Let’s be clear – the Government has had ample time to bring forward emergency primary legislation to extend that regime if it considered that the issue was sufficiently important. But it doesn’t.
Instead, even in the face of litigation from local government bodies which is heading to a High Court hearing next month, MHCLG minister Luke Hall wrote to local authority leaders on 25 March 2021 to confirm that the power will not be extended.
The suggestions in the letter appear to be somewhat of a sticking plaster, compared to the proven solution of allowing meetings to be remotely conducted; appear to be pushing at the bounds of what is advised to be prudent in the Government’s roadmap out of lockdown, and leave us all without any Plan B.
To be clear, what we are talking about is not whether meetings should be able to be watched online – the letter encourages that in any event “to minimise the need for the public to attend meetings physically until at least 21 June, at which point it is anticipated that all restrictions on indoor gatherings will have been lifted in line with the Roadmap”.
Rather, the issue is whether participants in the meeting, whether councillors or other parties, need to be in physical attendance in order for the meeting to be lawfully conducted.
Meetings between 7 May until 17 May (or later)
If we go by the roadmap, when 7 May comes life will still be relatively restricted even assuming that by then we will have moved to step 2 of the roadmap. Whilst public buildings will be open again, people will still not be able to gather in groups, and wherever possible people will still be advised to work from home. Further opening up via step 3 will not be until 17 May or later.
The letter advises that during this period “options would include use of your existing powers to delegate decision making to key individuals such as the Head of Paid Service, as these could be used these to minimise the number of meetings you need to hold if deemed necessary. Additionally, some of you will be able to rely on single member decision making without the need for cabinet meetings if your constitution allows.”
As for annual meetings, for authorities without elections on 6 May, the letter suggests that these be brought forward to be held before 6 May (so they can still be held remotely). Otherwise, given the need to hold the meeting within 21 days of the election, the meeting can (just about) be held after 17 May (assuming that date doesn’t slip).
What does this mean for planning committee meetings? Well, even for authorities without elections, meetings between 7 and 17 May would now appear unlikely. For authorities with elections the process of selecting committee meetings at the annual meeting is going to be elongated, with committees not formed until after 17 May.
Meetings from 17 May (or later) to 21 June (or later)
The letter states:
“The Government’s roadmap proposes that organised indoor meetings (e.g. performances, conferences) are permitted from 17 May, subject to Covid secure guidelines and capacity rules.”
A few problems with this…
⁃ The roadmap actually says “no earlier than” 17 May. If we’ve learned anything from this pandemic it is that covid doesn’t respect deadlines!
⁃ What about individual councillors and other participants who may not by then have been vaccinated and therefore reluctant to attend in person (after all, the guidance as to working from home will apparently not be reviewed until some time during this step 3) or indeed may be shielding?
There is a real risk that authorities will be reluctant during this period to hold potentially controversial meetings which may attract significant numbers of members of the public. Indeed many authority buildings do not lend themselves well to such events on a socially distanced basis.
From the Local Government Association’s statement (25 March 2021):
“Councils are already actively considering the options the minister has suggested, including looking at alternative larger meeting venues at significant extra cost. The proposal to delegate significant decisions to officers is likely to be viewed as undermining democratic accountability due to the fact that such decisions are not subject to direct member involvement. Given the circumstances authorities find themselves in due to the imminent loss of virtual meeting provision, they now face unpalatable decisions, which include restricting member attendance and a reduction in members roles in decision making, whilst attempting to keep the machinery of local government moving. LLG & ADSO remain fully committed to presenting our case at the High Court Hearing timetabled to be heard before the end of April 2021.”
More generally, why let go of the flexibility that the current legal regime gives to local authorities, not just for public health reasons (although this is important, it would be foolhardy to think that from 21 June there will be no further outbreaks or no longer any need for caution) but equally for reasons of efficiency and inclusion?
The Government recognises the potential case for virtual meetings but instead kicks the can down the road by “launching a call for evidence on the use of current arrangements and to gather views on the question of whether there should be permanent arrangements and if so, for which meetings. There are many issues to consider and opinions on the detailed questions vary considerably. This will establish a clearer evidence base of opinion and enable all the areas to be considered before further decisions are made. The Government will consider all responses carefully before deciding to how to proceed on this issue.”
“A church house, gin house, a school house, outhouse”
To what extent were Ike & Tina Turner also referring to the curtilage of any of those buildings?
“There are some words or expressions which are like an elephant; its essence is difficult to put into words, but you know it when you see it. “Curtilage” is a word of that nature.” – Andrews LJ in this week’s free text book from the courts: Blackbushe Airport Limited v Hampshire County Council (Court of Appeal, 18 March 2021).
The c word appears regularly in legislation, without definition. The Court of Appeal has done us all rather a service by gathering together the previous case law and attempting to arrive at common principles.
For instance, look at section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990: the definition of “listed building” includes “any object or structure within the curtilage of [a listed] building which, although not fixed to the building, forms part of the land and has done so since before lst July 1948”.
And it even appears in the NPPF: the definition of “previously developed land” includes “land which is or was occupied by a permanent structure, including the curtilage of the developed land…”
But what on earth does it mean?
In the Blackbushe case the question arose in relation to the operation of the Commons Act. Land can be deregistered as a village green if it can be shown to be “within the curtilage of a building”. The question was, as the airport owner claimed, 115 acres forming the operational part of Blackbushe Airport, could be deregistered on the basis that it is in the curtilage of “a two-storey terminal building, with a footprint of about 360 m2 and an overall floor area of about 760 m2, which serves as the airport’s operational hub.”
The inquiry inspector had accepted the airport’s argument but his decision was quashed by Holgate J. The Court of Appeal agreed with Holgate J:
“If what is meant by “the curtilage of a building” is understood correctly, and all relevant factors are taken into account when determining whether the statutory requirements were satisfied in this case, the answer is no. This extensive area of operational airfield cannot properly be described as falling within the curtilage of the relatively small terminal building.
That common sense conclusion flows inexorably from the correct interpretation of the relevant provisions of the 2006 Act set out above, and their application to the facts. It is also consistent with the approach taken in the authorities in which the question of what falls “within the curtilage of a building” has been considered in other contexts, although none of them was directly concerned with this statute.
In deciding that the statutory criteria were met, the Inspector applied the wrong test by asking himself whether the land and building together “formed an integral part of the same unit” because he found that there was “functional equivalence” between them. That error is perhaps best demonstrated in paragraph 83 of his decision letter, where he described the operational area as “part and parcel with the building and an integral part of the same unit” instead of asking whether the land should be treated as if it were “part and parcel of the building”. The difference is critical, and it led to the Inspector addressing the wrong question, namely, whether the land and building together fell within the curtilage of the airport, rather than whether the land fell within the curtilage of the building.”
“Since it is the building which is to be treated as wrongly registered, the inference can be drawn that the relationship of the land to the building must be sufficiently proximate that a reference to that building – in this case, the terminal building – could be treated, without artifice, as including the land as well. So, for example, a reference to “Keeper’s Cottage” would naturally be taken to include a reference to the cottage garden. A reference to the terminal building at Blackbushe Airport would not be naturally understood as referring to the whole airport, or to 115 acres of operational land of which the terminal building occupies a very small part.
Looking at the matter from another perspective, in order to achieve the deregistration of the terminal building which is deemed by Parliament to have been wrongly registered as common land, whilst it would be reasonable and appropriate to include some of the surrounding land that might be referred to figuratively as “part and parcel of” the building, or “belonging to” the building, it is plainly unnecessary to deregister the whole of the rest of the operational area of the airport.”
“…just as one can tell immediately that a giraffe is not an elephant, it is probably far easier to recognise that something is not within the curtilage of a building than it is to say how far the curtilage extends. The present case is a good illustration.”
“As Holgate J recognised in his judgment at [73] to [76], although “curtilage” is not a term of art, but is to be given its ordinary and natural meaning, its meaning is not completely provided by the dictionary. The concept has its origins in a small piece of land attached to a dwelling-house. Holgate J quoted the Oxford English Dictionary (“OED”) definition:
“A small court, yard, garth or piece of ground attached to a dwelling-house, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwelling-house and its out-buildings.”
That definition begs the question of what the law would regard as “forming one enclosure” with a dwelling-house, or what is the ambit of the “area” in question.
In any event, as the Judge pointed out, in the 2006 Act (as in other legislation in which the expression is used) the “building” whose curtilage is being considered does not have to be a dwelling-house. Moreover, as will be seen, although the size of the land will be a relevant consideration, the extent of the curtilage of a building may vary with the nature and size of the building. To refer to the area as “small” (or conversely “large”) is not particularly helpful in a context where size is relative. What falls within the curtilage of a manor house, or a large industrial mill, or a factory, may not be the same as what falls within the curtilage of a dwelling house. What falls within the curtilage of a dwelling-house may depend on the size and configuration of the dwelling-house. Even so, proportionality, whilst relevant, may not be definitive; a small cottage will sometimes have a large garden, whereas a large townhouse may have a tiny terrace.”
“… the test is not whether the terminal building could function without an operational airport, nor whether the Application Land was necessary for the functioning of the airport. Nor is the test whether the Application Land and the terminal building together form one part of an operational unit or whether they fall within a single enclosure. The question whether, by reason of the association between them, the law would treat them as if they formed one parcel, or as an integral whole, depends on the application of the “part and parcel” test to the facts of the particular case.”
“Holgate J was right to hold that the phrase “the curtilage of a building” in the 2006 Act requires the land in question to form part and parcel of the building to which it is related. The correct question is whether the land falls within the curtilage of the building, and not whether the land together with the building fall within, or comprise, a unit devoted to the same or equivalent function or purpose, nor whether the building forms part and parcel of some unit which includes that land. He therefore correctly concluded that the Inspector’s decision was fatally flawed by material errors of law.”
In a supporting judgment Nugee LJ added some useful guidance:
“If we want to know what a word’s ordinary meaning is, it is to my mind more helpful to ask how it is used in practice. This is after all what we do with everyday words. We do not know what the word house means because we have looked it up in the dictionary; we know what a house is because we have experience of how the word house is used. In the same way if we want to know what curtilage means, it is helpful to look at examples of how it has been used in practice. Such an exercise may not indicate the outer edges of its meaning with precision, but it does help to illustrate its central meaning.
Fortunately the extensive array of authorities cited to us on this appeal enables us to do this. We find for example that in the case of modest houses, the curtilage would not on the face of it extend to the whole of 10 acres of pasture land let with a cottage (Trim v Sturminster RDC [1938] 2 KB 508); that a field used for keeping cows was not part of a house (Pulling v London, Chatham and Dover Railway Co (1864) 3 De G J & S 661); and that paddocks have been held not to be part of the curtilage of houses in both Methuen-Campbell and Burford v Secretary of State for Communities and Local Government [2017] EWHC 1493 (Admin). On the other hand the curtilage does include a wall enclosing a recently expanded part of the garden (Sumption v Greenwich LBC [2007] EWHC 2776 (Admin)).
In grander houses, the curtilage would extend to “the house, the stables and other outbuildings, the gardens and the rough grass up to the ha-ha if there was one”, but not to the 100 acre park surrounding a mansion house (Dyer at 358F-G per Nourse LJ); thus it would include a wall forming part of a ha-ha (Watson-Smyth v Secretary of State for the Environment (1992) 64 P&CR 156); and a stable block even some distance away from the main house (Skerritts); but not 64½ acres of a park, meadow land and pasture land (Buck d. Whalley v Nurton (1797) 1 B & P 53); nor a 650m long fence along the driveway (Lowe v First Secretary of State [2003] EWHC 537 (Admin)). Admittedly a devise of a mansion-house to the testator’s wife was held to include three meadows let for grazing in Leach v Leach [1878] WN 79, but in Methuen-Campbell at 543F Buckley LJ said that he did not think, unless there was some special context, that this very liberal construction adopted by Malins V-C was good law.
When one moves away from dwelling-houses we find that the purpose-built residence of a medical superintendent within the boundary of a lunatic asylum was within the curtilage of the asylum (Jepson v Gribble [1876] 1 Ex D 151); but firemen’s houses outside the boundaries of the yard to a fire station were not within the curtilage of the fire station (Barwick). A courtyard and access to a warehouse and mill was part of the curtilage (Caledonian Railway Co. v Turcan [1898] AC 256); as was a piece of ground in front of a public house used for access (Marson v London, Chatham and Dover Railway Co (1868) LR 6 Eq 101); and two small open spaces in an oil depot (Clymo); but not a large hardstanding massively in excess of what was necessary for an undertaking in a modest building (Challenge Fencing). To these can be added Calderdale, which concerned a terraced row of houses physically linked to a mill by a bridge and within its boundaries, and which is extensively considered by Andrews LJ above.
A survey such as this is neither scientific nor comprehensive. Nor does it give any indication why in any particular case the Court decided as it did: that requires a consideration of the explanations given by the judge(s) in any particular case. Nor does it take account of the different statutory contexts in which the question may arise. Nor is it any substitute for a careful analysis of the question when it does arise. But that does not mean that it has no value. To my mind it gives a good idea of the concept of what it is for a piece of land to be within the curtilage of a building; it illustrates the natural and ordinary meaning of the word. I will not attempt to define it, but these are all examples of bits of land that go with a building, of “relatively limited” extent (Skerritts), that are “intimately associated” with it (Methuen-Campbell)”
What is so interesting is that whilst the Court of Appeal upheld Holgate J’s first instance judgment, they differed from him in one important respect – he had accepted that “curtilage” could have a broader and more expansive definition for the purposes of listed buildings legislation:
“For the reasons I have already given, I do not consider that the use of “curtilage” in the extended definition of “listed building” is analogous to its use in the de-registration and non-registration provisions in schedule 2 to the 2006 Act. The 2006 Act takes a balanced approach to the protection of, on the one hand, rights of common and public access to commons and town or village greens and, on the other, the interests of the owners of buildings on such land. There is no justification for adopting for the 2006 Act the “broad approach” to defining curtilage which the court expressly employed in Calderdale in order to promote the efficacy of listed building control.”
Contrast with Andrews LJ: “I do not accept that the test in a listed building case is any different…”
The, previously understood, extended definition with regard to listed buildings is reflected in current Historic England guidance – see for example this example they set out:
Surely this approach needs to be viewed with caution in the light of the Court of Appeal’s judgment: an elephant is or is not an elephant, curtilage is or is not curtilage.
Sometimes I think, why buy a legal text book when you can read it in a court judgment? Lindblom LJ has provided some useful practical guidance, in City & Country Bramshill Limited v Secretary of State (Court of Appeal, 9 March 2021), on how to go about the assessment, required by the NPPF, as to whether development proposals would be likely to cause harm to listed buildings and other heritage assets.
(The case also considers the interpretation of policies in the NPPF against the development of “isolated homes in the countryside” but I’m limiting this blog post to heritage aspects.)
The case arose out of a decision letter dated 31 January 2019 by inspector Vicki Hirst into no fewer than 33 appeals against refusals of planning permission and enforcement notices issued by the second respondent, Hart District Council, relating to development at Bramshill Park in Hampshire. The third and fourth respondents to the proceedings, Historic England and the National Trust, were objectors. The inquiry had sat for 26 days.
From Lindblom LJ’s judgment:
“The site, which extends to about 106 hectares, lies between the villages of Hazeley and Eversley. It was previously used as a national and international police training college. On it stands a grade I listed Jacobean mansion and various other buildings. It also contains a grade I registered park and garden. The proposed development included the conversion of the mansion to 16 apartments and the adjoining stable block to five (appeal 1), or its conversion to a single dwelling (appeal 2), or to class B1 office space (appeal 3); the construction of 235 houses in place of some of the existing buildings (appeal 4), 14 more to the south-west (appeal 5), and nine to the north of an existing lake (appeal 6); the use of 51 residential units – once occupied by staff employed at the training college – as separate dwellings (appeal 7), retaining those against which the council had taken enforcement action alleging a material change of use without planning permission (appeals 8 to 33).
The inspector held a long inquiry into the appeals, which ended in February 2018. In her decision letter, dated 31 January 2019, she allowed appeals 2 and 3, granting planning permission for those proposals. She also allowed appeals 15 and 17 to 33, quashing the enforcement notices in those appeals. She dismissed appeals 1, 4 to 14 and 16. In a separate decision letter dated 14 March 2019 she dismissed City & Country Bramshill’s application for costs against the council. City & Country Bramshill challenged her decisions on appeals 4 to 14 and 16, and on the application for costs. Waksman J. upheld the challenges to the decisions on appeals 7 to 14 and 16. He rejected those to the decisions on appeals 4 to 6 and on costs. The appeal before us is against that part of his order. Permission to appeal was granted by Lewison L.J. on 28 February 2020.”
The key dispute before the court in relation to heritage policy was as follows:
“Historic England and the National Trust provided their evidence on the basis that paragraphs 195 and 196 of the [NPPF] would always be engaged where any element of harm was identified. The appellant held that this was not the correct approach […]. The appellant’s case is that an “internal heritage balance” should be carried out where elements of heritage harm and heritage benefit are first weighed to establish whether there is any overall heritage harm to the proposal. Paragraphs 195 and 196 would only be engaged where there is residual heritage harm. This should then be weighed against the public benefits of the scheme.”
I’m now handing the microphone over to my Town Legal colleague, Victoria McKeegan – the rest of this post is largely hers.
So, the key matter was whether, prior to engaging paragraphs 195 and 196 of the NPPF (which apply to cases where a development proposal will lead to substantial / less than substantial harm), an ‘internal heritage balance’ should be carried out where elements of heritage harm and benefit are first weighed up to establish whether there is any overall heritage harm. The appellant argued that this was the case and, as such, that these paragraphs are only engaged where there is residual heritage harm, this then being weighed against the public benefits of the scheme. Put another way, only if “overall harm” (i.e. net harm) emerges from the weighing of “heritage harms” against “heritage benefits” must the “other public benefits” of the development be weighed against that “overall harm“.
On this point, the Court held as follows:
Like the judge, I cannot accept those submissions. It is not stipulated, or implied, in section 66(1), or suggested in the relevant case law, that a decision-maker must undertake a “net” or “internal” balance of heritage-related benefits and harm as a self-contained exercise preceding a wider assessment of the kind envisaged in paragraph 196 of the NPPF. Nor is there any justification for reading such a requirement into NPPF policy. The separate balancing exercise for which Mr Strachan contended may have been an exercise the inspector could have chosen to undertake when performing the section 66(1) duty and complying with the corresponding policies of the NPPF, but it was not required as a matter of law. And I cannot see how this approach could ever make a difference to the ultimate outcome of an application or appeal.
There is also some useful commentary regarding the s66(1) duty and the concepts of ‘harm’ in the NPPF, which I set out below:
1. Matters of weight:
• Section 66(1) duty
Section 66 does not state how the decision-maker must go about discharging the duty to “have special regard to the desirability of preserving the building or its setting …”. The courts have considered the nature of that duty and the parallel duty for conservation areas in section 72 of the Listed Buildings Act, and the concept of giving “considerable importance and weight” to any finding of likely harm to a listed building and its setting. They have not prescribed any single, correct approach to the balancing of such harm against any likely benefits – or other material considerations weighing in favour of a proposal. But in Jones v Mordue this court accepted that if the approach in paragraphs 193 to 196 of the NPPF (as published in 2018 and 2019) is followed, the section 66(1) duty is likely to be properly performed.
• NPPF paragraph 193
The concept in paragraph 193 – that “great weight” should be given to the “conservation” of the “designated heritage asset”, and that “the more important the asset the greater the weight should be” – does not predetermine the appropriate amount of weight to be given to the “conservation” of the heritage asset in a particular case. Resolving that question is left to the decision-maker as a matter of planning judgment on the facts of the case, bearing in mind the relevant case law, including Sullivan L.J.’s observations about “considerable importance and weight” in Barnwell Manor.
2. The concepts of “substantial harm” and “less than substantial harm”
The same can be said of the policies in paragraphs 195 and 196 of the NPPF, which refer to the concepts of “substantial harm” and “less than substantial harm” to a “designated heritage asset”. What amounts to “substantial harm” or “less than substantial harm” in a particular case will always depend on the circumstances. Whether there will be such “harm”, and, if so, whether it will be “substantial”, are matters of fact and planning judgment. The NPPF does not direct the decision-maker to adopt any specific approach to identifying “harm” or gauging its extent. It distinguishes the approach required in cases of “substantial harm … (or total loss of significance …)” (paragraph 195) from that required in cases of “less than substantial harm” (paragraph 196). But the decision-maker is not told how to assess what the “harm” to the heritage asset will be, or what should be taken into account in that exercise or excluded. The policy is in general terms. There is no one approach, suitable for every proposal affecting a “designated heritage asset” or its setting.
3. Identifying benefits
Identifying and assessing any “benefits” to weigh against harm to a heritage asset are also matters for the decision-maker. Paragraph 195 refers to the concept of “substantial public benefits” outweighing “substantial harm” or “total loss of significance”; paragraph 196 to “less than substantial harm” being weighed against “the public benefits of the proposal”. What amounts to a relevant “public benefit” in a particular case is, again, a matter for the decision-maker. So is the weight to be given to such benefits as material considerations. The Government did not enlarge on this concept in the NPPF, though in paragraph 196 it gave the example of a proposal “securing [the heritage asset’s] optimum viable use”.
Plainly, however, a potentially relevant “public benefit”, which either on its own or with others might be decisive in the balance, can include a heritage-related benefit as well as one that has nothing to do with heritage. As the inspector said (in paragraph 127 of the decision letter), the relevant guidance in the PPG applies a broad meaning to the concept of “public benefits”. While these “may include heritage benefits”, the guidance confirms that “all types of public benefits can be taken together and weighed against harm”.
Cases will vary. There might, for example, be benefits to the heritage asset itself exceeding any adverse effects to it, so that there would be no “harm” of the kind envisaged in paragraph 196. There might be benefits to other heritage assets that would not prevent “harm” being sustained by the heritage asset in question but are enough to outweigh that “harm” when the balance is struck. And there might be planning benefits of a quite different kind, which have no implications for any heritage asset but are weighty enough to outbalance the harm to the heritage asset the decision-maker is dealing with.
4. Interaction with the overall planning balance and statutory duties
One must not forget that the balancing exercise under the policies in paragraphs 195 and 196 of the NPPF is not the whole decision-making process on an application for planning permission, only part of it. The whole process must be carried out within the parameters set by the statutory scheme, including those under section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) and section 70(2) of the 1990 Act, as well as the duty under section 66(1) of the Listed Buildings Act. In that broader balancing exercise, every element of harm and benefit must be given due weight by the decision-maker as material considerations, and the decision made in accordance with the development plan unless material considerations indicate otherwise (see City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447). Within that statutory process, and under NPPF policy, the decision-maker must adopt a sensible approach to assessing likely harm to a listed building and weighing that harm against benefits.”
Thanks Victoria. Me again now. With the retirement of Lord Carnwath from the Supreme Court, Lindblom LJ is now our most senior “planning” judge. It is good to see him underlining yet again that it is for the decision maker to take a rational course through the various NPPF policy tests, based on judgment and circumstances – surely we all now know that, although great care is required to take into account what the individual paragraphs in the framework require (for what can go wrong see e.g. my 12 December 2020 blog post Where’s The Harm In That: Misreporting Heritage Effects), this should not be an overly technocratic or legalistic exercise with only one correct methodology?
Surely planning becomes a democratic irrelevance when the plan making process is slower than the electoral cycle? That’s pretty much the position in London. After all, Sadiq Khan wouldn’t have managed it if he hadn’t been gifted a further year in post by virtue of the postponement of the May 2020 elections.
Election: 7 May 2016. First consultation document: October 2016. Adopted plan 2 March 2021.
But it doesn’t have to be that way. In fact, it shouldn’t be this way. The plan “must deal only with matters which are of strategic importance to Greater London” (section 334(5), Greater London Authority Act 1999).
My 23 April 2017 blog post Make No Little Plans: The London Plan heralded the imminent publication of initial non-statutory consultation in relation to the new London Plan. The hope at that stage was to have an adopted plan in place by Autumn 2019. I referred to the 400 pages or so of the then current plan and expressed the hope that its replacement would be shorter. Hmm, not so.
One of the issues with this process has certainly been of the Mayor’s making – the sheer bloated nature of the plan, with its excessive layers of detail. What can be done to make sure that this never happens again?
But the other issue has not entirely been of the Mayor’s making. For the whole of his period in office he has faced opposition from Government, which has been placing pressure on him to increase planned housing numbers well beyond the already ambitious and probably unachievable numbers that he has been planning for. See for instance the previous Secretary of State’s 27 July 2018 letter and Robert Jenrick’s 13 March 2020 letter directing that a series of amendments be made to the draft plan.
“I had expected you to set the framework for a step change in housing delivery, paving the way for further increases given the next London Plan will need to assess housing need by using the Local Housing Need methodology. This has not materialised, as you have not taken the tough choices necessary to bring enough land into the system to build the homes needed.
Having considered your Plan at length my conclusion is that the necessary decisions to bring more land into the planning system have not been taken, the added complexity will reduce appetite for development further and slow down the system, and throughout the Plan you have directly contradicted national policy. As you know, by law you must have regard to the need for your strategies to be consistent with national policies.
For these reasons I am left with no choice but to exercise my powers to direct changes.
Your Plan must be brought to the minimum level I would expect to deliver the homes to start serving Londoners in the way they deserve. However, this must be the baseline and given this, I ask that you start considering the next London Plan immediately and how this will meet the higher level and broader housing needs of London.”
Then most recently, only after the Mayor had chased on 9 December 2020 for a response from Government to his April 2020 proposed amendments to address those March 2020 directions, the Secretary of State wrote again on 10 December 2020 with further directions.
But, to accentuate the positive, we now have an adopted new London Plan (542 pages of it).
This is a good Lichfields blog post on it. I did also like this Tom Pemberton post that summarised some of its implications in seven slides.
The whole process will now have to start again, as soon as we are past the 6 May elections, given the Government’s expectation of an immediate review to take into account the current NPPF and the housing numbers deriving from the revised standard method (including indeed its additional 35% figure for London and other major towns and cities). The new numbers are truly challenging/unrealistic (93,500 per annum as against the 52,000 figure in the new plan and annual delivery of less than 37,000).
What a political dilemma for the next Mayor to face – to broker some sort of solution with Government, boroughs, communities, authorities surrounding London and, for so long as there are going to be the range of onerous requirements that are set out in the new plan, developers and funders. On top of all the other challenges post-pandemic, post- Brexit and in the midst of a climate emergency.
And yet numerous candidates have thrown their hats in the ring for 6 May 2021 and we haven’t yet reached the 30 March deadline for delivery of nomination papers (fancy a go?).
I’m chairing a Planning Futures hustings event at 2pm on 9 March 2021, where we will have a number of the candidates or their representatives. It will focus on planning/housing/built environment policies. The event is free so do register and join me.
In preparation I did a little googling to see what the main candidates might be saying that might give some hope that the scale of the challenges ahead are publicly acknowledged.
⁃ Sadiq Khan’s campaign was launched on 4 March, focusing on listing the achievements of his first term rather than setting out any significant new direction or pledges.
⁃ Conservative candidate Shaun Bailey’s campaign website – 100,000 shared ownership homes to be sold at £100,000 each – a London Infrastructure Fund to fund long-term transport projects.
⁃ Green Party candidate Sian Berry’s campaign website – would set up “a People’s Land Commission to find small sites for new homes, green spaces and community support”. “In addition to using existing powers including compulsory purchase orders, I will also continue to lobby central Government for a devolved or national “community right to buy” which will create new rights for local community groups to buy any land or property that is neglected, empty and needed for community uses”.
Liberal Democrat party candidate Luisa Porritt’s campaign includes “homes in the heart of the city”, “a green roadmap” and “reinvent the high street”.
⁃ Women’s Equality Party candidate Mandu Reid: “Stand with us to make sure no woman is turned away from refuge, to close the pay gap in a generation, to balance work and family life for everyone, and to make London the first gender equal city in the world.”
⁃ UKIP candidate Peter Gammons will “will focus on new housing in every borough, holding developers accountable for providing affordable housing and prioritising Londoners.” He has apparently written a book, “London – a road map for recovery”, although I couldn’t find it on Amazon.
I think we need to get beyond these platitudes, and that is what I shall attempt to do on Tuesday….
SIMONICITY 