery white paper was to be delayed – the MJ reported that it was due to be published in October, during the week of the Conservative party conference, but has been “put on the back burner, pending a rethink”. See also LGCplus’ piece on 21 September 2020: Ministers accused of ‘starting fires and walking’ as reorganisation momentum collapses.

The rumours as to timing appear to be inaccurate, given MHCLG minister Lord Greenhalgh’s response to a question in the House of Lords on 22 September 2020:

“We intend to publish the devolution and local recovery White Paper the autumn. This will set out our plans for expanding devolution across England to support economic recovery and levelling up, building on the success of our directly elected combined authority mayors.”

But are we to see a watering down of the strong armed “unitarisation as a vital first step towards mayoral devolution deals” messaging of that Clarke speech? In Greenhalgh’s subsequent responses to questions in the same 22 September session, he seems to play down how radical the proposals will be:

“We are not looking at top-down devolution, but focusing on local city and growth deals as the way forward. We are not looking at top-down devolution, but focusing on local city and growth deals as the way forward.”

“… there will be no blanket abolition of districts and that we will take a locally driven approach and ensure that decision-making is taken as close as possible to the people we are serving.”

So possibly not the big bang argued for in a Centre for Cities report, Levelling up local government in England (11 September 2020), which proposed “redrawing the English political map, replacing the 348 existing authorities with 69 unitary or combined ones with greater powers and resources and whose political boundaries match the economic geography in which people live and work.”

“ • Everywhere will reform — all two-tier systems will be reformed to become single tier, while economic powers held in the lower tier of Mayoral Combined Authorities will move up

• Everywhere will have a directly-elected leader — voters will have a clear choice about who will be in charge and they will have clear four-year mandate to act

• Local government boundaries will match local economic boundaries — they will always be blurry, but the aim should be to contain as much of the local economy within the local authority area as possible — that is the area over which most people locally work and live their lives

• Local government will have the capacity to govern effectively while remaining local — economic powers should be held by local governments covering at least 300,000 people and no more than 800,000. This is to strike a balance between covering the local economy and maintaining a connection with local people and businesses. Lower-tier authorities in Greater London and where there is a Mayoral Combined Authority will focus on personal services and may be smaller than 300,000 people”

Could local government seriously cope with such wholesale change at the same time as swallowing a significantly changed planning system? Is it right to require local authority amalgamations as a pre-condition of funding? Does large scale unitarisation leave a local democratic deficit? But, on the other hand, can the system proposed in the planning white paper have a hope of working with so many individual authorities and without even the current discipline, wonky as it is, of the duty to co-operate? And, for London, what will be the role of the Mayor of London?

Of course, as we move towards larger unitary authority areas, thoughts turn to the potentially increased role for neighbourhood planning.

Neighbourhood planning

Someone asked me last week to summarise what the planning white paper meant for neighbourhood planning – would it end up with a greater or a reduced role under the new system? Not an easy question to answer on the basis of what is said in the document but I think we can at least deduce the following:

• neighbourhood planning is to be retained;

• it will in some ways have an enhanced role, including potentially in relation to the preparation of design guides and design codes;

• the Government appears serious about making community engagement more effective, through, for instance, greater use of technology;

• the neighbourhood share of CIL (up to 25%) will be retained under the new combined infrastructure levy;

• but in other ways the communities will have less influence through neighbourhood planning, (1) partly as a consequence of overall housing numbers for local authorities being imposed by Government, (2) partly through development management policies being standardised nationally through the NPPF and (3) partly as a consequence of various types of development approval being removed from the traditional planning application process (for instance growth areas in local plans having the equivalent of outline planning permission and by further expansion of permitted development rights).

There are only two proposals in the white paper that directly focus on the role of neighbourhood planning:

“Proposal 9: Neighbourhood Plans should be retained as an important means of community input, and we will support communities to make better use of digital tools

Since statutory Neighbourhood Plans became part of the system in 2011, over 2,600 communities have started the process of neighbourhood planning to take advantage of the opportunity to prepare a plan for their own areas – and over 1,000 plans have been successfully passed at referendum. They have become an important tool in helping to ‘bring the democracy forward’ in planning, by allowing communities to think proactively about how they would like their areas to develop.

Therefore, we think Neighbourhood Plans should be retained in the reformed planning system, but we will want to consider whether their content should become more focused to reflect our proposals for Local Plans, as well as the opportunities which digital tools and data offer to support their development and improve accessibility for users. By making it easier to develop Neighbourhood Plans we wish to encourage their continued use and indeed to help spread their use further, particularly in towns and cities. We are also interested in whether there is scope to extend and adapt the concept so that very small areas – such as individual streets – can set their own rules for the form of development which they are happy to see.

Digital tools have significant potential to assist the process of Neighbourhood Plan production, including through new digital co-creation platforms and 3D visualisation technologies to explore proposals within the local context. We will develop pilot projects and data standards which help neighbourhood planning groups make the most of this potential.”

“Proposal 11: To make design expectations more visual and predictable, we will expect design guidance and codes to be prepared locally with community involvement, and ensure that codes are more binding on decisions about development.

“As national guidance, we will expect the National Design Guide, National Model Design Code and the revised Manual for Streets to have a direct bearing on the design of new communities. But to ensure that schemes reflect the diverse character of our country, as well as what is provably popular locally, it is important that local guides and codes are prepared wherever possible. These play the vital role of translating the basic characteristics of good places into what works locally, and can already be brought forward in a number of ways: by local planning authorities to supplement and add a visual dimension to their Local Plans; through the work of neighbourhood planning groups; or by applicants in bringing forward proposals for significant new areas of development.”

Many of you know much more about local government and neighbourhood planning matters than me – all comments welcome (even if we’re just dancing in the dark).

Simon Ricketts, 25 September 2020

Personal views, et cetera

Salsa made easy.

GPDO & UCO Amendments: Guidance, Scrutiny

On 18 September 2020 MHCLG amended its guidance to take into account the amendments to the General Permitted Development Order and Use Classes Order that I have covered in recent posts.

So now we have:

⁃ Updated Planning Practice Guidance on when planning permission is needed

⁃ Updated Planning Practice Guidance on town centres and retail

⁃ Updated Planning Practice Guidance on planning application fees to reflect the new permitted development rights to build upwards

⁃ “Key fact sheets” on recent permitted development rights and changes to the Use Classes Order

The new guidance is simply explanatory and I haven’t spotted anything new as to, for instance, the circumstances in which local planning authorities should or should not restrict the operation of the Orders by way of condition.

In the meantime, there remains some Parliamentary focus on the nature of the changes.

The House of Lords Secondary Legislation Scrutiny Committee published a critical report on 10 September 2020:

“These instruments make substantial and wide-ranging changes to planning legislation. According to the Ministry of Housing, Communities and Local Government, the aim is to encourage and speed up the delivery of housing and to support the economic recovery after the pandemic, especially in relation to England’s high streets. The changes are de-regulatory and concerns have been raised that they could lead to the construction of low-quality housing, an increased concentration of fast food restaurants with an impact on the health of local residents, and reduce the ability of local authorities to shape the character of their high streets. These are issues which the House may wish to explore, including in the context of the Government’s plans for further, more fundamental reform of the local planning system which have been published for consultation. While the Committee notes the Government’s intention to support the economic recovery from the pandemic, the plans for further reform do raise the question whether it would have been more appropriate to take forward the significant and far-reaching changes made by these instruments in a future planning bill, enabling Parliament to scrutinise the changes more fully.”

My 5 September 2020 blog post Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR referred to the motions which Labour has tabled in response to the GPDO changes. A Commons debate is now scheduled for 30 September 2020.

Simon Ricketts, 19 September 2020

Personal views, et cetera

Faulks Review Of Administrative Law: Call For Evidence

In my 15 August 2020 blog post, Introducing The Planning Court Case Explorer, I referred to the independent review of administrative law chaired by Lord Faulks, that the Government has commissioned. The review has now published, quietly it must be said, a call for evidence on 7 September 2020, with a deadline for responses of noon on 19 October 2020 (to be emailed to IRAL@justice.gov.uk).

The examination question that the review has been given by the Government is this:

“Does judicial review strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government?”

The review is politically charged. The Conservative party’s 2019 manifesto said this:

“After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.”

Lord Faulks’ standpoint is well-documented.

I suspect their focus will be on the, inevitably politicised, constitutional law litigation that we saw last year. That is an issue which is above this blog’s pay grade, but as a planning lawyer I’m concerned that any reform to administrative law may be to the detriment of the role of the Planning Court in relation to disputes arising under our planning system. And as we begin to move to a new system, the Planning Court will have a crucial role in joining the dots given the inevitable uncertainties that will arise. We need that process to be fast, efficient and, above all, trusted. The oversight of the process by the courts is a vital element in ensuring that our system continues to comply with, for example, the requirements of the Aarhus Convention and of Article 6 of the European Convention on Human Rights (and if anyone suggests that these things don’t matter, just wait till their property is compulsorily acquired without justification, or a dodgy planning permission is issued without any proper remedy in the courts).

I just read again the House of Lords rulings in the Alconbury cases (9 May 2001), which concerned the question as to whether various aspects of the planning system as it was at that time met the requirements of the European Convention on Human Rights, at that point having recently been incorporated into UK law by way of the Human Rights Act 1998. The House of Lords concluded that the system complied with the Convention, but on the basis that an essential element of that system was the supervisory role of the courts in reviewing the lawfulness and rationality of administrative decisions taken in the process.

My nervousness as to where we may eventually end up is accentuated by the current furore over clause 45 of the United Kingdom Internal Market Bill, due to receive its second reading in the House of Commons on 15 September.

Imagine if the next Town and Country Planning Act rendered non-justiciable any regulations made under that Act? How convenient for a Government keen to proceed fast by way of secondary legislation and no doubt unhappy with the inevitable challenges it faces along the way (of which the Rights Community Action judicial review covered in last week’s blog post is a classic example).

Or if procedural failures in relation to decisions led to a rap over the knuckles for the authority rather than an undoing of what was done outside its powers?

Or if judicial review were codified in statute in such a way as to close out challenges to rationality or challenges on grounds such as bias, or legitimate expectation?

Of course, I hope that all of this is unlikely. I have some residual faith that there remains a basic understanding of the importance of the rule of law. I was pleased to see on Friday that the British Property Federation is canvassing its members in reaction to the call for evidence and I hope that other industry bodies do the same. After all, business needs predictability and to know that it is to be treated fairly – this is not just the domain of campaigners and communities!

If you have specific experiences of the role of judicial review in relation to the planning system, please do consider responding to that call for evidence.

As with any examination questions, do read the initial rubric first:

“The Independent Review of Administrative Law (IRAL) panel invites the submission of evidence on how well or effectively judicial review balances the legitimate interest in citizens being able to challenge the lawfulness of executive action with the role of the executive in carrying on the business of government, both locally and centrally. The panel is particularly interested in any notable trends in judicial review over the last thirty to forty years. Specifically, the panel is interested in understanding whether the balance struck is the same now as it was before, and whether it should be struck differently going forward.

The panel would like to hear from people who have direct experience in judicial review cases, including those who provide services to claimants and defendants involved in such cases, from professionals who practice in this area of law; as well as from observers of, and commentators on, the process. The panel are particularly interested in receiving evidence around any observed trends in judicial review, how judicial review works in practice and the impact and effectiveness of judicial rulings in resolving the issues raised by judicial review.”

So, what matters is direct experiences, evidence and data rather than rhetoric.

These are the specific areas which the review will be considering:

“• Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.

• Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government.

• Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful.

• Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners.”

The call for evidence starts with a questionnaire for “Government Departments” (but which I would suggest is equally relevant for local authorities):

“1. In your experience, and making full allowance for the importance of maintaining the rule of law, do any of the following aspects of judicial review seriously impede the proper or effective discharge of central or local governmental functions? If so, could you explain why, providing as much evidence as you can in support?

a. judicial review for mistake of law

b. judicial review for mistake of fact

c. judicial review for some kind of procedural impropriety (such as bias, a

failure to consult, or failure to give someone a hearing)

d. judicial review for disappointing someone’s legitimate expectations

e. judicial review for Wednesbury unreasonableness

f. judicial review on the ground that irrelevant considerations have been taken into account or that relevant considerations have not been taken into account

g. any other ground of judicial review

h. the remedies that are available when an application for judicial review is successful

i. rules on who may make an application for judicial review

j. rules on the time limits within which an application for judicial review must be made

k. the time it takes to mount defences to applications for judicial review

2. In relation to your decision making, does the prospect of being judicially reviewed improve your ability to make decisions? If it does not, does it result in compromises which reduce the effectiveness of decisions? How do the costs (actual or potential) of judicial review impact decisions?

3. Are there any other concerns about the impact of the law on judicial review on the functioning of government (both local and central) that are not covered in your answer to the previous question, and that you would like to bring to the Panel’s attention?”

No doubt the responses to these questions, from those inevitably on the receiving end of judicial review, will point to the delays and uncertainty caused by legal challenges, but of course that is only one side of the story, which is why it is so important that there are responses from a wide section of business and society to the main questions which I set out below:

“1. Are there any comments you would like to make, in response to the questions asked in the above questionnaire for government departments and other public bodies?

2. In light of the IRAL’s terms of reference, are there any improvements to the law on judicial review that you can suggest making that are not covered in your response to question (1)?

Section 2 – Codification and Clarity

3. Is there a case for statutory intervention in the judicial review process? If so, would statute add certainty and clarity to judicial reviews? To what other ends could statute be used?

4. Is it clear what decisions/powers are subject to Judicial Review and which are not? Should certain decision not be subject to judicial review? If so, which?

5. Is the process of i) making a Judicial Review claim, ii) responding to a Judicial Review claim and/or iii) appealing a Judicial Review decision to the Court of Appeal/ Supreme Court clear?

Section 3 – Process and Procedure

6. Do you think the current Judicial Review procedure strikes the right balance between enabling time for a claimant to lodge a claim, and ensuring effective government and good administration without too many delays?

7. Are the rules regarding costs in judicial reviews too lenient on unsuccessful parties or applied too leniently in the Courts?

8. Are the costs of Judicial Review claims proportionate? If not, how would proportionality best be achieved? Should standing be a consideration for the panel? How are unmeritorious claims currently treated? Should they be treated differently?

9. Are remedies granted as a result of a successful judicial review too inflexible? If so, does this inflexibility have additional undesirable consequences? Would alternative remedies be beneficial?

10. What more can be done by the decision maker or the claimant to minimise the need to proceed with judicial review?

11. Do you have any experience of settlement prior to trial? Do you have experience of settlement ‘at the door of court’? If so, how often does this occur? If this happens often, why do you think this is so?

12. Do you think that there should be more of a role for Alternative Dispute Resolution (ADR) in Judicial Review proceedings? If so, what type of ADR would be best to be used?

13. Do you have experience of litigation where issues of standing have arisen? If so, do you think the rules of public interest standing are treated too leniently by the courts?”

We have arranged a joint Town Legal/Landmark Chambers webinar at 5.30 pm on 14 October 2020 to consider these questions in the specific context of the planning system, and the operation of the Planning Court. Event and registration details here: https://us02web.zoom.us/webinar/register/WN_2gsWU81vT7erSoeWqqQ7MQ .

Whether you come from the standpoint of a developer, local authority or community representative, when you strip away the legalism (as we will try to do) all of this really does matter in practice – not just in relation to the small minority of matters that end up in the Planning Court, but in relation to the operation of the system as a whole: fair and predictable procedures are only possible if we know that there are rules, and that remedies are available if they are broken. And when challenges are brought, they need to be resolved with speed, fairness and efficiency.

Simon Ricketts, 12 September 2020

Personal views, et cetera

PS two other webinars for your diary:

5.30 pm 15 September 2020

Permission In Principle – In Practice

(Town Legal with Landmark Chambers)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_5S0GAe6ySN2zfvsdtjd0uQ

5.30 pm 7 October 2020

How will the Combined Infrastructure Levy work, how should it work?

(Town Legal with special guest MHCLG’s director of planning, Simon Gallagher)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_HeND28vJQ6STT-FdLz1u_Q

The Great Hall, Royal Courts of Justice (courtesy Wikipedia)

Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR

Most of the summer blockbusters were paused from release this summer, except for Tenet, which no-one seems to understand. Oh and the statutory instruments making those major amendments to the GPDO (eg building upwards, and resi development to replace existing commercial buildings) and the Use Classes Order (eg the new class E), which hit our screens just before Parliament rose for the summer recess. The Planning For The Future white paper was published (visually spectacular) after Parliament had risen.

This post looks briefly at the role of Parliament in debating these documents, and at the Rights : Community : Action judicial review of the GPDO and Use Classes Order changes.

The amendments to the General Permitted Development Order and Use Classes Order

We’re talking about the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020/755, The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020/756 and The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020/757 all laid before Parliament on 21 July, ahead of the Commons going into recess the following day, and came into effect on 31 August and 1 September. Parliament returned on 1 September.

The statutory instruments (“SIs”) were made under the negative resolution procedure. This means that although the SIs came into effect on when stated, either House can vote to reject them within 40 sitting days, following a motion (“prayer”) laid by a member of the relevant House. If rejected, the relevant statutory instrument is annulled, i.e. no longer of any legal effect.

There has been no Parliamentary debate so far on any of the SIs, although MHCLG minister Lord Greenhalgh did respond to questions in the Lords on 28 July 2020 (ahead of the Lords going into recess the next day).

Labour has laid a motion against the GPDO SIs, but (1) given the Government’s substantial majority there is surely no realistic likelihood of that succeeding on a vote and (2) the narrative in relation to the changes to the GPDO and Use Classes Order seems to have got hopelessly confused with concerns as to the separate proposals in the white paper in the minds of politicians,the press and the public – see for instance Valerie Vaz, shadow leader of the House of Commons, on 3 September 2020:

“We have prayed against the town and country planning permitted development regulations—I think there are three sets of them. The shadow Minister for Housing and Planning, my hon. Friend Mike Amesbury, has written to the Secretary of State. I hope that the Leader of the House will find time for that debate.

During August Parliament was not sitting, but extremely important announcements were being made. I cannot understand why the Government, who say consistently that Parliament is sovereign, do not come to the House to explain changes in policy. Apparently, algorithms will now be used in planning decisions. That takes away the very nature of making planning decisions—whether relevant considerations are taken into account or whether irrelevant considerations are taken into account—and it undermines administrative law. When you make a decision, you must give reasons.

The Town and Country Planning Association says that 90% of planning applications are approved and there are 1 million unbuilt commissions [sic]. It is time for the shires to rise up and oppose these new policies. Will the Leader of the House ask the current Secretary of State for Housing, Communities and Local Government to come to the House to explain why he is using algorithms to stomp on our green and pleasant land?”

Quite aside from the probably theoretical possibility of any or all of the SIs being annulled, there is also the judicial review that has been brought by a new campaign group, Rights : Community : Action. It describes itself as “a coalition of campaigners, lawyers, planners, facilitators, writers and scientists, united by a shared commitment to tackle the Climate Emergency – with people and for people, and the environment.” There are four protagonists: Naomi Luhde-Thompson (currently on sabbatical from Friends of the Earth), Hugh Ellis (Town and Country Planning Association), Laura Gyte (Oxfam) and Alex Goodman (Landmark Chambers).

The group has put its Statement of Facts and Grounds on line. These are the grounds:

“(1) GROUND 1: In respect of each of the three SIs, the Secretary of State unlawfully failed to carry out an environmental assessment pursuant to EU Directive 2001/42/EC (“the SEA Directive”) and the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”).

(2) GROUND 2: In respect of each of the three SIs, the Secretary of State failed to have due regard to the Public Sector Equality Duty (“the PSED”) in s.149 of the Equality Act 2010 (“the EA 2010”).

(3) GROUND 3: In respect of each of the three SIs, the Secretary of State failed to consider the weight of the evidence against these radical reforms, including prior consultation responses and the advice of his own experts. This composite ground is divided as follows:

Ground 3a: The Secretary of State failed to conscientiously consider the responses to the consultation on proposed planning reforms which ran from 29 October 2018 to 14 January 2019

Ground 3b: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State failed to take into account the advice of the government’s own experts: in particular, the findings of the Building Better, Building Beautiful Commission’s “Living with Beauty” Report (“The BBBB Report”), and the findings of his own commissioned expert report “Research into the quality standard of homes delivered through change of use Permitted Development rights” (“The Clifford Report”).

Ground 3c: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State adopted an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed Permitted Development reforms: namely those relating to the deployment of 5G wireless masts.

Ground 3d: In respect of SI 2020/756, the Secretary of State was required to re- consult before introducing Class ZA. There was a legitimate expectation of re- consultation on the proposal for a permitted development right allowing the demolition and rebuild of commercial properties, arising from an express promise to re-consult which was made in the original consultation document.”

Do read the Statement of Facts and Grounds itself for the detail. The Government has served summary grounds of defence but I do not think that they are on line.

The group is seeking an order “declaring that the decision to lay the SIs was unlawful. The Claimant also seeks an order quashing the SIs for unlawfulness.” It was also initially seeking an order “suspending the operation of the SIs until the disposal” of the claim, but it has now withdrawn that request.

On 2 September 2020 Holgate J made an order listing the claim to be heard in court “for 1.5 days in the period between 8th October 2020 to 15th October 2020”. It will be a “rolled up” hearing, i.e. there has been no decision yet as to whether any of the grounds are arguable. The Planning Court has pulled out all the stops to list the case quickly – after all, if any parts of the SIs were now to be quashed just think of the implications and complications! But there must be a good likelihood of the case going to the Court of Appeal or beyond, particularly if any of the grounds gain any traction. There could be uncertainty for some time.

No doubt the claim will touch various raw nerves amongst some – an attack on the Government’s “fast changes” agenda, part reliance on EU-derived environmental legislation, Aarhus Convention costs capping, crowdfunded litigation, “activist lawyers” – it ticks all the boxes! But let’s see what the court makes of it.

The Planning For The Future white paper

The white paper is of course out for consultation, along with the associated shorter term measures document, so it might be said that they don’t amount to significant policy announcements – but that would surely be simplistic: there is a clear direction of travel. With this in mind, being no expert on Parliamentary conventions and procedure, I have two questions:

1. Surely the announcements should first have been in Parliament if I read this House of Commons Library note on Government policy announcements (18 January 2013) correctly?

2. What is the precise status of Planning For The Future? It is expressed on the face of the document to be a “white paper” but would it not usually therefore be expected to have been tabled in Parliament as a numbered command paper and to include the wording: “Presented to Parliament by the Secretary of State for Housing, Communities and Local Government by Command of Her Majesty“? On one level, does it matter? But surely it does?

I also note that some of the shorter term measures (covered in last week’s blog post) could take effect soon after the consultation deadline of 1 October (particularly the introduction of the revised standard method – the “algorithm” if you will) so if there is to be any proper, informed, debate in Parliament I would suggest that there is little time to be lost.

Simon Ricketts, 5 September 2020

Personal views, et cetera