Stonehenge Road Tunnel Consent Quashed

This is a month in which we have seen the Government announce that it would be reviewing its National Networks (i.e. roads and rail) National Policy Statement to take account of net zero carbon commitments and in the meantime fend off a challenge to its current road investment strategy (RIS2): R (Transport Action Network Limited v Secretary of State for Transport (Holgate J, 26 July 2021).

This has also been a month in which we have seen UNESCO remove Liverpool from its world heritage list.

Now at the end of the month, another significant ruling from Holgate J in R (Save Stonehenge World Heritage Site Limited) v Secretary of State (Holgate J, 30 July 2021), concerning both the National Networks NPS and a world heritage site.

The court has quashed the decision of the Secretary of State (“SST”), against his examining authority’s recommendations, to “grant a development consent order (“DCO”) […] for the construction of a new route 13 km long for the A303 between Amesbury and Berwick Down which would replace the existing surface route. The new road would have a dual instead of a single carriageway and would run in a tunnel 3.3 km long through the Stonehenge part of the Stonehenge, Avebury and Associated Sites World Heritage Site (“WHS”)“. I had written about the SST’s decision to grant the DCO in my 14 November 2020 blog post, Minister Knows Best (It is interesting to look back – all three of the DCO decisions I mentioned in that post have now been quashed, the others being Norfolk Vanguard Windfarm (also by Holgate J, in R (Pearce) v Secretary of State for Business, Energy and Industrial Strategy (18 February 2021) and also in February 2021 the quashing by consent order of the Manston Airport DCO).

The SST’s decision to grant the A303 (Amesbury to Berwick Down) Development Consent Order 2020, to give it its formal title, was challenged on five grounds, some of those with sub-grounds. They were, in full:

Ground 1

(i) The SST failed to apply paragraph 5.124 of the NPSNN (see [43] above) to 11 non-designated heritage assets;

(ii) The SST failed to consider the effect of the proposal on 14 scheduled ancient monuments (i.e. designated heritage assets);

(iii) The SST failed to consider the effect of the proposal on the setting of the heritage assets, as opposed to its effect on the OUV of the WHS as a whole;

(iv) The SST’s judgment that the proposal would cause less than substantial harm improperly involved the application of a “blanket discount” to the harm caused to individual heritage assets.

Ground 2– lack of evidence to support disagreement with the Panel

The claimant submits that the SST disagreed with the Panel on the substantial harm issue without there being any proper evidential basis for doing so. Mr. Wolfe QC advances this ground by reference to the SST’s acceptance of the views of IP2 in DL 34, 43, 50 and 80. He submitted that IP2’s representations did not provide the SST with evidence to support his disagreement with the Panel on “substantial harm” in two respects. First, he said that HE only addressed the spatial aspect of the third main issue and did not address harm to individual assets or groups of assets. Second, he submitted that SST had misunderstood IP2’s position: it had never said that the harm would be less than substantial.”

Ground 3 – double-counting of heritage benefits

The claimant submits that the SST not only took into account the heritage benefits of the scheme as part of the overall balancing exercise required by para. 5.134 of the NPSNN, but also took those matters into account as tempering the level of heritage disbenefit. It is said that this was impermissible double-counting because those heritage benefits were placed in both scales of the same balance.”

Ground 4 – whether the proposal breached the World Heritage Convention

“The claimant contends that the SST’s acceptance that the scheme would cause harm, that is less than substantial harm, to the WHS involved a breach of articles 4 and 5 of the Convention and therefore the SST erred in law in concluding that s.104(4) of PA 2008 was not engaged. It was engaged and so, it is submitted, the presumption in s.104(3) should not have been applied in the decision letter.”

Ground 5

(i) The SST failed to take into account any conflict with Core Policies 58 and 59 of the Wiltshire Plan and with policy 1d of the WHS Management Plan;

(ii) The SST failed to take into account the effect of his conclusion that the proposal would cause less than substantial harm to heritage assets on the business case advanced for the scheme;

(iii) The SST failed to consider alternative schemes in accordance with the World Heritage Convention and common law.

The 39 Essex chambers press statement (this being a case well represented by barristers from that chambers: five of the seven appearing!) summarises the outcome as follows:

The claim was allowed on two grounds:

· Part of ground 1(iv): that the Minister did not receive a precis of, or any briefing on, heritage impacts where the Examining Authority agreed with Highways England but did not summarise in their report. He therefore could not form any conclusion upon those heritage assets, whether in agreement or disagreement;

· Ground 5(iii): The Examining Authority and the Minister limited their concluded consideration of alternatives to whether an options appraisal had been carried out and whether there was information on alternatives. However, they did not go on to consider the relative merits of the scheme and alternatives, in particular extending the proposed tunnel farther westwards. Mr Justice Holgate considered it was irrational not to have drawn conclusions in relation alternatives, particularly given that third parties had raised them and the Examining Authority had addressed the information about them in its Report. The Judge held that the circumstances were wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the Minister was required to assess and draw conclusions upon.

The Court rejected other grounds of challenge holding:

· There was no failure to consider whether certain archaeological sites were of national importance;

· The effects on certain individual scheduled monuments had been considered;

· The examining authority and the Minister had considered the effect on scheduled monuments and other heritage assets in addition to the World Heritage Site;

· The Minister had correctly understood Historic England’s advice;

· Discussing the recent Court of Appeal judgment in Bramshill the judge considered that in some cases a decision maker could consider the harm and benefits to a particular heritage asset before deciding whether there was net harm to it and that harm could be assessed for different purposes in different parts of guidance. In Stonehenge the court held that there had been no improper double counting or consideration;

· Articles 4 and 5 of the World Heritage Convention confers obligations on member states towards World Heritage Sites. The Court considered that the Convention does not impose an absolute requirement of protection, but that a balance can be drawn against harm and public benefits.

· The Minister had also lawfully considered the development plan, the World Heritage Site Management Plan and the business case.”

For those who may misunderstand the supervisory role of the courts, there was this warning from Holgate J:

“Plainly, this is a scheme about which strongly divergent opinions are held. It is therefore necessary to refer to what was said by the Divisional Court in R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2021] PTSR 553 at [6]:- “It is important to emphasise at the outset what this case is and is not about. Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the relevant procedures and legal principles governing the exercise of their decision-making functions. The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. The choices may be matters of legitimate public debate, but they are not matters for the court to determine. The Court is only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully.”

The present judgment can only decide whether the decision to grant the DCO was lawful or unlawful. It would therefore be wrong for the outcome of this judgment to be treated as either approving or disapproving the project. That is not the court’s function.

I thought it might be interesting to pick out some of the passages where Holgate J sets out his reasoning for finding the decision to have been unlawful:

Ground 1(iv)

“Here, the SST did receive a precis of the ES [environmental statement] and HIA [heritage impact assessment] in so far as the Panel addressed those documents in its report. But the SST did not receive a precis of, or any briefing on, the parts of those documents relating to impacts on heritage assets which the Panel accepted but did not summarise in its reports. This gap is not filled by relying upon the views of IP2 in the Examination because, understandably, they did not see it as being necessary for them to provide a precis of the work on heritage impacts in the ES and in the HIA. Mr Wolfe QC is therefore right to say that the SST did not take into account the appraisal in the ES and HIA of those additional assets, and therefore did not form any conclusion upon the impacts upon their significance, whether in agreement or disagreement.

In my judgment this involved a material error of law. The precise number of assets involved has not been given, but it is undoubtedly large. Mr Wolfe QC pointed to some significant matters. To take one example, IP1 assessed some of the impacts on assets and asset groupings not mentioned by the Panel as slight adverse and others as neutral or beneficial. We have no evidence as to what officials thought about those assessments. More pertinently, the decision letter drafted by officials (which was not materially different from the final document – see [67] above) was completely silent about those assessments. The draft decision letter did not say that they had been considered and were accepted, or otherwise. The court was not shown anything in the decision letter, or the briefing, which could be said to summarise such matters. In these circumstances, the SST was not given legally sufficient material to be able lawfully to carry out the “heritage” balancing exercise required by paragraph 5.134 of the NPSNN and the overall balancing exercise required by s.104 of the PA 2008. In those balancing exercises the SST was obliged to take into account the impacts on the significance of all designated heritage assets affected so that they were weighed, without, of course, having to give reasons which went through all of them one by one.”

Ground 5 (iii)

“The focus of the claimant’s oral submissions was that the defendant failed to consider the relative merits of two alternative schemes for addressing the harm resulting from the western cutting and portal, firstly, to cover approximately 800m of the cutting and secondly, to extend the bored tunnel so that the two portals are located outside the western boundary of the WHS.”

“The relevant circumstances of the present case are wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the SST was required to assess. It was irrational not to do so. This was not merely a relevant consideration which the SST could choose whether or not to take into account. I reach this conclusion for a number of reasons, the cumulative effect of which I judge to be overwhelming. “

Holgate J goes on to set out in detail nine reasons on which he relies (see paragraphs 278 to 288 of the judgment).

The Secretary of State has an uneasy summer ahead: whether or not he seeks permission to appeal, is this a scheme he is still wedded to, cheek by jowl with his transport decarbonisation plan and promised review of the National Networks NPS? Awkwardly, the prime minister had only recently referred to the project in his 15 July 2021 levelling up speech as “critical and overdue”.

Can you make a u-turn on a trunk road?

Simon Ricketts, 30 July 2021

Personal views, et cetera

We will be discussing the case on clubhouse on 10 August (link here), our regular Planning Law, Unplanned panellist Victoria Hutton having appeared for the successful claimant. However, this coming Tuesday, 3 August 2021, our topic will be ££ affordable workspace in section 106 agreements: Why? how? ££ led by my Town Legal colleague Lucy Morton and leading economist Ellie Evans (Volterra) plus other special guests. Join us! Link here.

Photograph courtesy of Highways England

Beauty & The Beach

Let’s see what more announcements the coming week brings…” was my sign off to last week’s ‘Twas The Week Before Recess blog post.

After this week your holiday reading now includes:

A new NPPF and national model design code

The revised NPPF was published on 20 July 2021, along with the new national model design code and MHCLG’s NPPF & national model design code: response to consultation document, and the announcement of the creation of the Office for Place and its impressive Advisory Board , chaired by Nicholas Boys Smith. There was a Policy Exchange launch event at which the Secretary of State spoke and of course a press statement.

My Town colleague Victoria McKeegan has written a piece for Estates Gazette on the changes, Government parades beauty in revised NPPF (23 July 2021, subscription only).

Here is a comparison of the text as against the February 2019 version and here is a comparison as against the January 2021 proposed changes that I wrote about in my 30 January 2021 blog post Beautiful Day.

Various of us, including Victoria, will be discussing the documents in detail at our clubhouse Planning Law Unplanned session from 6pm on Tuesday 27 July 2021. Do join us, either to listen or to make your views known. A link is here.

The Judicial Review and Courts Bill

The Bill was introduced to Parliament on 21 July 2021. We covered the Government’s March 2021 consultation document on judicial review reform in a recent clubhouse Planning Law Unplanned event, with guest speakers including Celina Colquhoun (39 Essex Street, member of the Lord Faulks Committee which had previously carried out its Independent Review of Administrative Law) and Joshua Rozenberg. The Bill appears not to be as radical as the consultation document, the main proposal of interest being the potential for suspended, or non-retrospective, quashing orders. For more information see Richard Harwood QC’s 22 July 2021 blog post The rise of Incrementalism or Joshua Rozenberg’s 22 July 2021 blog post Fettering the courts’ discretion. The Ministry of Justice’s response to consultation document was published alongside the Bill.

The House of Commons HCLG Committee report on permitted development rights

The Committee’s report was published on 22 July 2021.

I recommend reading the report itself. But some extracts from the summary:

“Whilst we understand the intention behind the recent changes, we have concerns about their impact, including on local planning authorities (LPAs) and the critical role they play in place-making. The ability of LPAs to control permitted development is limited to certain prescribed matters, principally those set out in the prior approval process. We support the use of prior approval and other conditions to control the quality of permitted development, but we heard the regime had become so complicated it was now little different from the full planning system. Furthermore, the Government has not explained how its approach to PDR fits with its proposed reforms in the planning White Paper. In particular, the recent changes appear to contradict the increased focus in the White Paper on plan-led development and local democratic involvement.

For these reasons, we recommend the Government pause any further extensions of permitted development rights for change of use to residential, including the new class MA right, which is due to take effect on 1 August, and conduct a review of their role within the wider planning system. As part of that review, we recommend it set out its long-term vision for permitted development for change of use to residential and explain how it plans to retain the benefits of these PDRs whilst not also sacrificing the ability of LPAs to shape their communities.

We broadly welcome the new use class E, as we can see the advantages of greater flexibility, but we are concerned it allows out-of-town premises, such as office blocks, to convert to retail without having first gone through the sequential test.”

As mentioned above, the revised permitted development regime kicks in on 1 August, further minor permitted development changes have been introduced in the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 (made 7 July 2021) and we still await judgment being handed down by the Court of Appeal in the Rights Community Action judicial review…

Happy summer reading and I hope you can join us on Tuesday evening.

Simon Ricketts, 23 July 2021

Personal views, et cetera

‘Twas The Week Before Recess

The House of Commons and House of Lords both rise on 22 July 2021 and are due to return on 6 September 2021, which means that each year this week and next we always see many documents published and announcements made. Much festivity.

This week last year the Planning White Paper was eagerly awaited of course but ran late, eventually being published in the first week of August. At one stage we had expected an update by the Government on progress by now, including its response to last year’s consultation process but Robert Jenrick announced back at the beginning of the month that we will not see this until the Autumn and there will be no Bill until some time after that. (For a summary of MHCLG’s current priorities, see his 6 July 2021 speech to the Local Government Association, or indeed Nicola Gooch’s 16 July 2021 blog post on the speech).

But there have already been various other announcements and publications and in this post I will just pick randomly from them, Quality Street style.

Of particular interest is the Department for Transport’s Transport Decarbonisation Plan (14 July 2021) which sets out the road map (no, wrong expression) for reducing transport’s greenhouse gas emissions to net zero. It is a turbo-charged (no, wrong expression), “high ambition”, plan covering all modes of transport. There is a wide-ranging series of commitments over 220 pages of text.

What is there that directly refers to the planning system? Aside from confirmation that the Government will be reviewing the National Networks National Policy Statement, there is a wider commitment to “embed transport decarbonisation principles in spatial planning and across transport policymaking“. Pages 156 to 160 address this in detail and I am going to no more than set out below large sections of this section:

…The planning system has an important role to play in encouraging development that promotes a shift towards sustainable transport networks and the achievement of net zero transport systems.

Traffic issues have often caused opposition to housebuilding. There is a legacy of developments that give people few alternatives to driving, are difficult to serve efficiently by public transport and are laid out in ways which discourage walking and cycling. Developments which are planned to minimise car use, promote sustainable transport choices, and are properly connected to existing public transport could help make new building more publicly acceptable.

The National Planning Policy Framework (NPPF) makes clear we already expect sustainable transport issues to be considered from the earliest stages of plan-making and development proposals, so that opportunities to promote cycling, walking and public transport are pursued. Planning policies should already provide for high quality cycling and walking networks and supporting facilities such as cycle parking (drawing on Local Cycling and Walking Infrastructure Plans). The NPPF also outlines that new developments should promote sustainable transport, taking opportunities to promote walking, cycling and public transport. However, while many local plans already say the right things, they are not always followed consistently in planning decisions. Developments often do little or nothing meaningful to enable cycling and walking, or to be properly and efficiently accessible by public transport. Sometimes they make cycling and walking provision worse. We can and must do better.

Last summer, the Government set out its vision for a new and improved planning system in the Planning for the Future White Paper, a vision to make good on the Government’s pledge to build back better, build back faster and build back greener. The White Paper set out how the planning system is central to our most important national challenges, including combating climate change and supporting sustainable growth.

A reformed planning system can assist in achieving the ambition of a zero emission transport future. The planning reforms will provide an opportunity to consider how sustainable transport is planned for and importantly how it is delivered to support sustainable growth and drive more sustainable use of our existing built environment e.g. planning for new development around existing transport hubs, for all developments to be easily and safely accessible and navigable by foot and cycle, and to make existing cycling and walking provision better. Through good design and proper consideration of the needs of our communities, we can better connect people, making communities more accessible, inclusive, safe, and attractive as well as promoting the principles of 20-minute neighbourhoods. We are working with the Ministry of Housing, Communities & Local Government and the Local Government Association to place cycling, walking and public transport provision at the heart of local plan making and decision taking for new developments. In doing so, we recognise the particular challenges faced by rural and remote areas in this regard, and will work, including through the upcoming Future of Transport: Rural Strategy, to ensure policies recognise differing geographies.

The National Model Design Code sets out a process for developing local design codes and guides, with supporting design guidance on movement and public spaces including streets. It outlines an expectation that development should consist of a well-connected network of streets with good public transport and an emphasis on active travel modes including walking and cycling. Building on this, we will also ensure that an updated Manual for Streets aligns with these principles and is routinely used for plan making and decision taking to secure better outcomes for our streets and public realm. These documents can play a key role in delivering high quality, accessible, secure and safe cycle storage. We will work with Active Travel England and other key stakeholders to ensure that the importance of securing high quality cycling and walking provision is embedded within the planning system.

We recognise that the Government has a role in helping Local Planning and Highways Authorities to better plan for sustainable transport and develop innovative policies to reduce car dependency. We need to move away from transport planning based on predicting future demand to provide capacity (‘predict and provide’) to planning that sets an outcome communities want to achieve and provides the transport solutions to deliver those outcomes (sometimes referred to as ‘vision and validate’). We will continue to work with MHCLG to identify how we can best support local authorities to develop innovative sustainable transport policies as part of the planning process, how this can be used to better assess planning applications, and better monitor local transport outcomes to deliver on our ambitions for sustainable transport use.

Achieving these ambitions will require a long-term collective effort across government, local authorities, communities, businesses, and developers. We are exploring with MHCLG how the planning system can be designed to facilitate better collaboration and planning for growth across local authority boundaries, with all key stakeholders involved, to ensure that we align that growth with both strategic and local infrastructure delivery to make good on our manifesto commitment to put infrastructure first and drive growth sustainably.”

The next day, 15 July 2021, we had the Prime Minister’s florid Levelling Up speech, although for actual announcements it might be better to go straight to, for example, a press statement issued the same day: PM sets out new ‘County Deals’ to devolve power to local communities in Levelling Up speech (15 July 2021).

“New ‘County Deals’ to take devolution beyond the largest cities, offering the rest of England the same powers metro mayors have gained over things like transport, skills and economic support.

County Deals will be bespoke to the needs of individual places, bringing decisions closer to people and places, potentially allowing more places to benefit from strong, high profile local champions. County Deals will give places the tools they need to pilot new ideas, create jobs, drive growth and improve public services.

Further detail will be set out in the Levelling Up White Paper, but as the Prime Minister set out, county deals will not be one size fits all, and government will take a flexible approach to allow more places to agree devolution.”

The same day there was also the press statement Government strategy to regenerate high streets (MHCLG, 15 July 2021), with various announcements, including the publication of Build Back BHS – apologies: Build Back Better High Streets. Compulsory purchase practitioners will be interested to see this passage:

“We are […] encouraging councils to use Compulsory Purchase Orders (CPOs) for long-term empty properties and where property owners are stalling regeneration plans. We want to:

• Ensure councils have the right Compulsory Purchase Order enabling powers to support the transformation of high streets and other regeneration projects so that they can acquire vacant and derelict buildings in order to attract new private investment.

• Ensure as part of our planning reforms that Compulsory Purchase Orders can support more effective land assembly to facilitate the development of growth areas identified in the new-style local plans, particularly when they support town centre regeneration.

Strengthen the capacity and support for local authorities to ensure they are able to use these new Compulsory Purchase Order powers and rights to support the transformation of high streets.”

As regards the conversion of high streets to homes, the following passage was eyebrow raising. So how would this work with the operation of permitted development rights then? And the provision of “green infrastructure” a justification for development intensification?

Where high streets are being repurposed for homes, green infrastructure and improved public space should be integral. We will explore how reforms to the planning system can ensure green infrastructure is better incorporated into new development. Development of homes, businesses and community space could be intensified on parts of sites to free up land for green infrastructure provision.”

And just to keep practitioners on their toes, there was the Planning Inspectorate’s announcement Plans to resume in-person events (15 July 2021). In one part of the policy forest there’s the transport decarbonisation plan, in another part, brmm brmm, off we go back to in person inquiries from 13 September:

“For hearings and inquiries taking place from 13 September we will be reverting to the pre-pandemic approach of them being arranged by local authorities. In-person events will be possible, but where participants (including the inspector) need to present their evidence or participate virtually this will need to be facilitated by the local authority.

Where in-person elements are planned, the local authority will need to be prepared for the event to be held fully virtually in case pandemic restrictions change.

Let’s see what more announcements the coming week brings…

Simon Ricketts, 16 July 2021

Personal views, et cetera

This week’s clubhouse Planning Law Unplanned session (6pm Tuesday 20 July) is on the theme “A Green Recovery”: what does it mean; what opportunities? Lucy Wood (Barton Willmore) will lead the session, which will take a good hard look at the government’s green policy agenda (including the transport decarbonisation plan) and what it means for business, councils and communities, alongside special guests including Neil Collar (Brodies) and others still to be confirmed. An invitation to the app and event is here.

(Public transport = tick).

CIL: There Is No Equity About A Tax

“…in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.”

This passage comes from a 1921 case, Cape Brandy Syndicate v IRC, and was quoted this week by Thornton J in the latest case about a self-builder who had unwittingly lost any right to an exemption from the community infrastructure levy: Gardiner v Hertsmere Borough Council (Thornton J, 6 July 2021). (For a previous unfortunate tale see my 19 January 2019 blog post CIL The Merciless).

The purpose of this post is simply to point out again as to how important, but difficult, it is to arrive at an accurate interpretation of the Community Infrastructure Levy Regulations.

This latest case raised “a point of principle as to whether the self-build exemption provided for in Regulation 54A of the Community Infrastructure Regulations (2010/948) (the CIL Regulations) applies to the grant of planning permission, pursuant to S73A TCPA, for development already carried out.

Query why there is a self-build exemption in the first place for such large self-build schemes as those which end up in these sorts of disputes, but on a wider basis the case is certainly a warning of the CIL consequences of carrying out development in breach of planning control…

“The Claimant is a self- builder who obtained planning permission for partial demolition of, and extension to, his existing chalet bungalow at 59 Aldenham Avenue, Radlett, Hertfordshire, WD7 8JA (“the Site”). CIL was not payable as the Defendant exempts residential extensions from the levy. The Defendant’s planning officers visited the site during the course of the demolition work and considered that the works undertaken had gone beyond the works authorised by the planning permission. They were of the view that the development was unauthorised. In response the Claimant submitted a new planning application to regularise the demolition works undertaken and to permit the subsequent rebuild now required (as opposed to the former extension) of the house. Planning permission was subsequently granted, part-retrospectively, pursuant to s.73A TCPA for the demolition and the erection of a new detached 6-bed dwelling.

The Defendant [Hertsmere Borough Council] is the charging and collecting authority for CIL in the area of Radlett, Hertfordshire. The Interested Party [the Secretary of State] was joined by order of Mr Justice Holgate and directed to produce written submissions to assist the Court as the claim raises issues of interpretation of the CIL Regulations which may have wider implications.”

The case was despatched by Thornton J in short order:

“It is […] apparent, when the ‘strict criteria’ in Regulation 54B(2) are tested against the grant of planning permission, pursuant to Section 73A TCPA, for development already carried out, that they bar the availability of the exemption for such permission.

Firstly; the claim for an exemption must be made by a person who “intends to build, or commission the building of, a new dwelling” (Reg 54B(2)(a)). The references to ‘intends’ and ‘commission’ are forward looking. They are not consistent with an application by a person who has already built or begun to build a dwelling.

Secondly; the claim must be made by someone who has assumed liability to pay CIL in respect of the new dwelling’ (Regulation 54B(2)(a)(ii)). The assumption of liability is a prerequisite to obtaining the exemption. Yet this is not possible for retrospective planning permission granted under Section 73A TCPA, by virtue of Regulation 7(5) and 31 CIL Regulations. Regulation 31 governs the assumption of liability. It refers to “a person who wishes to assume liability in respect of a chargeable development”. The precise use of the words “a chargeable development” make clear that a chargeable development must exist in order for a person to assume liability to pay CIL in respect of it. In other words liability cannot be assumed under Regulation 31, in respect of a chargeable development, until such time as the chargeable development exists. This is necessarily after planning permission has been granted, by virtue of Regulation 9(1). Liability cannot be assumed for something that does not exist and may never exist (if planning permission is not granted).”

“The Claimant’s wife pointed out in correspondence that “our record of engagement with the Council clearly reflects our respect for the [planning] process and that we are exactly the type of residents to whom the CIL exemption is supposed to be available”. In response, the Defendant acknowledged that “the circumstances of this case that caused the CIL liability to be triggered may seem unfair”.

To which Thornton J’s response was the passage at the beginning of this post.

Thornton J handed down judgment in another CIL case at the end of May, London Borough of Lambeth v Secretary of State (Thornton J, 28 May 2021), with another tough outcome for the party liable to pay CIL.

The Lambeth case considered whether a surcharge for late payment of the levy is dependent on the service by a collecting authority of a liability and/or a demand notice and whether, where a revised liability and/or demand notice is issued or served, previously incurred late payment surcharges cease to be payable? In essence, if you were liable to pay CIL but failed to pay it & then only subsequently does the charging authority issue its liability or demand notice, is it fair that the authority can still levy a surcharge for non-payment?

The Claimant [the London Borough of Lambeth] contends that liability for a late payment surcharge is:
a. not contingent on the service of a Liability or Demand Notice; and
b. the issue/service of a revised Liability and/or Demand Notice does not have the effect of extinguishing liability for a late payment surcharge which has already been incurred.

The Defendant [the Secretary of State] accepts that the Claimant’s interpretation of the CIL Regulations is correct and concedes the claim.

The Interested Party [Thornton Park (London) Limited] continues to contest the claim. The Interested Party’s case before the Inspector and this Court is that the effect of Regulation 65(9) is that the issue of a revised Demand Notice means that any previously served Demand Notices cease to have effect so a surcharge for late payment can only be imposed 30 days after service of the revised notice, as per Regulation 85(1).

“The essential factual background is as follows: the Claimant granted planning permission for development, for which the Interested Party assumed responsibility for payment of CIL and in respect of which the Claimant duly served a Liability Notice. On 23 November 2018, the Claimant served a Demand Notice stating the amount payable by the Interested Party to be £5,549,963.41 and that the amount was payable in two instalments: on 25 January 2019 and 24 July 2019. Those instalments were not paid. On 18 September 2019, the Claimant granted the Interested Party’s application for a non-material amendment to the planning permission resulting in a change of the chargeable amount. Revised Liability and Demand Notices were served to reflect the changes. On 15 October 2019, the Claimant issued a revised demand notice to include late payment surcharges. The Claimant issued a further revised Liability Notice on 27 November 2019 followed by a revised Demand Notice (including late payment surcharge [of £465,617.67]) on 10 December 2019, to account for further changes to the development and thus to the chargeable amount. In response the Interested Party appealed [successfully] against the payment of the surcharge on the basis that the breach which lead to the imposition of the surcharge had not occurred.”

The council challenged the inspector’s decision. Thornton J concluded that the inspector had “erred in finding that the Claimant had no lawful authority to impose a late payment surcharge with respect to unpaid CIL. Liability for a late payment surcharge is not contingent on the service of a Liability or Demand Notice. The issue/service of a revised Liability and/or Demand Notice does not have the effect of extinguishing liability for a late payment surcharge which has already been incurred.”

As stated by Thornton J in Gardiner, and stated in similar terms in Lambeth:

The Community Infrastructure Levy is akin to a tax. The proper interpretation of tax legislation requires a close analysis of what, on a purposive construction, the statute actually requires”.

Forget about trying to what work out what might have been equitable. Just read the Regs.

Cheerful point for the future: CIL’s mooted replacement, the Infrastructure Levy, will also be “akin to a tax” and of course will contain a whole new set of trip hazards and uncertainties. Given that there can be little room for flexibility, or consideration of what may be an equitable outcome, at the point of liability, the legislation itself inevitably ends up having to allow, as best it can, for all permutations of situation and that’s where the complexity comes (and grows with every amendment).

Simon Ricketts, 10 July 2021

Personal views, et cetera

Two events coming up this week:

Our clubhouse Planning Law, Unplanned session at 6 pm on Tuesday 13 July, is entitled “JR = VAR? Reviewing judicial review & human rights protections”. What are the Government’s proposals for judicial review & human rights reform and what are the potential practical implications for the planning system in particular? The discussion will be led by Charlie Banner QC (Keating Chambers), Celina Colquhoun (39 Essex Chambers and former member of the Faulks review) and Joshua Rozenberg (honorary QC, leading legal commentator & author of “Enemies of the people: How Judges Shape Society”).

Please feel free to join us, whether to take part in the discussion or just to listen. Invitation to app & event here.

A joint Town Legal and 39 Essex Chambers webinar is also taking place, at 5 pm on Thursday 15 July: Judicial Review & The Planning System in 2021: Practical tips, current trends, what’s round the corner?

Please free to register here.

Safety & Planning

To what extent is human safety, and the safe construction of buildings, a matter for the planning system? It can be difficult to determine and this blog post just scratches the surface – there’s a book to be written by someone (not me!) on the subject.

Last week the High Court handed down judgment in Valero Logistics UK Limited v Plymouth City Council (Thornton J, 30 June 2021). Valero and another company operate distilled fuel storage depots, the closest of which is approximately 125m away from a helipad within the grounds of Victoria House, Plymouth. “The depots are “establishments” regulated under the Control of Major Accident Hazards Regulations (SI2015/483) (‘the COMAH sites’) because of the intrinsic dangers to human health and the environment which the products handled and stored there present. Highly flammable fuel is regularly unloaded at a dock approximately 400 metres south east of the site and conveyed by over-ground pipes to the Claimants’ depots, where it is stored in above-ground tanks.”

They were challenging the council’s grant of planning permission for commercial use of the helipad which is currently only used for purposes ancillary to use of the residential use of the house. They had the following five, inter-related, grounds of challenge:

“Ground 1 – the Defendant failed to consider a material consideration by not considering the risks posed by the development to the COMAH sites.

Ground 2 – the Defendant misunderstood the “fallback” position and, by relying on that misunderstanding, it skewed the process by which it made the decision.

Ground 3 – the Defendant acted irrationally by relying on the existence of other regulatory regimes in deciding to grant permission.

Ground 4 – the Defendant erred in law by granting permission to an application that conflicted with the development plan when no other material considerations justified such a decision.

Ground 5 – the decision was irrational.

The Claimants point to the potentially catastrophic consequences of a helicopter crashing onto highly flammable fuel and say that what unites the grounds is a decision-making process and decision that abdicates responsibility for the dangers created by the proposed development. In particular, the Defendant conspicuously failed to engage with the scale of the risk posed to the COMAH sites by commercially operated helicopters flying at low heights over large quantities of highly flammable fuel. To the extent the Defendant recognised any risk, it sought to off-load it onto the Civil Aviation Authority (CAA) even though the CAA did/does not have the mandate or the expertise to evaluate the consequences on the ground of crashing aircraft or to take land-based decisions accordingly. These remain the safety responsibilities of others including the Defendant who is said to have been, and remains, in denial about this.”

The claim failed on all grounds. I want just to point to the summary by Thornton J as to the approach to be taken to safety and other matters covered by other regulatory regimes:

“Where a regulatory regime exists to deal with an issue raised by a planning application, it is open to a Local Planning Authority to place reliance upon the effective operation of that regime in determining an application for planning permission. However, the Local Planning Authority cannot simply ignore the issues in question. It must satisfy itself that the other regulatory regime is capable of regulating the relevant issues..”

The safety concerns were indeed considered by the council’s planning committee. As summarised by the judge:

“It is clear from the [discussion at the planning committee] that the Planning Officer and Members recognised that the risks to the COMAH sites from a helicopter crash were a principal issue in their consideration of the planning application. Extensive consideration was given to the risks and their mitigation including: how the helicopter is operated (under regulatory controls imposed by the CAA); who operates it (professional pilots); type and class of helicopter (Performance Class 1); and where the helicopter is flown (precise flight paths to and from the Site, mainly over water and strictly enforced). In addition, the Members ensured direct communications between the Site Operator and COMAH sites (as well as the Harbour Commissioners) prior to flights. The Committee understood correctly that it must exercise its judgment to assess the risks of the proposal having taken account of the views of the HSE and Civil Aviation Authority. The planning judgment reached was that the current ancillary ad hoc private helicopter use from the Site was less safe than the increased regulation over and greater professionalism of, commercial flying operations from the Site.

The Claimants criticise the Committee’s understanding of risk analysis but they construe risk assessment and minimisation too narrowly to assert that the risks to the COMAH sites cannot be accounted for unless specifically addressed. This is to ignore the broader set of technical and organisational mitigation to reduce the risk of a helicopter crash. The Claimants submit that the Defendant should itself have gone to the helicopter accident statistics and done its own risk assessment to test the 1 in a billion chance of catastrophic helicopter failure set out in the Interested Party’s risk assessment but, as the Planning Officer said during the debate, the Planning Committee are not specialist risk assessors. The Committee heard representations from Valero on the safety risks at the Committee meeting. The Claimants’ submissions seek to hypercritically retest the merits of the decision. It is correct to say that the officer erred in reporting the risk of failure to the Committee as 1 in 9 billion not 1 in 1 billion. The risk was however correctly reported in the Officer’s written report. It is well established that the reports of Planning Officers must not be subject to hypercritical analysis. The same must apply with even greater force to the oral discussion at a Committee meeting where an officer is responding on his feet to questions from members without the luxury of contemplation allowed for in the production of a written document. It is apparent from a review of the transcript of the whole meeting that the Officer and Committee members understood (and were concerned) about the nature of the risks posed by the proposed development to the COMAH sites and further understood that it was ultimately a matter of planning judgment as to whether the risks and mitigation measures (general helicopter technical and organisational requirements, as well as specific COMAH site requirements and regulation by the CAA) were acceptable. They formed the view that they were acceptable, which was a view they were, in my judgment, entitled to come to on the evidence before them.”

So, a decision maker can rely on the effective operation of another regulatory regime, as long as it satisfies itself that the other regulatory regime is capable of regulating the relevant issues.

(Aside from issues of safety and major accidents, the “overlap with other regulatory regimes” question arose in R (Squire) v Shropshire Council (Court of Appeal, 24 May 2019) which I covered in my 1 June 2019 blog post Chickens**t EIA, where a planning permission was quashed on the basis that the decision maker had wrongly concluded that odour and dust issues arising from the proposed spreading of manure would be adequately policed by the Environment Agency via its IPPC permitting regime).

The following complications arise:

First of all, quite an onus is placed on the decision maker, given how complex it is to ascertain the nature of risks arising and how the regulatory regime operates, in the context of the possibly tragic consequences of making the wrong decision – and often in the face of vociferous detailed objections.

Secondly, the question of what is a material planning consideration is famously amorphous and over time issues as to building safety have been drawn into the planning system, which could be dealt with by way of other regulatory systems (or which are dealt with, but at a much later stage).

At a local level, think for example of some central London authorities’ detailed controls over subterranean development (see my 5 December 2016 blog post First World Problems: Basements).

At a national level, in response to the Grenfell tragedy and following commitments made in Building a Safer Future: Proposals for Reform of the Building Safety Regulatory System in the light of Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety the Government has made the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021, which introduces a requirement for a fire statement to be submitted with applications for planning permission for development involving a building (1) contains two or more dwellings or educational accommodation and (2) contains 7 or more storeys or is 18 metres or more in height. The fire statement is published on the planning register and the Health and Safety Executive must consulted before the grant of planning permission involving a high-rise residential building in certain circumstances. The new regime, known as “Planning Gateway One”, applies to planning applications made from 1 August 2021 onwards and the Government’s Planning Practice Guidance has been updated. “The changes are intended to help ensure that applicants and decision-makers consider planning issues relevant to fire safety, bringing forward thinking on fire safety matters as they relate to land use planning to the earliest possible stage in the development process and result in better schemes which fully integrate thinking on fire safety.”

This is obviously prudent, rather than for vital safety issues to be left for consideration through the Building Regulations and other requirements at a later stage in the process. But, again local planning authorities are increasingly being drawn into matters outside their traditional remit. What level of scrutiny will they need to give to the statements and on what basis are they justified in requiring further information, even if the HSE is satisfied?

The judge in Valero previously presided over another high profile case as to the extent of a local planning authority’s duties in relation to public safety. In Crest Nicholson Operations Limited v West Berkshire Council (Thornton J, 12 February 2021) Crest and others challenged West Berkshire Council’s designation of a Detailed Emergency Planning Zone (“DEPZ”) under the Radiation (Emergency Preparedness and Public Information) Regulations 2019, which were “part of an international, EU and national response to the meltdown of three reactors at the Fukushima Daiichi nuclear power plant in Japan in March 2011 following an undersea earthquake.”

“One of the key changes to emergency planning, reflected in the Regulations, is to require risk assessment and planning for events which have a low likelihood of occurrence but high impact in the event they do occur; as with the Fukushima disaster. Another change, specific to the Regulations, concerns a shift in responsibility for deciding on the extent of a geographical zone in which it is proportionate to plan for protective action in the event of a radiation emergency. The zone is referred to in the Regulations as a ‘Detailed Emergency Planning Zone’ (DEPZ). Responsibility used to lie with either the Office for Nuclear Regulation or the Health and Safety Executive but now rests with the relevant local authority, who must designate the zone on the basis of a recommendation from the site operator.

On 12 March 2020, West Berkshire District Council designated the DEPZ around the Burghfield Atomic Weapons Establishment with a minimum radius of 3160 m from the centre of the site. The site is of national strategic importance. Nuclear weapons are assembled, maintained and decommissioned there. Under the previous regime, the DEPZ was based on a minimum radius of 1600 metres. The extension covers much of the 700 hectares of land belonging to the Claimants and previously earmarked for the development of 15000 homes.

The Claimants contend that the rationale for the new and radically extended DEPZ on a recommendation by the privately run operator, AWE, is simply not known. The only publicly facing document contains, at best, a partial rationale for the designation, which is insufficient, as a matter of law, to meet the requirements of the Regulations. The document was not made available to the public until after the DEPZ was designated which was procedurally improper and in breach of statutory requirements. Regulatory oversight of the designation process has been deficient.”

The challenge failed. Those seeking to second-guess decisions that a public authority has reached on matters that fall within the authority’s technical expertise definitely face an uphill struggle:

The Courts have recognised the need for judicial restraint where the issue under scrutiny falls within the particular specialism or expertise of the defendant public authority. In R(Mott) v Environment Agency Beatson LJ observed that “a regulatory body such as the [Environment] Agency is clearly entitled to deploy its experience, technical expertise and statutory mandate in support of its decisions, and to expect a court considering a challenge by judicial review to have regard to that expertise” (§63). In this case the defendant public authority is the local authority which does not itself hold the technical expertise itself to assess AWE’s work. Nonetheless it drew on assistance and advice from the ONR and PHE. I consider this to be akin to the position where the defendant public authority relies on experts, which the Courts have acknowledged entitles the public authority to a margin of appreciation (relevant that the defendant “had access to internal expert advice and the views of external bodies” in deciding whether there was material before the defendant on which it could rationally be decided that the approval should be made: R(Christian Concern) v Secretary of State for Health and Social Care [2020] EWHC 1546 (Admin)(Divisional Court) at §30 (Singh LJ)) (see also “Where a screening decision is based on the opinion of experts, which is relevant and informed, the decision maker is entitled to rely upon their advice”; Lang J in R (Swire) v Secretary of State for Housing Communities and Local Government [2020] EWHC 1298 (Admin) at §61).

This all of course places much power in the hands of public bodies such as the Health and Safety Executive, Environment Agency, Public Health England and Office for Nuclear Regulation.

In practice not only does it become difficult for local planning authorities to do anything other than rubber-stamp the advice that they receive given that to do so without sufficient reasoning might not just render their decision liable to challenge but they also need to be aware of the potential for liability in common law negligence to arise. After all, in Kane v New Forest District Council (Court of Appeal, 13 June 2001) it was held that a pedestrian injured by a car when he had left a footpath to cross a road had a real prospect of success in a negligence claim against a local planning authority, given that the authority had required the path to be provided in relation to a development but had not done anything to make sure that the crossing point would be visible to drivers.

The court said this: “it was [the local planning authority] who required this footpath to be constructed. I cannot accept that in these circumstances they were entitled to wash their hands of that danger and simply leave it to others to cure it by improving the sightlines. It is one thing to say that at the time when the respondents required the construction of this footpath they had every reason to suppose that the improvements along The White Cottage frontage would ultimately allow it to be safely opened and used: quite another to say that they were later entitled to stand idly by whilst, as they must have known, the footpath lay open to the public in a recognisably dangerous state.”

The NPPF simply has references to the desirability of “safe communities” and “safe places” and these specific passages:

Local planning authorities should consult the appropriate bodies when considering applications for the siting of, or changes to, major hazard sites, installations or pipelines, or for development around them.” (paragraph 45).

Planning policies and decisions should promote public safety and take into account wider security and defence requirements by:

a) anticipating and addressing possible malicious threats and natural hazards, especially in locations where large numbers of people are expected to congregate. Policies for relevant areas (such as town centre and regeneration frameworks), and the layout and design of developments, should be informed by the most up-to-date information available from the police and other agencies about the nature of potential threats and their implications. This includes appropriate and proportionate steps that can be taken to reduce vulnerability, increase resilience and ensure public safety and security; and

b) recognising and supporting development required for operational defence and security purposes, and ensuring that operational sites are not affected adversely by the impact of other development proposed in the area.” (paragraph 95).”

As I say, I’ve only scratched the surface of an important subject.

Simon Ricketts, 3 July 2021

Personal views, et cetera

This week, from 6 to 7.15 pm on Tuesday 6 July we have another big clubhouse Planning Law Unplanned event, We Need To Talk About Green Belt, leading off with contributions from barristers Jonathan Easton and Zack Simons, who will give a first-hand insight into their recent Bolton and Colney Heath inquiry decisions. Free invite to the app and event here.