Where is this Planning Policy Paper then? Now presumably to be published by MHCLG next week, isn’t it odd to be making any such announcement when Parliament is no longer sitting, unless, anti-climatically, it is going be a factual update as to progress rather than the “big bang” moment many anticipated?
This post was just going to be a shameless plug for two webinars on the new Class E of the Use Classes Order that we at Town are running next week jointly with Landmark Chambers, at 5pm on 4 and 6 August, on the legal implications and the planning implications respectively. Details are below. We have had a great take-up (over 1,500 acceptances in total for the two sessions) but there is still capacity. What would we do without Zoom??
New Class E: The Legal Implications
5 pm Tuesday 4 August 2020
Practical answers to the questions arising from the amended Use Classes Order.
• How precisely will it work
• What about existing conditions and other restrictions?
• How to assess new applications and scope/risk of restrictive conditions
I was going to leave it at that, but then an interesting case was handed down earlier today: Rectory Homes Limited v Secretary of State (Holgate J, 31 July 2020). It doesn’t concern the recent Use Classes Order questions but rather the longstanding question as to how extra care housing should be categorised in use terms.
Usually the issue is C2 versus C3 (eg see my 16 September 2017 blog post Class Distinctions: Housing For Older People) but here it was a different question: was a proposed ‘Housing with Care’ development (Use Class C2)” development to be categorised as “dwellings” for the purposes of South Oxfordshire District Council’s local plan, which requires schemes for 3 or more dwellings to provide affordable housing? An inspector had dismissed Rectory’s planning appeal. Both parties at the appeal had agreed that the proposal fell within class C2. The difference was over whether the accommodation could be categorised as “dwellings”. “The Claimant’s stance was that because it was agreed that the residential accommodation did not fall within Class C3, none of those units could constitute a dwelling. SODC’s case was that the “housing with care” units were dwellings in both “form and function”, and as such could fall within the C2 Use Class provided that they are not in C3 use.”
The inspector found that the accommodation fell within C2 but that it comprised “dwellings” for the purposes of the policy. His reasoning was rather odd: “the Inspector appears to have taken the view that if each of the dwellings proposed would be ancillary to the C2 use of the site, the exclusion of dwellings falling within the C3 Use Class, upon which the Claimant had relied, could not apply.”
The inspector went on to find as follows:
“Taken as a whole the proposal would be contrary to the development plan in that it would materially exceed the maximum number of dwellings set out in the site specific policy in the [Thame Neighbourhood Plan]. It would cause harm to the setting of The Elms and to the [Thame Conservation Area], which are both designated heritage assets, contrary to the relevant policies in the SOLP, the SOCS and TNP; special attention and great weight should be given to these harms. It would also fail to provide affordable housing, in particular on-site, to deliver a mixed community, in line with the policies of the SOCS, the TNP and the Framework. While there would be compliance with other policies, I consider that these are the most important policies for the determination of this appeal. These policies are all up-to-date.
As explored above, the proposal would result in less than substantial harm to, and thus the significance of, both the setting of The Elms and to the TCA. These should be balanced in line with paragraph 196 of the Framework with the public benefits of the proposed development. In this regard I consider that the public benefits identified above would balance those heritage harms. This is in line with Policy HA4 of the TNP which allows for a balance to be undertaken as to the overall planning conclusion, but this would not mean that there was compliance with that policy overall due to the number of dwellings being proposed.
By failing to provide affordable housing on the appeal site, the proposal would result in very substantial harm. The need for owner occupied elderly persons extra care accommodation in the area does not outweigh this harm.”
Rectory challenged the decision. I only refer below to those issues arising which touch on use classes.
Holgate J makes a preliminary point, which is topical, given much discussion at the moment as to the advantages or disadvantages of defining proposals by way of the new class E, once the Use Classes Order changes take effect from 1 September:
“I deal first with a preliminary point. The Inspector suggested in his Pre-Inquiry Note that because the purpose of the Use Classes Order is to remove certain changes of use from development control, a planning permission ought not to be expressed in terms of a Use Class, particularly as that consent would be issued before the development is constructed and begins to be used. The principal parties at the inquiry did not see this as posing any legal difficulty and ultimately it did not appear in the Inspector’s reasoning in his decision letter. I agree with them on this point. For example, the provisions on certification of lawful development require that the lawfulness of an existing use (which may be based upon a planning permission), or the lawfulness of a proposed use, should be described by reference to any Use Class applicable (ss.191(5)(d) and 192(3)(b)). I therefore cannot see why the grant of a planning permission may not also be defined in terms of a Use Class.”
So, there is no reason not to define what is granted planning permission by way of a use class rather by way of a specific proposed use. (Obviously what is applied for will need to be justified by reference to the relevant development plan and other considerations. Absent clear government guidance, that is going to be a big issue in relation to the new Class E – how much weight should pre Class E development plan policies still have?).
The judge goes on to conclude that extra care accommodation can comprise dwellings:
“It has become well-established that the terms “dwelling” or “dwelling house” in planning legislation refer to a unit of residential accommodation which provides the facilities needed for day-to-day private domestic existence (Gravesham p. 146; Moore v Secretary of State for the Environment, Transport and the Regions (1998) 77 P & CR 114, 119; R (Innovia Cellophane Limited) v Infrastructure Planning Commission [2012] PTSR 1132 at [27]-[28]). This concept is consistent with the Core Strategy’s interchangeable use of the words “dwelling”, “house”, “home” and “unit”. It can include an extra care dwelling, in the sense of a private home with the facilities needed for “independent living” but where care is provided to someone in need of care.”
Just because the proposed development is not within C3 does not mean that it cannot comprise dwellings for the purposes of policy. The inspector’s categorisation of the units of accommodation as ancillary to the main C2 use were seen by the judge as “wholly immaterial” to his decision.
Perhaps a reminder that, once we have all finished chewing over the uncertainties of new class E, the C classes are perhaps also in need of some updating…
(Zack: I reckon we could get a couple more webinars out of that exercise in due course…!)
More E words: the English planning and property community was immediately, depending who you spoke to, exercised/excited by the changes to the Use Classes Order and General Permitted Development Order this week. Surprisingly so perhaps, given how heavily the changes had previously been trailed (although, it must be said, in terms of the Use Classes Order changes, not consulted upon). Inevitably and by contrast, the wider public appears to be oblivious as to what lies ahead, despite the potentially far-reaching implications of the creation of the new “commercial, business and service“ class E within the Use Classes Order in particular.
There are many good summaries already of the changes. My Town colleagues Nikita Sellers, George Morton Jack and Meeta Kaur have prepared a detailed summary.
I am not going to consider the rights and wrongs of the changes in any detail. I have referred previously to my disappointment that the Government has not required for example its nationally described minimum space standards to be applied in relation to the creation of new dwellings by way of permitted development rights (despite having published, with curious timing, a report Research into the quality standard of homes delivered through change of use permitted development rights, on the same day as publishing legislation which does not take into account the recommendations of that work, with no explanation for the discrepancy). The Use Classes Order changes do provide some overdue flexibility given the structural changes underway in our town centres in the light of changed shopping patterns (not just Covid-related but of course now accentuated), but they are extremely wide ranging and I query whether the various permutations of potential consequences have been adequately considered. But that is all for another day.
Instead, I wanted to pull us back to some planning law fundamentals – in what circumstances may owners find that they cannot rely on the expanded use rights after all?
First, in order to move within a use class, the initial use first has to have been instituted, so if for instance you have an as yet unimplemented planning permission for a shop, or if the development has been built but not yet been occupied, the development will first need to have been used as a shop before there can be a change to another use within the new class E (e.g. offices).
Secondly, there must not be a condition on the planning permission authorising the current use that has the effect of preventing use changes that would otherwise have been enabled by way of the Use Classes Order and/or General Permitted Development Order. This is familiar but not straightforward territory. There is much case law as to whether particular phrases in conditions actually achieved what the local planning authority intended and indeed whether the benefit of the condition was lost through the grant of subsequent permissions which did not expressly impose it.
The general answer is that it depends on a careful analysis of the existing planning permission (and of course any provisions within any section 106 agreement).
“The retail unit hereby permitted shall be used for the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders’ merchants goods and for no other purpose (including any other purpose in Class I of the Schedule to the Town and Country Planning (Use Classes) Order 1972 or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order).”
It was then amended to read:
“The retail use hereby permitted shall be used for the retailing of DIY home and garden improvements and car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose (including the retail sale of food and drink or any other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order).”
The council then approved by way of section 73 a further change so that it was to read:
“The retail unit hereby permitted shall be used for the sale and display of non-food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking and re-enacting that Order with or without modification), for no other goods.”
However, the council neglected to include that wording in a condition. It was simply part of the description of the development.
The Supreme Court held that the permission was to be interpreted as constraining the use of the retail unit so that it was for the sale of non-food goods only. But for our purposes, this is an example that the courts (1) routinely treat conditions as able validly to restrict the operation of the Use Classes Order and/or General Permitted Development Order and (2) are perhaps currently more benevolent towards the local planning authority’s position than has previously been the case where there has been procedural imprecision, as long as what was intended was clear.
“This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained“.
The court held that “express planning consent” did not include prior approval pursuant to the “office to residential” permitted development right. The restriction applied.
So care is needed! Where there are restrictive conditions which would restrict the flexibility that the new class E would otherwise give, of course consideration can be given to applying to remove those conditions by way of section 73 application.
Thirdly, when applications for planning permission are now to be determined, careful consideration will need to be given to the proposed description of development and no doubt there will be issues arising as to whether decision makers are justified in imposing conditions which restrict the operation of the new Use Classes Order and General Permitted Development Order flexibilities. It will be the B1(a), (b) and (c) arguments all over again, but writ large.
I hope that we will have updated Planning Practice Guidance. In the meantime, the current Planning Practice Guidance has passages such as these:
“It is important to ensure that conditions are tailored to tackle specific problems, rather than standardised or used to impose broad unnecessary controls.”
1. necessary;
2. relevant to planning;
3. relevant to the development to be permitted;
4. enforceable;
5. precise; and
6. reasonable in all other respects.”
“Is it appropriate to use conditions to restrict the future use of permitted development rights or changes of use?
Conditions restricting the future use of permitted development rights or changes of use may not pass the test of reasonableness or necessity. The scope of such conditions needs to be precisely defined, by reference to the relevant provisions in the Town and Country Planning (General Permitted Development) (England) Order 2015, so that it is clear exactly which rights have been limited or withdrawn.Area-wide or blanket removal of freedoms to carry out small scale domestic and non-domestic alterations that would otherwise not require an application for planning permission are unlikely to meet the tests of reasonableness and necessity. The local planning authority also has powers under article 4 of the Town and Country Planning (General Permitted Development) (England) Order 2015 to enable them to withdraw permitted development rights across a defined area, where justified.
Will that guidance be sufficient to avoid disputes? I doubt it.
Am I entitled to apply for planning permission simply for Class E use? Given that Parliament now deems changes within class E not be material, why not? How will such applications be determined as against development plan policies which are likely to be at odds with such an approach, and how will CIL be calculated, given that many CIL charging schedules distinguish as between, for instance, retail and office use?
Fourthly, planning permission will still be required for operational works that materially affect the external appearance of the building. To what extent will local planning authorities seek to exert control by that route, as we have sometimes seen with office to residential conversions? How to guard against plainly substandard conversions of shops to offices and of, for instance, units on out of town business parks to shops?
Fifthly, there is going to be much focus on how precisely the General Permitted Development Order operates in relation to the new class. For an initial period, until 31 July 2021, the GPDO will operate as against how the relevant use was categorised before the changes to the Use Classes Order became effective. Are we to expect further changes to the GPDO in the coming period?
Sixthly, quite apart from these planning law constraints, private law constraints imposed by way of, for instance, restrictive covenants and user covenants in leases will still apply.
But, there’s no way round it, class E has huge implications for much of the world around us, from central business district to market town, to out of town retail or business park. It also brings with it, and this is its very point, huge opportunities to allow for adaptation and for entrepreneurship. How is all this going to work out in practice? Will people start using the new freedoms and then find that inevitably in due course the rules tighten again, by which time the horse has bolted, or, that for land owners, they may have unwittingly lost the right to the use which was most valuable in investment terms? E is also for experiment.
Simon Ricketts, 24 July 2020 (expanded version 25 July 2020)
The Government is about to announce two major proposals for significant deregulation of the planning system by way of amendment of the Use Classes Order and the General Permitted Development Order. According to Robert Jenrick’s 30 June 2020 letter to MPs:
“I will create a new broad category of ‘commercial, business and service’ uses which will allow commercial, retail and leisure uses greater freedom to adapt to changing circumstances.”
(“In undertaking this reform, I recognise that there are certain uses which give rise to important local considerations; for example to ensure local pubs and theatres are protected, or to prevent the proliferation of hot food takeaways or betting shops”).
There will also be “… a new permitted development right to encourage regeneration and put empty buildings back to good use. This will serve to bring forward additional much needed homes and boost investment opportunities for the construction industry.
The right will allow free-standing vacant and redundant commercial and residential buildings to be demolished – and rebuilt as residential use within the footprint of the existing building. I recognise that development in certain locations requires individual consideration and therefore, I propose that the right does not apply, for example, in national parks and conservation areas or to listed buildings.”
The reforms, due to come into law in September, follow on from those contained in the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020, which were laid before Parliament on 24 June 2020 and which were summarised in my 26 June 2020 blog post New Planning Legislation! A Detailed Guide. The most radical of these measures was the creation of a new “building upwards” permitted development right: “works for the construction of up to two additional storeys of new dwellinghouses immediately above the existing topmost residential storey on a building which is a purpose-built, detached block of flats”.
My Town colleagues Lida Nguyen, Rebecca Craig, Victoria McKeegan and Meeta Kaur have created a flow chart to describe how the new “building upwards” right will work, when it comes into law on 1 August 2020. It is not straight-forward:
The new rights will of course be equally complex to navigate. The complexity of dealing with any use classes or permitted development rights question is accentuated for those without an expensive subscription to a legal updating service: the Government still does not provide access to up to date consolidated versions of secondary legislation and so it is extremely difficult for non-professionals to navigate the inevitable regulatory trip hazards.
Many of us of course continue to query whether the new right should have been further constrained – that the flow diagram is too simple (leading one to wonder perhaps whether the traditional planning application route isn’t quite so unwieldy after all…). Clive Betts, chair of the Housing, Communities and Local Government Committee, set out a number of specific questions in his 8 July 2020 letter to MHCLG Minister of State Christopher Pincher:
⁃ “What will the Government do to ensure that basic standards, including minimum room sizes and guarantees of amenity space, will apply to new PDRs.”
⁃ “What will the Government do to ensure that local authorities do not, as a consequence of new PDRs, miss out on the funding they need to provide vital infrastructure and affordable housing for their communities?”
⁃ (With reference to the proposed Building Safety Bill, which will implement a new fire safety regime) “Could you confirm…that where a building is extended in height above 18 metres (or six storeys) through the new PDR, that it will then fall under the scope of the new building safety regime?”
⁃ “What rights will local authorities have to object to a scheme which damages the local streetscape?”
⁃ “How will the rights of existing business, e.g. pubs and restaurants, be protected to ensure that they can continue to operate in an area changing its mix of development?”
⁃ “What research has the Government undertaken into the potential impact on leaseholders of these changes and what protections will the Government put in place to ensure that they are not financially disadvantaged as a consequence?”
(We now have further detail in relation to the proposed Building Safety Bill, referred to in that third bullet point. MHCLG has published its 18 July 2020 press statement Landmark building safety law to keep residents safe and accompanying guide, although until we see the draft Bill on 20 July we will not have the answer to that question as to whether the duties in the Bill will apply to development carried out by way of permitted development rights, which personally I would guess that surely they would but we shall see…).
Aside from those substantive concerns, which will equally apply to the proposed “demolish commercial to replace with residential” permitted development right, there are inevitably a number of uncertainties as to various aspects of the “building upwards” right. For instance:
⁃ Does the existing building have to be entirely in residential use? What if, say, there are any commercial units on the ground floor?
⁃ How is the adequacy of natural daylight to be determined? This cannot be allowed to turn into inconclusive debates as to “BRE compliance” given the flexibility urged in the BRE guidance itself as to application of its tests.
⁃ What is the scope for the local planning authority to refuse prior approval on the basis of effect on amenity, overlooking, privacy and loss of light? If any exercise of the right would lead to one or more of these problems, due to the inherent circumstances of the building, can the local planning authority refuse permission even if that thwarts the owner’s ability to rely on the right?
⁃ What amounts to “completion” and what are the practical implications of the development having been substantially carried out but not completed by the three years’ deadline?
Any project to construct additional storeys onto an existing block of flats also of course brings all manner of private law complexities: a minefield of landlord and tenant, building management, private nuisance and rights to light issues for example. It is often not the need for planning permission that scuppers the proposal.
Don’t just listen to me: it’s worth reading the Government’s own Regulatory Policy Committee’s lukewarm endorsement of the impact assessment accompanying the 24 June changes. The assessment had estimated that the “building upwards” right could lead to approximately 81,000 homes being built above existing structures. I would be astonished.
Whilst we wait for this planning policy paper, the speculation rises. Old ideas get dusted down again, pitches are rolled.
The post-war new towns programme saw 27 UK new towns built by state-sponsored development corporations under the New Towns Act 1946 and later amending legislation. One of the conundrums that successive governments have grappled with over the last 40 years or so is how to create the conditions in which the private sector, rather than the state, can bring forward and deliver residential-led proposals at scale, whether in the form of new towns or urban extensions.
The jargon doesn’t help. We don’t seem to want to call it what it is, so an urban extension becomes a “sustainable urban extension”, which becomes a SUE. A new town presumably is a bit much for our sensitive modern ears, so to big up the environmental credentials, and to tip a hat to Ebenezer Howard, it becomes a new garden village, garden town or garden community (or, when the “eco-“ prefix became fashionable a decade or so ago, eco-town). The precise terminology is usually driven by the Government funding stream of the day, eg
⁃ The Eco-towns prospectus, July 2007 (“Eco-towns are a major opportunity for local authorities, house builders, developers and registered social landlords to come together to build small new towns. Eco-towns should be well designed, attractive places to live, with good services and facilities, and which connect well with the larger towns or cities close by. Uniquely, they offer an opportunity to design a whole town – business and services as well as homes – to achieve zero-carbon development, and to use this experience to help guide other developments across the country. The essential requirements we are looking for are: (i) eco-towns must be new settlements, separate and distinct from existing towns but well linked to them. They need to be additional to existing plans, with a minimum target of 5,000 – 10,000 homes;” (ii) the development as a whole should reach zero carbon standards, and each town should be an exemplar in at least one area of environmental sustainability; (iii) eco-town proposals should provide for a good range of facilities within the town – a secondary school, a medium scale retail centre, good quality business space and leisure facilities; (iv) affordable housing should make up between 30 and 50 per cent of the total through a wide range and distribution of tenures in mixed communities, with a particular emphasis on larger family homes; (v) a management body which will help develop the town, provide support for people moving to the new community, for businesses and to co-ordinate delivery of services and manage facilities.”)
⁃ The Locally-Led Garden Villages, Towns and Cities prospectus, March 2016 (“Expressions of interest are sought by 31 July 2016 for “garden village” projects defined by the Government as developments of between 1,500 and 10,000 homes that meet specified criteria. Up to 12 proposals are to be supported. The list of information required has now been published. This follows DCLG’s March 2016 prospectus that covered both garden villages and garden towns/cities (10,000 homes plus). Key criteria include:
⁃ the Garden Communities prospectus, August 2018 (“The Government “will prioritise proposals for new Garden Towns (more than 10,000 homes), but will consider proposals for Garden Villages (1,500-10,000 homes) which are particularly strong in other aspects. For instance, demonstrating exceptional quality or innovations, development on predominantly brownfield sites, being in an area of particularly high housing demand, or ability to expand substantially further in the future.”) (see my 24 August 2018 blog post Let A Million New Homes Bloom).
“New settlement” is probably the least value-laden term and that’s what I’ll use for the rest of this post.
One of the current hot topics, ahead of this planning policy paper which may go in an entirely different direction, has been whether the Nationally Significant Infrastructure Projects regime under the Planning Act 2008 should be extended so as include new settlements and other major residential-led projects.
It was extended again in April 2017, by way of section 160 of the Housing and Planning Act 2016, to allow NSIPs to include “related housing development” that has some special or functional connection with the particular infrastructure project, capped at around 500 homes (with no take up yet as far as I am aware).
At the time that the decision was made to allow business and commercial projects to use the NSIPs system, the idea of also allowing major residential development projects to be included was considered, but rejected:
“Planning for housing and the determination of planning applications for housing development is a primary role of local councils and the Government does not consider it appropriate to remove this responsibility from them. The Government has taken a number of steps to make clear the role of local councils in planning for housing including through the National Planning Policy Framework.
The Planning Act 2008 already bars dwellings from being consented as “associated development” alongside a nationally significant infrastructure project. The Growth and Infrastructure Act 2013 additionally sets out that the Government may not prescribe housing as a form of business and commercial development. [This of course preceded the 2017 change!]
Given the strong support for the exclusion of housing from the nationally significant infrastructure planning regime and the Government proposes to take no further action in this respect”.
The Government hangs on to the mantra that new settlements must be “locally-led” but isn’t this just an attempt to avoid being seen as directly responsible either for the consequences of its own target-setting or for properly underwriting on a longterm basis the costs of delivery? After all, why shouldn’t business and commercial projects be “locally led”, and how does call-in fit in?
Since 2018 we have had the wording in what is now paragraph 72 of the NPPF: “The supply of large numbers of new homes can often be best achieved through planning for larger scale development, such as new settlements or significant extensions to existing villages and towns, provided they are well located and designed, and supported by the necessary infrastructure and facilities. Working with the support of their communities, and with other authorities if appropriate, strategic policy-making authorities should identify suitable locations for such development where this can help to meet identified needs in a sustainable way.”
But is it really satisfactory for the Government to continue with the position that planning for housing is the role of local councils and that it is not going to remove that responsibility from them?
The Government has sought to address concerns that proposals of this scale may be difficult to deliver by way of the traditional Town and Country Planning Act 1990 regime, even if there is local support (big “if”). By way of the New Towns Act 1981 (Local Authority Oversight) Regulations 2018, it introduced an option for the procedures within the New Towns Act 1981 to be used by way of the creation of a “locally-led new town development corporation” at the application of the relevant local authority or locally authorities. MHCLG’s 2018 guidance document explains how the process is meant to work, although you will have to blow the dust off it – another process which I do not think has yet been used (and I place local development orders in a similar category – very little take up, and what there has been has not been in relation to new settlements).
So if no appetite for state-sponsored new settlements, no appetite for local authority sponsored new settlements under the 2018 Regulations and great difficulty with delivery through the traditional planning system (eg the West of England and North Essex Authorities plans, and more besides) – what else can be done to unlock the potential?
It is unsurprising that thoughts turn again to the NSIPs process.
Think tank (groan) the Social Market Foundation published a paper in June 2020 Unlocking Britain: Recovery and renewal after COVID-19 with a disparate series of proposals across various areas of policy. It is curious that in relation to planning, the paper’s big idea is to greatly expand the use of the NSIPs process:
““Here are the simple legislative steps we need to take to achieve this, and it can all be done by changes to the Planning Act:
A. Remove the need for DCOs to be made in accordance with an NPS – this won’t work for projects that are not of national significance, and some NPS do not exist, or are out of date anyway;
B. Shorten the time period required for public examination to four months (rather than six months as currently) because we would be dealing with smaller projects;
C. Reduce the time for the planning inspector and the Secretary of State (separately) to make their decisions under this process from three months to two months;
D. Limit the ability for the Secretaries of State to extend the time period they have for final decision–making (currently three months, hopefully changing to two months as per the above) to only being for special circumstances, such as national security or a national emergency.
When considering the changes (A) to (D) above, these mirror the provisions within the Planning Act that already exist for “material amendment” to DCOs – so there is an existing legislative precedent for this accelerated procedure.
Overall, this will mean that infrastructure projects, or housing developments of more than 1,000 homes, can be delivered with a high degree of certainty of success, within 12 months of the plan being submitted.”
So the idea of residential-led NSIPs for schemes of 1,000 homes or more. I’m really not sure that such centralisation of decision making in relation to so many projects is remotely practical, let alone desirable (whether for promoters, local authorities or communities.
⁃ What’s the problem for large scale housing projects?
⁃ How could DCOs help and what are the barriers?
⁃ What is needed to make a housing DCO regime effective?
They conclude that the potential is there, probably for schemes of more than 5,000 homes, but identify that action would be needed in at least five key areas, including the way that “need” and “location” are to be identified.
The post was published the same day as I was chairing a webinar discussion on exactly the same set of issues (panellists John Rhodes OBE (director, Quod), Bridget Rosewell CBE (Commissioner, National Infrastructure Commission), Gordon Adams (Battersea Power Station), Kathryn Ventham (partner, Barton Willmore) and Michael Humphries QC (Francis Taylor Building)). If you would like a link to a recording of the session please let me know.
Later in the week, a further much more detailed research document was published: Can development consent orders help meet the challenges of our time? by Barton Willmore, Womble Bond Dickinson, the Copper Consultancy. I recommend the document. It is written by people with practical experience of the subject and is based on solid survey work. It is everything that a think tank report is not.
Its recommendations:
“We also think that there are benefits to be gained from applying DCO principles to existing planning mechanisms as well as developing a DCO option for delivery of new settlements.
We therefore believe the Government and industry should look to explore the extension of the DCO process for new settlements and other complex developments by preparing a National Settlements Strategy (NSS) that:
• Identifies broad parts of the country suitable for new settlements/largescale developments (developed under DCO (and NPS) engagement principles with input from Local Authorities and devolved administrations);
• Enables different consenting and delivery models to be applied;
• Incorporates the DCO as a consenting model;
• Is drafted to provide the national needs case that gives certainty, to unlock significant financial investment from the UK and internationally; and,
• Is equivalent to the National Policy Statements.”
They conclude:
“In preparing a National Settlement Strategy we need to acknowledge up front that there will be some challenging issues, not least around managing engagement and Strategic Environmental Assessments. Equally, a DCO option for new settlements may look very different to a DCO for more established infrastructure projects. Therefore, we would welcome your views on some or all of the following questions, along with any wider reflections you have on this research:
1. How can a national settlements strategy be prepared in a way that engages regions and local communities alongside national infrastructure providers to create long term stability?
2. Which planning processes can benefit from applying the certainty principles established by the DCO process and how?
3. What could a DCO option for delivering new settlements look like in practice?
We will take these responses forward, along with our own thinking, into a second phase of work on how to make our recommendations a practical reality.”
Now that’s what I call a planning policy paper! We may see later this month whether these ideas are at all taking root.
Simon Ricketts, 11 July 2020
Personal views, et cetera
PS I got quite nostalgic thinking about failings of the eco-towns programme, having acted for the Bard Campaign in Bard Campaign v Secretary of State (Walker J, 25 February 2009). What a counsel team we had – Ian Dove QC (now Dove J), Chris Young (now QC) and Richard Harwood (now QC). This was a challenge to the Government’s April 2008 “consultation” document, “Eco-towns – Living a Greener Future”.
We basically challenged everything about it. Our case was that:
“In breach of the common law relating to consultation, the SEA Directive, the Aarhus Convention and the Code of Practice on Consultation, the Secretary of State has failed: 1. to consult on the principle of constructing eco-towns, alternatively any such consultation has to give sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response;
2. to consult on the key locational criteria for eco-towns;
3. to consult at all on the 42 locations proposed which were rejected by ministers in favour of the 15 proposed locations;
4. to provide adequate information to enable informed representations to be made. Instead, information has been produced late, has dribbled out in response to requests and some relevant (and non-confidential) material is still being withheld from the public;
5. to provide adequate time for consultation, given the late production of material.
Additionally, 6. a declaration is sought (because this still appears to be in issue) that the Eco-Towns policies are subject to the requirements of the Strategic Environmental Assessment Directive and Regulations.”
We lost on all grounds and Keene LJ refused us permission to appeal to the Court of Appeal. But the programme was abandoned in the run up to the 2010 general election. It’s often not the law that gets in the way – it’s politics.
Whether dog whistle politics, a dead cat strategy or a jibe at the triturus cristatus, the prime minister’s reference to “newt-counting delays” in his 30 June 2020 speech was no accident:
“Why are we so slow at building homes by comparison with other European countries?
In 2018 we built 2.25 homes per 1000 people
Germany managed 3.6, the Netherlands 3.8, France 6.8
I tell you why – because time is money, and the newt-counting delays in our system are a massive drag on the productivity and the prosperity of this country
and so we will build better and build greener but we will also build faster
and that is why the Chancellor and I have set up Project Speed to scythe through red tape and get things done”
The underlying messaging that was intended by the statement is of course clear: that there are environmental rules, “red tape”, previously foisted on us by Brussels, unnecessary, holding back development.
To continue with the animal references, this is a topical canard. I had in any event intended this week to sidestep the recent announcements about radical planning reform and go back to the possibly related question as to what is actually likely to happen from 1 January 2021 following the end of the Brexit transition period. My Town colleague Ricky Gama and I gave an online talk on this issue last week as part of the Henry Stewart Conferences course The Planning System. We need to focus again on all this, now that we are less than six months away from….what?
The EU (Withdrawal) Act received Royal Assent on 23 January 2020, amending in various respects the EU (Withdrawal) Act 2018 and giving Parliamentary approval for the withdrawal agreement between the UK and EU that was then completed on 1 February 2020. We left the EU on 31 March 2020 in the sense of no longer being part of its structures, including the European Parliament or European Commission. But we remain subject to EU law until 31 December 2020.
Until 31 December 2020, decisions of the UK government and UK public bodies can still be the subject of complaints to the European Commission and rulings by the European Court of Justice, and we are bound by changes in law and by any rulings of the ECJ by that date.
On 31 December 2020, EU law becomes “retained EU law” and existing rulings of European Court of Justice have binding effect.
However (not to scare the horses but…), from that date Parliament may review, amend or repeal all EU-derived domestic legislation without restriction. The Government can provide regulations as to how the UK courts should interpret retained EU law. The Supreme Court is not bound by any retained EU case law. Ministers can by regulations provide for any other relevant court or tribunal not to be bound (first consulting with the president of the Supreme Court president and other specified senior members of the judiciary). Indeed, the Government is already consulting as to how it might give freedom to lower courts to do this: it is no longer a hypothetical possibility – see Government consultation on lower courts departing from retained EU law (Philip Moser QC, 2 July 2020).
Of course we will go into 2021 with EU environmental law fully domesticated into our own systems. As far as planning law is concerned, the EIA, SEA, protected habitats and species regimes will remain, as already set out in our domestic legislation. But then what?
This Government has given no assurances.
There was previously a requirement in section 16 of the 2018 Act that the Government would maintain environmental principles and take steps to establish overseeing body, by publishing a draft Bill in relation to those matters by the end of 2018
Section 16 set out the relevant environmental principles ie
a) the precautionary principle so far as relating to the environment,
b) the principle of preventative action to avert environmental damage,
c) the principle that environmental damage should as a priority be rectified at source,
d) the polluter pays principle,
e) the principle of sustainable development,
f) the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,
g) public access to environmental information,
h) public participation in environmental decision-making, and
i) access to justice in relation to environmental matters.
A draft Bill was published by that deadline and its provisions, with some amendments (including a reduced version of that list), are now within the current Environment Bill.
The reduced list of environmental principles (in clause 16(5) of the Bill) is now as follows:
“(a) the principle that environmental protection should be integrated into the making of policies,
(b) the principle of preventative action to avert environmental damage,
(c) the precautionary principle, so far as relating to the environment,
(d) the principle that environmental damage should as a priority be rectified at source, and
(e) the polluter pays principle.”
It no longer includes the principle of “sustainable development” or the last three principles set out in the 2018 Act, which derive from the Aarhus Convention rather than directly from EU law.
Progress on the Bill has been delayed until September 2020 due to Covid-19 (whilst the Government has not chosen, by the 30 June 2020 deadline in the withdrawal agreement, to agree an extension to the 31 December date, which would of course have been possible on exactly the same basis). But in any event Royal Assent would only be the start of a long process of arriving at policy statements so as to deliver on those principles and have up and running a functional Office for Environmental Protection (recruitment for roles within the proposed OEP has not yet commenced).
So any “radical” reform of the planning system is likely to slip in ahead of oversight, in any meaningful way, by this new body or application of the principles that were intended at the time of the 2018 Act to plug the gap post Brexit.
In fact, it’s worse than that. Section 16 of the 2018 Act was repealed by the 2020 Act. There is no longer any duty upon the Government to adopt any particular environmental principles or to establish any independent overseeing body. If the Environment Bill is withdrawn, kicked into the long grass or, by way of amendment, stripped of meaning, there’s nothing to be done, the horse has bolted.
The December 2019 Queen’s Speech said this:
“To protect and improve the environment for future generations, a bill will enshrine in law environmental principles and legally-binding targets, including for air quality. It will also ban the export of polluting plastic waste to countries outside the Organisation for Economic Co-operation and Development and establish a new, world-leading independent regulator in statute.”
By way of political commitment, that’s all there currently is. (NB I think we need to give that “world-leading” epithet a rest – I am trying to think of a recent example where we wouldn’t have been content to swap “world-leading” or “world beating” for, say, “functioning”?).
So from 1 January 2021, what changes might we see to EU-derived environmental law?
It’s pure guess-work, because the Government will not presently be drawn on that subject (which makes the “newt” reference so triggering).
But do you think it was an accident that the last essay in the Policy Exchange publication Planning Anew, just before the tail-wagging endorsement at the end by the Secretary of State, was an essay entitled Environmental Impact Assessment fit for the 21st Century by a William Nicolle and Benedict McAleenan? A flavour:
“To make them fit for the 21st Century, EIAs should focus only on the environmental impacts of development, like natural ecosystems, biodiversity, water, and other components of natural capital. Greater weighting and priority could be given to the most pressing environmental impacts of today, such as biodiversity, given recent evidence of the scale of international and national wildlife decline.
There are several, more subjective facets of EIAs that need to be stripped out, as they dilute this focus and prioritisation of environmental impacts. Landscape aesthetics, for example, should not be included in EIAs, as they are not environmental impacts per se. Policy Exchange has led calls for beauty to be a central factor in the planning system. We applaud this, and have argued for the natural landscape to be the inspiration for architecture, but the EIA should be concerned with what the environmentalist Mark Cocker calls the “more than human”.”
Who are the authors? William Nicolle apparently joined Policy Exchange in 2019, having been a graduate analyst at a utility. Benedict McAleenan is managing partner at “political risk and reputation” firm Helmsley Partners.
The prime minister’s 30 June 2020 “Build, Build, Build” press statement promised a “planning Policy Paper in July setting out our plan for comprehensive reform of England’s seven-decade old planning system, to introduce a new approach that works better for our modern economy and society.”
If changes are proposed to EU-derived environmental laws, please can that be made absolutely clear so that we can have an informed debate. Change and improvement is possible but only where led by the science, not by the think tanks.
After all, any move towards a more zoning-based approach, where the development consenting process is simplified by setting detailed parameters at a plan-making or rule-setting level, will face complications due to the need for strategic environment assessment of any plan or programme required by legislative, regulatory or administrative provisions that sets the framework for subsequent development consents and which is likely to have significant environmental effects – assessment which has become highly prescriptive, particularly in terms of the need to consider, in detail, reasonable alternatives to the selected policy option. Projects which are likely to give rise to significant effects on the environment require environmental impact assessment. It must be shown that plans or projects will not adversely affect defined species of animals or the integrity of defined habitats – with rigorous processes and criteria. Politicians will be bumping up against EU-derived environmental law, and those environmental principles (not yet finalised), at every turn.
Of course, the Government would not have a completely free hand in changing or removing these processes. We are subject to wider international duties, under, for instance the European Convention on Human Rights, the Aarhus Convention, the Paris Agreement (climate), the Espoo Convention (environmental assessment) and the Ramsar Convention (habitats). Trade deals in relation to the export of our goods or services, with the EU and/or other countries and trading blocs, may also require specific commitments.
But, if the Government is moving rapidly towards “comprehensive” reform of the planning system, it’s a fair question to ask: What changes are proposed by this Government to these EU-derived regimes from the end of this year?
Isn’t this the elephant in the room?
Yours faithfully, a newtral observer.
Simon Ricketts, 4 July 2020
Personal views, et cetera
PS Two webinars coming up, free registration, covering the sorts of issues I cover in this blog. Do register and tune in if of interest:
4pm 7 July (hosted jointly by Town Legal and Francis Taylor Building): NSHIPs? The case for residential-led DCOs. I am chairing a discussion between John Rhodes OBE (director, Quod), Bridget Rosewell CBE (Commissioner, National Infrastructure Commission), Gordon Adams (Battersea Power Station), Kathryn Ventham (partner, Barton Willmore) and Michael Humphries QC (Francis Taylor Building). Register here: https://zoom.us/webinar/register/WN_7SoJtOhqQwSJNt0jtmUFVA
5pm 14 July (hosted by Town Legal): Living, Working, Playing – What Does The Covid Period Teach Us? My Town partner Mary Cook is chairing a discussion between Steve Quartermain (Government’s former chief planner, consultant Town Legal), Karen Cook (founding partner, PLP Architecture), Jim Fennell (chief executive, Lichfields), Simon Webb (managing partner, i-transport) and myself. Register here: https://zoom.us/webinar/register/WN_pSbroYIoSRioMXvtDlGP3Q
The following is a summary prepared by my Town colleagues Victoria McKeegan, George Morton Jack and Meeta Kaur. I will leave any commentary as to the implications for another week.
Summary
The Bill contains temporary provisions to facilitate the extension of the duration of certain planning permissions and listed building consents. This ensures that relevant permissions and consents will remain extant, enabling development to commence following delays caused by Covid-19. As well as extending the time limit for permissions and consents expiring between enactment of the new provisions and 31 December 2020, these measures also have retrospective effect, facilitating the revival of permissions which expired since 23 March 2020, subject to an ‘additional environmental approval’. The local planning authority may only grant such approval if it is satisfied that EIA and habitats assessments remain up to date. In all cases, the time limits for commencing development are extended until 1 April 2021.
The Bill introduces a fast-track planning application process for the temporary variation of both planning conditions limiting construction site working hours and documents approved pursuant to planning condition containing such limitations. The fast-track process is facilitated through a requirement for the local planning authority to respond to the application within 14 days from the day after submission, and deemed approval in the event of no response.
The Bill also introduces measures introducing flexibility for the Planning Inspectorate to use more than one of the procedures to determine planning appeals in-combination. Appeals could take a hybrid form, combining elements of written representations, hearings and planning inquiries.
The final planning measure affords the Mayor of London temporary flexibility to make the London Plan available for inspection by appropriate electronic means, rather than having to make copies available for inspection at the Greater London Authority’s offices and to distribute copies when requested.
The Regulations amend permitted development rights (“PDR”) – the rights under the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO) that effectively grant planning permission for specific types of development with no need for a planning application, although subject to prior approvals from the local planning authority (LPA) – and certain advertising and other regulations.
The principal changes to PDR are:
o a new requirement for provision of adequate natural light where PDR are exercised for changes of use to housing. This provision relates specifically to all habitable rooms, and is intended to improve the quality of homes delivered under existing PDR for changes of use to housing;
o new PDR for temporary use of land, including temporary use of land by developers for any purpose subject to several restrictions (with this right in force from 25 June 2020 to 31 December 2020), and by local authorities for holding a market (with this right in force from 25 June 2020 to 23 March 2021);
o new PDR for construction of new homes on detached blocks of flats, where the permitted development consists of works for construction of up to two additional storeys of new dwellinghouses (meaning flats for this new PDR), immediately above purpose-built detached block of flats of three or more above-ground storeys. This new PDR permits various related works including reasonably necessary engineering works to construct the additional storeys and the new flats, and is subject to several restrictions.
The PDR amendments also include some minor, more technical or clarificatory updates to the GPDO.
The Regulations include some minor amendments to advertising and compensation regulations.
The Regulations come into force in two stages: first, on 25 June 2020 (including changes to PDR for temporary use of land); and second, on 1 August 2020 (including changes to PDR for residential development).
In detail
THE BILL
1.1 Part Three of the Bill relates to planning. This main section 1 provides a brief summary of those planning matters.
Automatic extension of planning permissions
1.2 The Bill introduces three new sections to the TCPA 1990 on a temporary basis up until 1 April 2021. New section 93A modifies any condition attached to a planning permission imposing a time limit for the commencement of development which is due to expire between the day on which the enabling provision of the Business and Planning Act (the “Act”) comes into force and 31 December 2020. The time limit for the commencement of development is automatically extended to 1 April 2021.
1.3 New section 93B has the same effect as section 93A (extending the time period for implementation until 1 April 2021) for any planning permission subject to a condition that the development must be commenced by a time falling between 23 March 2020 and the day on which the enabling provision of the Act comes into force, if an ‘additional environmental approval’ is granted or deemed to be granted in respect of that permission. As such, it is section 93B which creates retrospective effect, effectively reviving planning permissions which expired during the lockdown period (subject to ‘additional environmental approval’).
1.4 As regards the ‘additional environmental approval’, an application must be made to the local planning authority and contain sufficient information to enable it to determine whether approval should be granted . There is provision for deemed approval of the application within 28 days (or a longer agreed period) if the local planning authority does not issue its decision within this period. The local planning authority may only grant approval if the ‘EIA and habitats requirements’ are met. The EIA requirement is met if either the development is not EIA development or the development remains the subject of an up-to-date EIA assessment. The habitats requirement is met if the development would not presently require an appropriate assessment (if planning permission were being granted for the development now) or, if it would, the development was previously subject to assessment which ascertained that the development would not adversely affect the integrity of a European site / offshore marine site and the local planning authority is satisfied that the assessment remains up to date.
1.5 An ‘additional environmental approval’ is absolute and may not be granted subject to condition. Further, no ‘additional environmental approval’ may be granted following 31 December 2020, unless granted on an appeal lodged on or before that date. There is a right of appeal against a refusal of an ‘additional environmental approval’.
Automatic extension of outline planning permissions
1.6 The Bill introduces further new sections to the TCPA 1990 in relation to outline planning permissions, which have similar effect to those mentioned above in relation to full planning permissions. Again, the new sections are introduced on a temporary basis up until 1 April 2021.
1.7 New section 93D modifies any condition attached to an outline planning permission that imposes a time limit for the submission of an application for approval of any reserved matter which falls between 23 March 2020 and 31 December 2020. The time limit for submission of such applications is extended to 1 April 2021.
1.8 New sections 93E and 93F have the same effect as new sections 93A and 93B, but apply in relation to outline planning permissions. They extend the time period by which development must be begun to 1 April 2021 for those outline planning permissions due to expire between the date on which the enabling provision of the Act comes into force and 31 December 2020. Further, the extension of time for implementation and the ‘additional environmental approval’ process is the same as for full planning permissions in the case of outline planning permissions which expired between 23 March 2020 and the date that the relevant enabling provision of the Act comes into force.
Automatic extension of listed building consents
1.9 The Bill introduces a new section 18A to the Planning (Listed Buildings and Conservation Areas) Act 1990. This modifies any condition attached to a listed building consent which imposes a time limit for the commencement of works which expires between 23 March 2020 and 31 December 2020. The time limit for commencement in such cases will be extended to 1 April 2021. Again, the temporary modifications expire on 1 April 2021.
1.10 The Secretary of State may make regulations to extend the time periods set out in these new sections facilitating the automatic extension of planning permissions and listed building consents, along with their expiry date.
Further measures
Modification of conditions relating to construction working hours
1.11 The Bill introduces three new sections to the TCPA 1990 in order to facilitate a new fast-track application process for the temporary variation of planning conditions relating to construction site working hours. The Explanatory Notes to the Bill state that the new process is designed to enable the facilitation of safe construction working practices in line with social distancing guidance issued by the Government. The fast-track process expires on 1 April 2021.
1.12 New section 74B applies to planning permissions which impose a condition specifying the times during which construction activities may be carried out or where a similar restriction is contained in a separate document approved by a local planning authority pursuant to a planning condition. It allows an applicant to apply to modify the restrictions imposed either by way of condition of approved document so as to allow construction activities to be carried out for a longer period than permitted on a particular day or on a day which is currently not permitted.
1.13 The application must specify the date from which it is proposed that the modifications should take effect which can be no earlier than the end of the period of 14 days from the day after submission of the application. Such an extension may only be for a temporary period not extending beyond 1 April 2021.
1.14 New section 74C provides that the local planning authority can approve the application, refuse the application or determine, with the agreement of the applicant, different modifications or alternative dates during which they will have effect. There is provision for deemed approval of the application if the local planning authority does not respond within a period of 14 days from the day after submission of the application, hence this being termed a ‘fast-track’ process. There is a right of appeal against refusal of an application under the new procedure.
Procedure for certain planning proceedings
1.15 The Bill amends the power of the Secretary of State to determine which procedure (i.e. written representations, hearing or local inquiry) should be adopted in various appeal proceedings. The amendments effectively facilitate a combination of these proceedings and are permanent. They are described in the Explanatory Notes as providing flexibility for a Planning Inspector to use more than one procedure to determine planning appeals which is required to enable the Planning Inspectorate to deal with cases quickly and effectively during the coronavirus pandemic. However, they are also described as providing ‘ongoing efficiencies to the work of the Planning Inspectorate’. The amendments apply to section 319A(2) of the TCPA 1990, section 88D(2) of the LBC Act and section 21A(2) of the Planning (Hazardous Substances) Act 1990.
Electronic inspection of spatial development strategy
1.16 The Bill temporarily modifies the effect of section 43 of the Greater London Authority Act 1999 until 31 December 2020. Section 43 of the GLAA requires the Mayor of London to take steps to give adequate publicity to various strategies and to make the current versions available for public inspection at the GLA’s offices, as well as provide copies where requested. The amendments apply solely in relation to the Mayor’s spatial development strategy, namely the London Plan. In respect of the London Plan, the Bill removes the requirement to make the current version of the London Plan available for inspection and to provide copies if a copy of the current version of the strategy is available for inspection free of charge by appropriate electronic means.
Commencement
1.17 The Bill provides that the permission extension changes would come into force 28 days after the Act is passed, the construction site working hours proposal would come into force six days after the Act is passed, while the appeal procedure flexibility and GLAA amendments would come into force on the day on which the Act is passed.
What’s Next?
1.18 MPs will next consider all stages of the Bill in one day on Monday 29 June 2020. The Government is aiming for it to pass into law by 4 July 2020.
2. THE REGULATIONS
2.1 This main section 2 provides a brief summary of the Regulations’ amendments.
Definitions of “dwellinghouse” and “flat” (Regulation 3, in force on 1 August 2020)
2.2 Regulation 3 updates article 2 of the GPDO’s definitions of “dwellinghouse” and “flat” applying to the new “Class A” PDR (“New dwellinghouses on detached blocks of flats”) in Schedule 2, Part 20 of the GPDO (which is introduced by Regulation 22, for which see the comments below on Regulation 22).
Extension of determination period for prior approval applications (Regulation 4, in force on 1 August 2020)
2.3 Regulation 4 amends article 7 of the GPDO (“Prior approval applications: time periods for decision”). It allows an applicant and an LPA to agree a period longer either than 8 weeks for the authority to determine prior approval applications, or than a time period otherwise specified in the GPDO.
New prior approval fee (Regulation 5, in force on 1 August 2020)
2.4 For the existing PDR “Enlargement, improvement or other alteration of a dwellinghouse” (GPDO Schedule 2, Part 1, Class A), in relation to development of certain dwellinghouses where prior approval is required for a larger single storey rear extension, there is a new a prior approval fee (which is set out in the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012).
Additions to roof of a dwellinghouse (Regulation 6, in force on 1 August 2020)
2.5 For the PDR “additions etc to the roof of a dwellinghouse” (GPDO Schedule 2, Part 1, Class B), in relation to alteration of a house’s roof, a rear or side extension now includes an original projection or a subsequent extension of the house that extends from the rear or side of the principal part of the original house.
Limit on new PDR for new dwellinghouses (Regulations 5 to 12, in force on 1 August 2020)
2.6 Regulations 5 to 12 amend PDR under Schedule 2, Part 1 of the GPDO.
2.7 They operate to limit the new “Class A” PDR (“New dwellinghouses on detached blocks of flats”) in Schedule 2, Part 20 of the GPDO (for which see our comments below on Regulation 22).
2.8 Regulations 5 to 12 ensure that a new home built under that new “Class A” PDR cannot use PDR under Schedule 2, Part 1 of the GPDO (“Development within the curtilage of a dwellinghouse”).
2.9 They do so in relation to the following classes in Schedule 2, Part 1:
(a) Class A – Enlargement, improvement or other alteration of a dwellinghouse;
(b) Class B – additions etc to the roof of a dwellinghouse;
(c) Class C – other alterations to the roof of a dwellinghouse;
(d) Class D – porches;
(e) Class E – buildings etc incidental to the enjoyment of a dwellinghouse;
(f) Class F – hard surfaces incidental to the enjoyment of a dwellinghouse;
(g) Class G – chimneys, flues etc on a dwellinghouse; and
(h) Class H – microwave antenna on a dwellinghouse.
Adequate natural light in homes (Regulations 13 to 19 and 27, in force on 1 August 2020)
2.10 To improve the quality of homes delivered under existing PDR for changes of use to housing, the Regulations introduce a new requirement for provision of adequate natural light in all habitable rooms (defined as “any rooms used or intended to be used for sleeping or living which are not solely used for cooking purposes, but does not include bath or toilet facilities, service rooms, corridors, laundry rooms, hallways or utility rooms”).
2.11 This requirement applies to development under the following change of use classes under Schedule 2, Part 3 of the GPDO:
(a) Class M – retail, takeaways and specified sui generis uses to dwellinghouses;
(b) Class N – specified sui generis uses to dwellinghouses;
(c) Class O – offices to dwellinghouses;
(d) Class PA – premises in light industrial use to dwellinghouses; and
(e) Class Q – agricultural buildings to dwellinghouses.
2.12 The new requirement for provision of natural light involves, as part of the prior approval application process, mandatory submission to the LPA of design details, in a floor plan indicating the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the elevations of the dwellinghouses. Further (under Regulation 18), “the local planning authority must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses”.
2.13 Regulation 27 has transitional provisions accounting for where developers, as of 1 August 2020, have already submitted a prior approval application in respect of Classes M, N, O, PA and Q as above. These transitional provisions ensure that any such applications submitted before 1 August 2020 will be determined in accordance with PDR in force before that date. Regulation 27 also covers certain circumstances where a developer may, after 1 August 2020, continue to rely on the PDR in force before that date.
2.14 The same requirement for provision of natural light in respect of Classes M, N, O, PA and Q as above applies to the new “Class A” PDR in Schedule 2, Part 20 of the GPDO, for which see our comments below on Regulation 22.
Additional temporary use of land (Regulation 20, in force on 25 June 2020)
2.15 Regulation 20 creates a new PDR for “additional temporary use of land” (as the new “Class BA” in Schedule 2, Part 4 of the GPDO). This new right permits temporary use of land for any purpose.
2.16 There are the following additional points to note in relation to use of land under the new right:
(a) the right is in addition to use under the existing Schedule 2, Part 4, Class B PDR for temporary use of land;
(iii) the right includes the right to place on the land any moveable structure (such as a stall or a marquee) for the purposes of the permitted use;
(b) any use of land for any purpose must be for not more than 28 days in total during the period 1 July 2020 to 31 December 2020; of those 28 days, no more than 14 days in total may be for the of (i) holding a market, (ii) motor car and motorcycle racing including trials of speed, and practising for these activities;
(c) development is not permitted if the land in question is a building or is within the curtilage of a listed building; if the use of the land is for a caravan site; if the land is, or is within, a site of special scientific interest and the use of the land is for: (i) motor car and motorcycle racing including trials of speed or other motor sports, and practising for these activities; (ii) clay pigeon shooting; or (iii) any war game, or if the use of the land is for the display of an advertisement;
(d) the right will cease to have effect from 1 January 2021.
PDR for local authority markets (Regulation 21, in force on 25 June 2020)
2.17 The Regulations introduce a new PDR “Class BA” to part 12 of Schedule 12 of the GPDO, for local authorities to use land for holding a market (including provision of any moveable structure related to the market use). This PDR lasts until 23 March 2021.
PDR for Construction of new homes on detached blocks of flats (Regulation 22, in force on 1 August 2020)
2.18 This PDR follows from the MHCLG consultation “Planning Reform: Supporting the high street and increasing the delivery of new homes” (October 2018).
2.19 The Regulations introduce a new PDR to Schedule 2 of the GPDO inserting a new Part 20 Class A. It allows development consisting of works for construction of up to two additional storeys of new dwellinghouses (which means flats for this new PDR), immediately above purpose-built detached block of flats of three or more above-ground storeys.
2.20 It also permits, in connection with this, the following works:
(a) reasonably necessary engineering works to construct the additional storeys and the new flats;
(b) replacement of existing or installation of additional rooftop plant reasonably necessary for the new flats;
(c) Construction of safe access and egress including additional external doors or staircases to escape fire;
(d) Construction of storage, waste or other ancillary facilities reasonably necessary for the new flats.
2.21 There are limitations on these connected works, as well as a significant number of other limitations which render the PDR unavailable, including those in the following list. Hence, development is not permitted if:
(a) the permission to use any building as a dwellinghouse was granted by PDRs set out in any of classes M, N, O, P, PA or Q of the GPDO, which are those that permit changes of use from various uses to residential (and includes the contentious office to residential PDRs);
(b) the building was constructed before 1 July 1948 or after 5 March 2018 (the latter being the date on which the government first announced its intention to introduce the upward extension PDR);
(c) the extended building would be greater than 30m high;
(d) it does not comply with limitations on floor to ceiling heights of the additional storeys and the overall height of the roof of the extended building;
(e) the site on which the building is located is or forms part of a conservation area, National Park, AONBs, or SSSI, a listed building or a scheduled monument or land within their curtilage.
2.22 The PDR is also conditional on a number of matters which include the following:
(a) before beginning the development prior approval must be sought as to the following impacts: transport and highways, air traffic and defence assets, contamination and flooding risks, external appearance, provision of adequate natural light in all habitable rooms and amenity of existing and neighbouring buildings including overlooking, privacy and loss of light and impacts on protected views.
(b) the development must be completed within 3 years and the LPA must be notified of completion;
(c) a report must be submitted to the LPA setting out how the construction will be managed.
2.23 There is a specific procedure set out for applications for prior approval for this PDR which includes a list of information that must accompany the application and the bodies that must be consulted on for the purposes of the specified impacts (see (a) above). The LPA must publicise the application by way of site notice and notice to owner/occupiers of the existing building and neighbours.
2.24 It is worth noting that applications must be accompanied by detailed plans that show (amongst other things) the position of the windows and doors and the LPA must refuse prior approval if adequate natural light is not provided in all the habitable rooms.
2.25 The LPA can require further information in order to determine the application which may include assessments of impacts or risks or how those may be mitigated having regard to the NPPF. When determining the application the LPA must have regard to representations received in response to consultation and the NPPF so far as is relevant to the prior approval application, in the same way as if it were a planning application.
2.26 The LPA must determine a prior approval application within 8 weeks but unlike some other PDRs there is no deemed approval if the LPA fails to issue a decision within that period. There is however a right of appeal for non-determination. The development must not begin before prior approval is received and must be carried out in accordance with the approved details. Prior approval can be granted unconditionally or subject to conditions reasonably related to the subject matter of the approval.
2.27 The new flats may only be used for Class C3 residential purposes and do not benefit from any of the existing PDRs for dwellinghouses in Part 1 of the GPDO.
2.28 This new PDR can be withdrawn (by way of a direction under article 4 of the 2015 Order), and as a result the Regulations amend “The Town and Country Planning (Compensation) (England) Regulations 2015” so as to limit a LPA’s compensation liability in the event it issues an article 4 direction.
2.29 The Planning Practice Guidance may yet be updated to reference this new PDR but no update has been issued at the time of writing. CIL will be payable on the new floorspace and, in accordance with the existing PPG, a LPA can require planning obligations, but the PPG currently requires that these should be limited to matters requiring prior approval and should not for example seek contributions for affordable housing.
Advertising (Regulations 23 and 24, in force on 1 August 2020)
2.30 Regulations 23 and 24 amend the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 in order to correct the Town and Country Planning Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019. They do so by means of inserting definitions of “electronic communications apparatus”, “electronic communications service” and “telephone kiosk”.
Compensation (Regulations 25 and 26, in force on 1 August 2020)
2.31 See the comments above on the Town and Country Planning (Compensation) (England) Regulations 2015 in relation to Regulation 22.
What next?
2.32 The Explanatory Memorandum to the Regulations notes in relation to the new PDR for homes on detached blocks of flats (Regulation 22) that “Government also intends to introduce further permitted development rights for building upwards, including for new and bigger homes”.
Aren’t we bored now of Zoom meetings? They are no substitute for the real thing.
But there is another topical Z word. Should we adopt a Zone based approach to development consenting? Again, is this any substitute for the real thing?
The Government seems to have determined that it has a once in a lifetime opportunity, to (according to Robert Jenrick) “rethink planning from first principles” with a shake-up designed to accelerate the process.
“The time has come to speed up and simplify this country’s overly bureaucratic planning process,” he said on Wednesday. “This government is thinking boldly and creatively about the planning system to make it fit for the future.” (England’s planning system set for shake-up Financial Times, 10 June 2020).
“The Government should announce a clean break with the land use planning system introduced in 1947 that largely continues in the same form today. This reform programme should focus on the following issues:
• Ending detailed land use allocations. The planning system should not try to systematically control what specific activity can take place on individual land plots based on fallacious projections of housing and commercial ‘need’. Local planning authorities have proved ineffective and inefficient at micro-managing land markets. In this regard, the supply of new homes, offices and other types of land use should no longer be capped by local planning authorities in local plans or by site allocations.
• Introducing a binary zonal land use planning system. Land should be zoned either as development land, where there is a presumption in favour of new development, or non-development land, where there is not a presumption and minor development is only possible in more restricted circumstances. Land zoned as development land will include existing urban areas and new urban extensions made possible by infrastructure improvements. In this new system:
• Zones should, in general, have no reference to what specific land uses are allowed on individual private land plots. Market conditions should instead determine how urban space is used in the development zone. Land and buildings in the urban area would then be able to change use without requiring the permission of the state (as long as rules on separating certain harmful uses are not broken, as detailed below).
• Zonal designations should be separate from any concept or calculation of ‘need’.
Instead, they should be dependent on metrics that determine whether land has good access potential, whether new development would cause environmental disturbance; and the potential for an existing built development to expand. Zones should be updated an ongoing basis and would need to be periodically reviewed by the Planning Inspectorate.
• These proposals do not negate the need to separate certain harmful uses that have a negative impact on neighbours, for instance a quarry next to a children’s play park. Nor do the proposed reforms negate the need to protect certain uses, for instance for their natural or heritage value. These incompatible and protected uses should be clearly defined in the local plan.”
In February 2020 co-author Jack Airey becomes no 10’s housing and planning special advisor.
Robert Jenrick publishes his pamphlet Planning For The Future (12 March 2020), setting out a range of proposals which are to form the basis of a Planning White Paper, then promised for Spring 2020 but now of course delayed.
The pamphlet picks up on some of the themes of the Policy Exchange work and particularly on the Z word, but in more cautious terms:
“Expand the use of zoning tools to support development – the government will outline further support for local areas to simplify the process of granting planning permission for residential and commercial development through zoning tools, such as Local Development Orders. The government will trial the use of templates for drafting LDOs and other zonal tools to create simpler models and financial incentives to support more effective use. The government has also launched a consultation on a new UK Freeport model, including on how zoning could be better used to support accompanying development.”
(I comment on the proposals in my 21 March 2020 blog post What To Do?).
So what is actually happening? In a House of Lords debate on 8 June 2020, there was this exchange:
I declare my interest as noted in the register. Can the Minister confirm the reports across the weekend media that the Government are intending to take planning decisions away from councils and give them to development corporations? This is extremely concerning after recent developments in Tower Hamlets, which resulted in the developer not having to pay between £30 million and £50 million in the community infrastructure levy?
The situation at the moment is that there is a planning commission that has started under my right honourable friend Chris Pincher, the planning Minister. I cannot make any further comments about what the noble Baroness has read in the media.”
There is nothing else in the public domain about this “planning commission”, although of course, as referred to in this exchange, there has been much speculation in the media. Back to that 10 June FT piece:
“Downing Street has set up an advisory panel that includes Bridget Rosewell, the national infrastructure commissioner who recently headed a review into accelerating planning appeal inquiries, property developer Sir Stuart Lipton and barrister Christopher Katkowski.
The other members are Nicholas Boys Smith, founder of Create Streets, co-chair of the Building Better, Building Beautiful Commission, and Miles Gibson, head of UK research at advisory group CBRE.”
The piece speculates:
“Ministers hope that the reforms can be agreed in time for a wider economic announcement in July by Rishi Sunak, the chancellor, which will also include extra infrastructure spending.”
If we are talking about fundamental changes to the planning system, of course reforms cannot be “agreed” in time for July. But might we expect this delayed Planning White Paper by then? I suspect that separately and ahead of the white paper we will see legislation in relation to shorter-term responses to the current crisis, including the extension of planning permission time limits and changes to PD rights.
In the meantime, the think tank onslaught continues. The prompt for the 10 June FT piece was the publication by the Policy Exchange of a series of essays: Planning Anew: A collection of essays on reforming the planning system for the 21st century. There are pieces by Bridget Rosewell CBE, Professor Robert Adam, Charles Dugdale, Warwick Lightfoot, David Rudlin, John Myers, Jamie Ratcliff, Reuben Young, Dr Sue Chadwick, William Nicolle and Benedict McAleenan.
The essays are diffuse in their themes and I would be wary of drawing too much from them.
There are some eye-catching comments from Bridget Rosewell:
“It’s clear that we can’t stop humans planning, or probably being planners. But we must abolish the Plan as a shibboleth, a straitjacket and an industry”
“Abolishing the current planning edifice does not remove the need for frameworks for permissions. Tensions still exist and must be resolved. My review of Planning Inquiries showed that they could be done twice as fast just by applying sensible rules, most of which already existed, to manage the process. Other planning disputes are often also resolvable without having a complicated set of rules including local plan preparation and examinations in public.”
David Rudlin’s contribution, News from Nowhere: the future of planning and cities, addresses zoning full-on. It is a fantasy piece, looking back from a 2050 utopia that had been delivered in part by a change to a zoning system in 2020. To give you a flavour:
“Clara and William transferred to a water taxi, heading down the Irwell, canyoned by the towers of Manchester and Salford that William remembered being thrown-up in a brief moment of madness in the late 2010s. As they passed into the Ship Canal, Clara explained that the new spatial planning system had allowed for the much more balanced growth of the conurbation. The inner areas of Manchester and Salford had been developed with mid-density neighbourhoods of housing, apartments and workspace resembling the cities of continental Europe. Higher density nodes, like those he had seen from the train, had been promoted around transport interchanges and local centres. There were still plenty of suburbs, of course, like the one where Clara lived with her family that they would visit later, but the overall structure of the conurbation made much more sense and was far more sustainable.
This had happened as a result of the new planning structure introduced in 2020. It had been based on a three tier system that had finally given some clarity to the way that the country had been planned, as well as rejuvenated the role and status of planners like Clara. The top tier was a National Spatial Plan, the middle was City Region / County Spatial strategies and the third was district-level zonal coding plans, but more of that in a moment”
The piece (and indeed the interesting debate about it when David Rudlin guested on Have We Got Planning News For You on 18 June 2020) illustrates the problem with the current debate, because surely what is contemplated (and flagged in March by Robert Jenrick), whilst no doubt “radical”, is not an across-the-board move to a system of comprehensive zoning plans – and so there is the risk that we all have a theoretical debate in one side of the room and fail to engage with the more practical reality that may be emerging across the way. I sensed the same impractical utopianism in another think tank piece published this week: Planning for the future: How flexible zoning will end the housing crisis (Anthony Breach, Centre for Cities, 19 June 2020).
Because the real debate is not a straight-forward one. How can we focus so much on the Z word before considering:
⁃ what are the Government’s policy objectives, and how does it prioritise as between them?
⁃ in which ways does the Town and Country Planning Act system play its part in meeting those objectives?
⁃ in what ways can the operation of the existing system be improved and in what ways are changes required, so as not just to reflect current policy objectives but as a resilient engine to be applied towards whatever may be future political priorities? Or is the idea to lock the engine into a specific political direction?
⁃ how do we guard against unintended consequences and against new blockages forming, if for instance the stress point between the potential for profit and the restriction on certain forms of development moves exclusively to the process of arriving at the zoning plan or scheme? That stress point is where there is the potential for delay, political difficulties and legal challenge. (In our present system of course we have multiple stress points!).
⁃ to what extent would a form of zoning (ie a greater level of predictability being given via the rule-setting and policy-forming stages in return for, at the project stage, less flexibility and less room for political discretion) be better or worse than the current system at achieving those policy objectives?
It’s difficult because those policy objectives will surely not just not include the Covid-accentuated need for housing and economic activity, but the need for communities to continue to have an appropriate level of influence over outcomes and the need not to rule out, through rigid prescription, unexpected forms of development which may be in the public interest but simply not anticipated by the plan?
For a really good, detailed analysis of zoning, different models, the pros and cons and potential application to our English system I recommend Jennie Baker’s blog post Should zoning be introduced in England? (Lichfields, 14 May 2018). I also strongly recommend that you read Zack Simons’s #planoraks blog post Welcome to Euclid! (16 June 2020), which, aside from examining the landmark 1926 US Supreme Court case on zoning, Village of Euclid v. Ambler Realty Co, pulls us back to the guidance that the Planning Advisory Service have already published on preparing Local Development Orders, surely one of the prime mechanisms within our existing system for taking a more zoning-based approach (as is specifically mentioned in that passage from Planning For The Future).
Personally speaking, surely there are also two other opportunities to expand the use of existing mechanisms, so as to move more towards what might be termed a zoning-based approach to planning, if this what is required.
First, there is the potential to expand the use of the permission in principle route, introduced in the Housing and Planning Act 2016 but currently far too narrow in its scope. What about building on the existing regime by placing an enforceable duty on LPAs to identify land that is appropriate for permission in principle specifying the location, land use and development parameters? As suggested in a paper by Field, Somerville and Bischoff, Permission in Principle under the Housing and Planning Act 2016: Considering an Australian Approach [2017] JPL 338, such ‘zoning’ overlay permissions in principle could either be promoted by local planning authorities as part of their local plan/ separate mini-development plans, by neighbourhoods through neighbourhood plans or alternatively requested by landowners/ promoters if certain defined criteria are met.
Secondly, the whole Use Classes Order/General Permitted Development Order system is already a form of zoning. Any further liberalisation in relation to, for instance, “high street” uses, is utilising an existing form of zoning. It might be said that recent problems in relation to permitted development have been as a result of the GPDO not being sufficiently prescriptive in relation to building specifications (or perhaps the lack of sufficient protections by way of the Building Regulations) and as a result of the ability to dodge affordable housing or other social infrastructure requirements, rather than through any more fundamental flaw in the basic concept.
As we try to make sense of all this, I have two final suggestions:
My firm is co-hosting with Landmark Chambers a, yes, Zoom, webinar panel discussion on these very issues at 5pm on 23 June 2020. I am chairing the panel which comprises Bridget Rosewell, Sir Stuart Lipton, Steve Quartermain, John Litton QC, Charlie Banner QC and my Town partner Duncan Field. We have had over 800 registrations so far – I am not the only one focused on the Z word it seems – but you can still register for free here.
Alternatively, if you need some fresh air after all this, there is another topical four letter word beginning with Z. Zoos are now open.
The next time you hear someone reprise Dominic Cummings’ February 2020 riff on the need for “urgent action on the farce that judicial review has become”, it’s worth thinking back to cases like R (Holborn Studios) v London Borough of Hackney (No 2) (Dove J, 11 June 2020). Sometimes it’s only the pesky lawyers (here Richard Harwood QC and solicitor Susan Ring, as well of course as a switched on judge) who, via judicial review, are finally able to cut through the sheer fudge and obfuscation of the planning application process.
This was the second time around for Holborn Studios, described in the judgment as “the leaseholder of 49-50 Eagle Wharf Road where they run one of the largest photographic studio complexes in Europe”. The studios have long campaigned against the proposed redevelopment of their building (for instance see What will become of Holborn Studios? (Londonist, 25 August 2017)).
The first planning permission which the London Borough of Hackney had purported to grant, in November 2016, was quashed by the High Court in R (Holborn Studios) v London Borough of Hackney (No 1) (Deputy Judge John Howell QC, 10 November 2017). The judge found that there had been an unlawful failure to consult the claimants and others on amendments made to the planning application and that the council had unfairly failed to disclose unredacted two letters on which officers had relied to support their view that proposed studio spaces in the basement were workable and that their layout was acceptable.
By the time of that first judgment a second application for planning permission had already been made. It was granted on 9 August 2019. Richard Harwood QC had indeed spoken at the planning committee meeting on behalf of Holborn Studios, seemingly to no avail. Again judicial review. The campaign against redevelopment continued (for instance see Battle to save Holborn Studios continues as celebrities and photographers line up in support (Hackney Citizen, 18 November 2019)).
When the case was heard in front of Dove J on 17 March 2020 there were three grounds of challenge but it is worth focusing on the first two, namely:
“Ground one is a sequence of legal contentions related to the information provided in respect of the viability assessment for the proposed development which informed the contributions which were sought from the interested party, in particular in relation to affordable housing. It is said by the claimant that the defendant’s approach to this issue failed to comply with national planning policy in relation to the provision of information in respect of viability assessments; that the defendant’s approach was in breach of a legitimate expectation in respect of the disclosure of viability information and, finally, that as a matter of law the viability information provided was in breach of the defendant’s duties in relation to the publication of background papers to the committee report. Ground two is the allegation that the defendant’s guidance for the members of its planning committee were unlawful in so far as they precluded members from reading lobbying material submitted to them by consultees and required that instead this material was passed to officers unread.”
For a very good summary of the relevant facts, and the conclusions reached by the judge, I will now pause for two minutes whilst you read this: Access to viability assessments: Holborn Studios 2 (Richard Harwood QC, 11 June 2020).
Or even better if you have ten minutes, read the judgment itself. Summaries sometimes do not bring across the starkness of the judge’s description of events and analysis.
Some choice passages from the judgment:
On viability
A concern was raised by Mr Harwood at the planning committee meeting that “that the material on viability in the public domain appeared to demonstrate that the interested party’s consultants had undertaken the exercise on the basis of a residualised value, rather than taking an existing use value plus approach which was what was required by policy” and the point was also taken up by a councillor. Dove J chooses to relate the following, including a verbatim quotation of the meaningless response that councillors received:
“Mr Robert Carney, who had been one of the defendant’s officers and who had been involved with the consideration and negotiation of the viability of the development (albeit that by the time he attended the committee meeting he was working for a consultancy) was called upon to address these concerns, and in particular whether or not a residualised value approach had been taken to the viability exercise. His observations in respect of this issue, as recorded on the transcript contained within the court’s papers, were as follows:
“Perhaps I’ll deal with the specifics of the, the values of where- of where they have been reported and Stuart will want to talk about, uh, the transparency of the information in the public domain. So I just want to clarify, we’ve used an existing use value plus approach in accordance with all guidance and the- what that approach- that approach forms was known as benchmark land value, that’s referred to in the table at 5.3.62. Uh, you have the applicant’s proposed benchmark land value and then the independent assessor’s benchmark land value. And what you do is you, uh, look at the residual land value and the appraisal, basically, given them the residual land value, show them the appraisal equals or is more than the benchmark- benchmark land value, the scheme is viable. Because what that means is that a hypothetical, uh, developer can purchase the site at a figure above the benchmark land value. And we see in appraisal it’s just shy of that benchmark land value. But basically, um, through our negotiations we accepted that the scheme had maximised, uh, it’s viability with the, um, agreed contributions.”
On the failure to make all of the viability appraisal information as background papers to the committee report;
“The first point raised is whether or not the defendant complied with its obligations under the 1972 Act in relation to the provision and listing of background papers. In short, I have no doubt that the defendant failed to comply with its obligations under section 100 D of the 1972 Act, not simply in relation to listing background papers but also in failing to provide them for inspection. It is clear from the evidence which has been set out above, including in particular the evidence of Mr Carney, that there was a significant quantity of documentation bearing upon the viability issues generated both before and especially after those documents that were published in relation to viability on the defendant’s website. It appears clear from Mr Carney’s evidence that, after the material from September 2018 which the defendant published, there was a significant volume of further technical work addressing ground rents and their impact on existing use value, the derivation of figures for the planning obligations and CIL and also the identification of a benchmark land value. Whilst not all of this material needed to be produced and listed it is simply inconceivable that none of this material would have qualified under section 100 D (5) of the 1972 Act. Clearly the contents of the committee report dealing with the viability exercise and its ultimate conclusions as to the affordable housing contribution which could legitimately be required, depended upon the contents of this material. There was, therefore, information which should have been listed and of which copies should have been provided for inspection.”
On the approach that should be taken to viability appraisal:
“In my view there are some clear principles set out in the Framework and the PPG to which it refers. Firstly, in accordance with the Framework viability assessments (where they are justified) should reflect the approach set out in PPG, and be made publicly available. Secondly, and in following the approach recommended in the Framework and the PPG, standardised inputs should be used including, for the purpose of land value, a benchmark land value based upon existing use value plus as described in the PPG. Thirdly, as set out in the PPG, the inputs and findings of a viability assessment should be set out “in a way that aids clear interpretation and interrogation by decision-makers” and be made publicly available save in exceptional circumstances. As the PPG makes clear, the preparation of a viability assessment “is not usually specific to that developer and thereby need not contain commercially sensitive data”. Even if some elements of the assessment are commercially sensitive, as the PPG points out, they can be aggregated in a published viability assessment so as to avoid disclosure of sensitive material.”
On whether elements of viability information should be treated as exempt from disclosure:
“As Mr Harwood pointed out in his submissions, there is an exception to the definition of exempt information contained in paragraph 10 of Schedule 12 to the 1972 Act where “the public interest in maintaining the exemption outweighs the public interest in disclosing the information.” In my judgment the existence of the policy contained in the Framework and the guidance contained in the PPG have an important bearing on the consideration of whether or not there is a public interest in disclosing the information contained in a viability assessment (even if it is properly to be characterised as commercially sensitive, bearing in mind the observations in the PPG about the extent to which information in such an assessment would be specific to a particular developer). It is clear from the material in the Framework and the PPG that save in exceptional circumstances the anticipation is that viability assessments, including their standardised inputs, will be placed in the public domain in order to ensure transparency, accountability and access to decision-taking for communities affected by development. The interests which placing viability assessments into the public domain serve are clearly public interests, which in my view support the contention that such assessments are not exempt information unless the exceptional circumstances spoken to by the PPG arise and solely an executive summary should be put in the public domain. It is unclear to me based on the material before the court how, if ever, the defendant ever considered the question of the public interest in relation to this exemption in the context of the relevant national planning policy. I am, therefore, unable to accept the submission advanced on behalf of the defendant that their failure to comply with section 100 D of the 1972 Act was a matter justified by the contention that the material withheld was exempt information. “
As to whether the viability information publicly available was comprehensive and coherent:
“In my view there are critical elements of the material in the public domain in relation to viability, set out in the documentation published on the defendant’s website and in the committee report, which are opaque and unexplained.”
If you deal regularly with viability appraisal you then need to read in full paragraphs 67 to 70 for an account by the judge of some of the deficiencies.
Drawing the threads together:
““Drawing the threads together, the material contained in the public domain at the time when the decision was taken by the planning committee to resolve to grant planning permission was inconsistent and opaque. It contained figures which differed in relation to, for instance, benchmark land value and the differences between the figures were not explained. No explanation was provided as to how the benchmark land value had been arrived at in terms of establishing an existing use value and identify a landowner’s premium as was asserted to have been case. Read against the background of the policy and guidance contained in the Framework and the PPG it was not possible to identify from the material in the public domain standardised inputs of the existing use value and landowner’s premium, and the purpose of the policy to secure transparency and accountability in the production of viability assessment was not served. In particular, it was plain from the material available at the time of the decision (in particular in terms of the material inconsistencies in the material produced in September 2018 and the differences from the material in the committee report) that there was substantial additional background material on which the committee report was based which was neither listed nor available for inspection in accordance with the requirements of the 1972 Act. In my view the principles identified in the case of Joicey by Cranston J at paragraph 47 are clearly on point, since the purpose of having a legal obligation to confer a right to know in relation to material underpinning a democratic decision-taking process is to enable members of the public to make well-informed observations on the substance of the decision. The failure to provide the background material underpinning the viability assessment in the present case, in circumstances where such material as was in the public domain was opaque and incoherent, was a clear and material legal error in the decision-taking process. In reality, in my judgment, the material with which the public was provided failed Mr Fraser-Urquhart’s own test of being adequate to enable the member of the public to make a sensible response to the consultation on the application.”
On the council’s attempt to prevent the direct lobbying of councillors
“… bearing in mind the importance of the decisions which the members of the planning committee are making, and the fact that they are acting in the context of a democratically representative role, the need for the communication of views and opinions between councillors and the public whom they represent must be afforded significant weight. In my view, it would be extremely difficult to justify as proportionate the discouragement, prohibition or prevention of communication between public and the councillors representing them which was otherwise in accordance with the law.”
“Receiving communications from objectors to an application for planning permission is an important feature of freedom of expression in connection with democratic decision-taking and in undertaking this aspect of local authority business. Whilst it may make perfect sense after the communication has been read for the member to pass it on to officers (so that for instance its existence can be logged in the file relating to the application, and any issues which need to be addressed in advice to members can be taken up in a committee report), the preclusion or prevention of members reading such material could not be justified as proportionate since it would serve no proper purpose in the decision-taking process. Any concern that members might receive misleading or illegitimate material will be resolved by the passing of that correspondence to officers, so that any such problem of that kind would be rectified. In my view there is an additional issue of fairness which arises if members of the planning committee are prevented from reading lobbying material from objectors and required to pass that information unread to their officers. The position that would leave members in would be that they would be reliant only on material from the applicant placed on the public record as part of the application or the information and opinions summarised and edited in the committee report. It is an important feature of the opportunity of an objector to a planning application to be able to present that objection and the points which they wish to make in the manner which they believe will make them most cogent and persuasive. Of course, it is a matter for the individual councillor in the discharge of his responsibilities to choose what evidence and opinion it is that he or she wishes to study in discharging the responsibility of determining a planning application, but the issue in the present case is having the access to all the material bearing upon the application in order to make that choice. If the choice is curtailed by an instruction not to read any lobbying material from members of the public that has a significant impact on the ability of a member of the public to make a case in relation to a proposed development making the points that they wish to make in the way in which they would wish to make them.”
“The standard correspondence clearly advised against members of the public writing directly to members of the committee; there was no warrant for that advice or discouragement and it impeded the freedom of expression of a member of the public who was entitled to write to a member of the planning committee setting out in his or her own terms the points they wish to be considered in respect of an application and expect that the member would have the opportunity to read it. It appears that Councillor Stops was under the impression that he was to resist being lobbied by either an applicant or member of the public, and Councillor Snell had apparently taken legal advice to the effect that he should refrain from reading any lobbying letter and forward it on to officers. Neither of these approaches reflects the defendant’s Code, nor does it reflect the entitlement to freedom of expression in accordance with the legal principles set out above.”
Concluding remarks
The case is a really helpful reminder to all of us of a few lessons:
Don’t get blinded by bad science. Good science is clear. Yes, viability appraisal includes some maths and you need to make sure that you understand the structure of the policy as to how viability appraisals should be conducted for the purposes in relation to the determination of planning applications. Subject to those points, if you don’t understand what is being said, you need to probe. A good viability appraisal does make sense and does tie in with policy and indeed common sense. And the process of arriving at an agreed viability appraisal should not be a behind the scenes negotiation. Memories of the R (Rainbird) v London Borough of Tower Hamlets (Deputy Judge John Howell QC, 28 March 2018) line of cases on daylight and sunlight – if the specialist input is not clear, and carried out in accordance with the relevant technical guidance such that the decision maker is not significantly misled, or if the detail that is needed for anyone to make sense of the position is held back, there is a plain risk of the resultant planning permission being struck down.
The approach to be taken to viability, both in terms of methodology and openness, has changed as a result of Government policy, and that is recognised by the courts.
Recognise that the value of having decisions taken at planning committee by elected councillors rests both in their being properly briefed by officers and also in their role as democratic representatives, not shielded from appropriate lobbying as if they were some jury.
However upsetting it may be for those whose decisions are overturned (and I recognise that there can be unwelcome consequences), without judicial review decision makers would pretty much be free to operate with impunity, to hell with the evidence (see also Westferry Printworks). That would be a farce.
The continuing to-do about Secretary of State’s admission of “apparent bias” in the Westferry Printworks case got me thinking about other apparent bias cases and the overlap with the right to a fair hearing – basically as an excuse to mention this week’s startling case from the Supreme Court, Serafin v Malkiewicz (Supreme Court, 3 June 2020). All the cases in this bias/unfair hearing area have a gossipy, “you need to have been there”, feel to them, and there are lessons in all of them for all decision-makers.
After all, for all the constant chatter about the rights and wrongs of our planning system, at its very root it needs to be fair, and seen as fair. Aside from a being fundamental principle of our legal system, the right to a fair hearing in front of an independent and impartial decision maker is also given force by way of Article 6 of the European Convention on Human Rights:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”
Serafin v Malkiewicz
Serafin v Malkiewicz is nothing to do with planning law. It concerns a libel action brought by a litigant in person who found himself against not so much the barrister on the other side but against the judge, Jay J (yes, really, non-lawyers, Jay J). He lost, badly. The Supreme Court judgment, by Lord Wilson attaches a schedule of extracts from the hearing in front of Jay J, which make truly excruciating reading – really and truly, an object lesson in how not to preside over any sort of hearing, let alone in relation to a litigant in person for whom English was not his first language. Imagine an inspector behaving in such a way.
The Supreme Court did not treat the issue in the case as one of potential apparent bias but as to whether the hearing had been fair. It referred to the distinction between the two principles, as described by Hildyard J in M&P Enterprises (London) Limited v Norfolk Square (Northern Square (Northern Section) Limited (High Court, 12 October 2018, namely that whereas “the fairness of a trial required objective judicial assessment, the appearance of bias fell to be judged through the eyes of the fair-minded and informed observer”.
“… it is far from clear that the observer would consider that the judge had given an appearance of bias. A painstaking reading of the full transcripts of the evidence given over four and a half days strongly suggests that, insofar as the judge evinced prejudice against the claimant, it was the product of his almost immediate conclusion that the claim was hopeless and that the hearing of it represented a disgraceful waste of judicial resources.”
“… when one considers the barrage of hostility towards the claimant’s case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven, with profound regret, to uphold the Court of Appeal’s conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair. Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented. It was ridiculous for the defendants to submit to us that, when placed in context, the judge’s interventions were “wholly justifiable”.”
The Court of Appeal had similarly concluded that the hearing had been unfair but had only concluded that part of the case be heard again. The Supreme Court went further:
“Lord Reed observed during the hearing that a judgment which results from an unfair trial is written in water. An appellate court cannot seize even on parts of it and erect legal conclusions upon them. That is why, whatever its precise meaning, it is so hard to understand the Court of Appeal’s unexplained order that all issues of liability had, in one way or another, been concluded. Had the Court of Appeal first addressed the issue of whether the trial had been unfair, it would have been more likely to recognise that the only proper order was for a retrial. It is no doubt highly desirable that, prior to any retrial, the parties should seek to limit the issues. It is possible that, in the light of what has transpired in the litigation to date, the claimant will agree to narrow the ambit of his claim and/or that the defendants will agree to narrow the ambit of their defences. But that is a matter for them. Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full retrial.”
Porter v Magill
The classic articulation of the apparent bias test is by Lord Hope in Porter v Magill (House of Lords, 13 December 2001): the “question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.
Porter v Magill was of course part of the Lady Porter/Westminster City Council “homes for votes” saga. An auditor, John Magill, had been appointed to consider whether “three councillors and three officers had, by wilful misconduct, jointly and severally caused a loss of approximately £31m to the council which they were liable to make good.”
One of the councillors’ grounds of appeal against Mr Magill’s findings of the auditor, John Magill, was on the basis of apparent bias evidenced by the manner in which, ahead of his full inquiry, he had announced his provisional findings:
“A televised announcement was arranged at which the auditor himself appeared and, although he said that his views were provisional, he expressed them in florid language and supported them by reference to the thoroughness of the investigation which he claimed to have carried out. There was a further feature of the event which should have had no place in the middle of a quasi-judicial inquiry. A stack of ring binders on the desk at which the auditor sat bearing the name of his firm for the benefit of the cameras was, ostensibly, under the protection of a security guard: unless it was being implied that the persons under investigation might wish to steal the documents, it is not clear what was the purpose of this posturing.”
The court did not accept that there was apparent bias. In the words of Lord Hope:
“I think that it is plain…that the auditor made an error of judgment when he decided to make his statement in public at a press conference. The main impression which this would have conveyed to the fair-minded observer was that the purpose of this exercise was to attract publicity to himself, and perhaps also to his firm. It was an exercise in self-promotion in which he should not have indulged. But it is quite another matter to conclude from this that there was a real possibility that he was biased…. The auditor’s conduct must be seen in the context of the investigation which he was carrying out, which had generated a great deal of public interest. A statement as to his progress would not have been inappropriate. His error was to make it at a press conference. This created the risk of unfair reporting, but there was nothing in the words he used to indicate that there was a real possibility that he was biased. He was at pains to point out to the press that his findings were provisional. There is no reason to doubt his word on this point, as his subsequent conduct demonstrates. I would hold, looking at the matter objectively, that a real possibility that he was biased has not been demonstrated.”
Broadview Energy
Turning to a case with greater similarities to the Westferry Printworks situation, in Broadview Energy Developments Limited v Secretary of State (Court of Appeal, 22 June 2016) the Court of Appeal deprecated informal lobbying attempts by MPs, in that case Andrea Leadsom MP’s attempts to stop a wind farm scheme, with a conversation in the Commons tea-room and numerous emails from her to the minister, including one referring to her “badgering [him] in the lobby”. Longmore LJ in that case indicated that he “would not endorse that part of the judge’s judgment [at first instance] in which he said that lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP with its implication that such lobbying was permissible even when the Minister is making a quasi-judicial decision in relation to a controversial planning application. MPs should not, with respect, be in any different position from other interested parties.”
The court’s deprecation fell short of determining that the decision was as a result unlawful. On the specific question of bias:
“Nor do I think it arguable that a well informed observed would consider that there was a real possibility of bias on the part of Mr Hopkins. The well-informed observer would know that it was the responsibility of the relevant Minister to make difficult decisions about controversial projects such as on-shore wind farms. He would also know that sometimes such decisions are, as this one was, finely balanced. He would not think that a Minister’s decision in favour of a vocal body of local objectors supported by their local MP showed any bias against the promoter of the wind farm project. He would accept that the Minister had to make a decision one way or the other and think that the parties should accept the outcome.
Nevertheless the accusation of bias made in this case shows how important the principle is that Ministers making planning decisions should not allow themselves to be lobbied by parties to the planning process or by local MPs. If they do allow it, accusations of bias are all too easily made however unjustified they may be once the proper principles exemplified by Magill v Porter [2002] 2 AC 357 are applied.”
Turning from the position of ministers to that of inspectors:
Turner
Turner v Secretary of State (Court of Appeal, 11 June 2015) was a case where an objector to the proposed redevelopment of the Shell Centre, on London’s south bank, argued that the inquiry inspector had been biased in the way that he had dealt with his case at the inquiry, alleging, as set out in the judgment, that the inspector had curtailed his evidence and submissions and had made adverse procedural rulings.
In determining whether the inspector had acted inappropriately, the Court set out the approach to be followed as follows:
“The notional fair-minded observer would appreciate a number of aspects of the present context: (i) an inspector’s role has a strong inquisitorial dimension, investigating matters in a way which will enable him to report helpfully to the relevant decision-maker, the Secretary of State; with that end in view, it is fair and appropriate for an inspector to seek to focus debate at an inquiry by making interventions to ensure that he is provided with material to assist him in his task; (ii) an inspector has to manage efficiently the conduct of an inquiry within a limited time-frame and involving a range of parties wishing to give evidence, make submissions and participate in cross-examination of witnesses; this may require robust case management in the interests of all participants; (iii) an inspector is entitled to expect, and may legitimately seek to encourage, focused questioning and short and focused answers in the course of cross-examination of witnesses; (iv) the inquiry process provides an inspector with relevant information through a range of media, including written opening statements, examination of plans and the making of detailed closing submissions, as well as through the evidence of witnesses (both by witness statement and orally in cross-examination), and an inspector is expected to have done a good deal of preparation before an inquiry commences and is entitled to seek to focus debate on particular issues in the form which is most likely to provide clarity about what is at stake and assistance for him in writing a report; and (v) as part of his inquiry-management function, and to encourage a focus on what is most likely to assist him in his reporting task, an inspector is entitled to give indications in the course of an inquiry of points which appear to him to be unrealistic or bad and to require concentration on what appear to him to be the real substantive points of contention or where continued debate will be most helpful to him. It is of course possible that an inspector may go too far in robust inquiry management or in closing down debate, so as to give an appearance of bias. But given the expectation that an inspector should be actively managing the inquiry process to ensure that it is efficient, effective and fair to all interested parties, it will be a rare case, as Woolf J observed, in which it is likely that robust inquiry management will be found to have done so.
Another part of the context is the guidance issued by the Planning Inspectorate in the form of “The Inspector’s Code of Conduct”. This sets out principles of conduct for inspectors. Amongst other things, they “should make their decisions and recommendations fairly and in the public interest”; “should not be fettered with pre-determined views and should not judge cases before they have considered the evidence”; “should not be influenced by irrelevant considerations or outside influences when making their decisions and recommendations”; “should avoid unnecessary delay in reaching their decisions and recommendations”; and “should treat each person with dignity and respect”, behaving “at all times with courtesy, patience and understanding, whilst at the same time ensuring that cases are conducted efficiently and effectively.” This guidance is designed to promote best practice. It does not in itself create the standard by which an appearance of bias is to be judged. For example, a lapse in courtesy or patience on the part of an inspector in the course of an inquiry will not in itself give an appearance of bias in the requisite sense. A good deal more than that would be required: cf HCA International Ltd v The Competition and Markets Authority [2015] EWCA Civ 492, in which even a serious element of actual unfairness of treatment of the appellant by the relevant public authority, which misled the appellant at one stage about an aspect of its inquiry, was found not to create an appearance of bias or pre-determination such as to prevent the same personnel in that authority from making a re-determination of matters in contention. (So that we are not misunderstood, and in fairness to the Inspector in the present case, we should add that on the limited evidence which is available we are not persuaded that he behaved discourteously to Mr Turner or anyone else at the inquiry).”
The court dismissed the appeal: “None of the matters relied on by Mr Turner, whether taken individually or together, indicate that there was a real possibility that the Inspector was biased. The Inspector acted properly and without giving any appearance of bias according to the relevant test in Porter v Magill.”
Satnam
Turner was applied in Satnam Millennium Limited v Secretary of State (Sir Duncan Ouseley, 8 October 2019). Satnam challenged the decision by the Secretary of State, on the recommendation of his inspector, to dismiss an appeal in relation a large development proposal in Warrington. Whilst the judge upheld the challenge on other grounds, he rejected a submission that the inspector had showed apparent bias in the way that he conducted the inquiry, as well as the site visit. Again the judgment is a good read as to the facts, particularly paragraphs 112 to 189. Extracts from the PINS manual for inspectors are at paragraphs 190 to 194 and the general legal principles are set out at paragraphs 195 to 206. The judge’s detailed conclusions, in which he rejects the various complaints, are at paragraphs 229 to 254. There are some interesting pointers as to the conduct of hearings and inquiries and as a cheerful point to end on…
Humour is not forbidden:
“The grumbling from Mr Griffiths about a resident giving her evidence in song, followed by the quick interchange over giving evidence in dance and northern humour, rather illustrated my concern about where he was pitching his concern. This was but a moment of light heartedness, essentially initiated by the witness, and briefly responded to by the Inspector. Some Inspectors might have kept silent; but there is nothing in this at all. Not all judges or counsel are humourless automatons either. Although it would avoid some problems if Inspectors were, it could create others at an Inquiry with feelings running high and large numbers of the public attending. This was all very much part of a legitimate judgment about how to run a difficult Inquiry in those venues, with the facilities, and participants there were.”
“I accept that there would have been an impression of familiarity with individuals to whom [the inspector] had spoken on a daily basis, but that does not contrast with how he spoke to the other participants; they were not ignored, their greetings, if any, dismissed. “Banter” is very much in the eye and ear of the beholder. I am not prepared to regard any of it as indicative of possible bias.”
Reading these various cases again, and thinking again about Westferry Printworks, doesn’t so much of this come down to common sense and the facts of each situation rather than the application of any difficult legal concepts? The courts may be surprisingly reluctant at times to intervene (which makes so telling the Serafin ruling, as well as the decision of the government legal department not even to seek to contest Westferry) but decision makers should know what’s not right and, equally importantly, what doesn’t look right.
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.
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?
SIMONICITY 