Month: August 2021

How Long Has This Been Going On?

Time is money. Time is unmet needs. Time is unrealised public benefits.

I just wanted to capture some of the current, frankly depressing, data that is out there on application and appeal timescales.

The purpose of this post is to underline that there is a significant problem to be addressed. What to do about it will be for another post – there is certainly much that can be done that does not require (1) legislation (2) additional resources or (3) any procedural shortcuts.

Applications

A piece from yesterday’s Planning daily online: Council signs off 2,380-home urban extension almost four years after committee approval (£). Four years is certainly going it some but I can confirm from constant first-hand experience how difficult it can be to move a project from resolution to grant to permission at any speed. The larger or more complex the project, the longer those negotiations over the section 106 agreement and associated aspects can end up taking.

My colleague Lida Nguyen has been looking at the position in London. She has looked at all applications for planning permission which were referred to the Mayor between 3 January and 11 December 2020, so applications of potential strategic importance as defined in the Mayor of London Order 2008 and, for those which were then approved by the relevant borough (without intervention by the Mayor or secretary of State), she has looked at the average time that the application took from validation to the borough’s resolution to approve and from the borough’s resolution to approve to permission being issued. Discarding a few anomalous cases, this left 88 to be analysed.

In my humble view the statistics are appalling, but not surprising:

Application submission to resolution to approve

Median: 228.5 days

Mean: 269 days

Resolution to approve to grant of permission

Median: 218.5 days

Mean: 259 days

It’s rather deflating for applicants and (when you stand back from the detail) surely absurd that resolution to grant in reality only marks the halfway point to a permission in relation to significant projects in London. Wouldn’t it be a start for boroughs, the Mayor and those acting for applicants to set a target of halving each of those figures and agreeing the necessary steps to achieve that reduction?

Appeals

My 25 May 2019 blog post Pace Making: Progress At PINS reported on Bridget Rosewell’s recommendation, adopted by the Planning Inspectorate, that inquiry appeals decided by an inspector (i.e. not recovered by the Secretary of State) should be decided within 24 weeks of receipt and that where the Secretary of State is to be the decision-maker, inspectors’ reports should be submitted to the Secretary of State within 30 weeks of receipt of the appeal. Initial progress was really impressive – until the first lockdown struck in March 2020. After a slow start (see my 2 May 2020 blog post There Is No E In Inquiry), PINS of course eventually, to the massive credit of all involved, embraced virtual hearings, inquiries and examinations and the risk of an impossible backlog was averted. However, it is clear from the latest Planning Inspectorate statistical update (19 August 2021) that there is still much work to do:

“The mean average time to make a decision, across all cases in the last 12 months (Aug 20 to Jul 21), was 27 weeks. The median time is 23 weeks.

The median time to decide a case decreased by 0.6 weeks between June and July 21, with the median being 21.4 weeks.

Median timeliness by procedure type is shown in the summary table below.

Performance since April 21 against the median measure has only varied by 0.7 weeks, between 21.4 weeks and 22.1 weeks. Performance had been improving between November 20 and March 21. For inquiries, in the last two months, cases have taken longer to decide as a result of very old enforcement inquiry cases being decided.

Enforcement decisions made in the last 12 months had a median decision time of 34 weeks. Looking at the annual totals, the median and mean time to decision for specialist decisions have been broadly the same as for enforcement decisions, and longer than the median for planning decisions. Since February 21 there has been a change in this trend, with Specialist cases being quicker than Enforcement.

The median time for planning appeals decided by inquiry under the Rosewell Process over the 12 months to July 21 is 35 weeks. This is quicker than other types of casework decided by inquiry.”

Whilst the extent of statistical information provided these days is welcome, it is difficult sometimes to track the figures through the different tables so as to work out what the likely timescale outcome for a prospective appellant will turn out to be. I have also looked in vain within the statistics for any information as the time being taken between appeal receipt and validation – a traditional black hole when it comes to appeal timescales. I’m also struggling to see any breakdown as to what the “Rosewell” inquiries were (35 weeks average) as compared to inquiries overall (79 weeks!).

That overall 27 weeks average is deceptively encouraging for anyone looking at anything other than a written representations appeal. Because those appeals make up 95% of the total of course they massively skew the mean figure. But even then, although not reflected in these statistics, my own anecdotal impression is that validation of appeals which proceed by way of written representations or hearing is very slow indeed, raising a large question mark over the overall statistics. Possibly something to do with the focus on Rosewell inquiry appeal targets. Am I being unfair? What solid information on this is there out there? If there isn’t any, why not??

The Planning Inspectorate Annual Report and Accounts (July 2021) contains further statistical information, with tables such as these looking back at the changing position over the last five years:

In order to meet Rosewell targets, surely on that last table the 90th percentile needs to come down from 66 weeks to 24 weeks – and to be measured from receipt of appeal rather than validation?

Again, as with timescales for major applications in London, with appeal inquiries, surely we are looking at the need to more than halve current timescales?

All tables above have been taken from PINS documentation, for which thanks.

Simon Ricketts, 20 August 2021

Personal views, et cetera

Planning Law Unplanned is having a summer break this week, before returning at 6pm on Tuesday 31 August for somewhat of a BECG/DP9 special, London Elections 2022: Politics Meets Planning. Join the club here for notifications of this and future clubhouse Planning Law Unplanned events.

Photograph by Ben White on Unsplash

Westminster’s Bump In The Road: The Mound

Westminster City Council’s deputy leader Councillor Melvyn Caplan resigned yesterday (12 August 2021) over the summer fiasco of the temporary viewing platform that has been built next to Marble Arch, in the middle of the gyratory roundabout where Park Lane meets Oxford Street. From WCC’s press statement Westminster City Council update on Marble Arch Mound:

“The Mound opened too early, and we have apologised for that. It has become clear that costs have risen more than anticipated and that is totally unacceptable. Our original forecast cost was £3.3m. Total costs are now £6m, covering every aspect of the project: construction, operation and eventual removal.”

All credit to Councillor Caplan for taking that honourable step. However, so many questions arise from this:

• On the one hand, is it right for one person to carry the can, but, on the other hand, why don’t we see more examples of leadership like this in local or national government when bigger things go wrong?

• Doesn’t the Council deserve at least some credit for being innovative, in the face of the challenges faced by Oxford Street and the west end? There’s surely nothing wrong with “off the wall” projects as a matter of principle as long as behind the scenes they are as de-risked as possible and it will be a shame if the crushing “computer says no” answer to every idea will now be “remember the mound”.

• When is it appropriate for a public authority to take on this sort of project and when should it de-risk via the private sector? Didn’t it in fact ring alarm bells that a private operator wasn’t prepared to speculate on the project, or weren’t they even given the opportunity?

• Did the computer generated imagery serve to oversell the initial experience?

This project did seem to get an exceptionally easy ride.

The application for planning permission was resolved to be approved on 30 March 2021 and planning permission issued later that day, with the application only having been submitted on 19 February (which was the first time, as far as I know, the project entered the public domain). So applications can be determined quickly (in less than six weeks) under the current system then, even for an eight storey high temporary structure on metropolitan open land next to a grade 1 listed building and with the lead-in to a committee meeting! We’ll all have some of that please.

From the report to Planning Applications Sub-Committee:

“The location of the structure is sensitive due to its setting adjacent to the Grade 1 Listed Marble Area [sic] and location on Metropolitan Open Land (MOL). However, the provision of a temporary visitor is aimed at attracting visitors back to the Oxford Street District by increasing footfall, and supporting economic recovery following the Covid -19 pandemic. This is a clear planning benefit which is considered to outweigh the less than substantial harm that would be caused to the designated heritage assets.”

I don’t particularly quibble with the fact that planning permission was granted (and I note that it did have much business support – after all it really wasn’t in principle a bad idea), although it is interesting to see the light touch applied to the sustainability of the project in the officer’s report:

“Sustainability:

“Relocation of trees, grass, wood and soil. The proposal is that elements used in the construction of the structure, namely wood, soil, grass, and trees will all find new uses in nearby gardens and parks. The submission refers to ‘a co-ordinated dismantling programme to enable the transplanting of the numerous plants and trees used in landscaping of the hill to other projects in and beyond the Oxford Street District for the benefit of its communities’.

The focus will be on greening school environments, community spaces, and housing amenity areas. The planting used on this project will meet the City Council’s priorities for health and wellbeing. It is envisaged that the project as a whole can then contribute to the development and illustration of the Council’s Green Infrastructure Strategy.

The Head of Arboricultural Services advises that there are limitations on suitable space available for such material and attempting to transplant living plant material is likely to result in a high mortality rate. Therefore, this is unlikely to be a practical proposition. In the circumstances whilst the intention to re-use as much of the structure as possible is welcomed and encouraged. Given potential practical difficulties highlighted it is not recommended that this is secured by condition.”

After planning permission was granted, the final go-ahead for the project was given by cabinet in May 2021.

This what was said about costs:

“The current indicative construction costs for the mound are approximately £1.998m. These will be met from the £150m investment in Oxford Street District approved by Full Council in March 2019. Capital expenditure of c£522k will ensure a number of permanent legacy improvements are delivered across the district and this will be met from the approved Highways capital budgets. The potential for significant income generation has been further developed. This will be offset against operational and construction costs to reduce the overall net cost.”

To these costs were to be added the costs of the operator contract.

Cabinet were informed as to the prospect of income in the order of £2m being generated by the attraction.

Given that entrance is now going to be free for the duration of August, sadly the figures currently look on the optimistic side.

Why wasn’t there more scrutiny of the budget? Was everyone just caught up in the moment and conscious of the narrow window for pressing the “go” button? After all, warning bell surely, the architects, MVRDV, had previously proposed a very similar scheme for the Serpentine Gallery in 2004, which was abandoned for financial and health and safety reasons (see MVRDV’s proposed 2004 Serpentine Gallery Pavilion was “a heroic failure” (Dezeen, 8 November 2015) ).

My final question was as to the computer generated imagery used to “sell” the project. It looks instagram-amazing – and with a project like this the detail was always going to make the difference between success and failure. It is always going to be about that initial opening day wow factor: wasn’t the real problem (as per the first part of that WCC press statement) just that it really wasn’t ready to be unveiled? Worse things have happened, but it’s obviously difficult when you make a false, and unusual, step in such a high profile location.

Picture courtesy Westminster City Council

Who knows, it might turn out largely as illustrated (just late, like everything) and after all (although perhaps a stretch in this instance), perhaps all publicity is indeed good publicity. I’ll pay a visit to see what all the fuss is about, with maybe a little retail therapy en route (which after all is what it’s all about). Overall it is obvious that mistakes have been made, but (1) (oldest of sayings) let who is without sin cast the first stone and (2) (newest of sayings) don’t you just hate to see a combined media and social media pile-on?

Simon Ricketts, 13 August 2021

Personal views, et cetera

Our Planning Law Unplanned clubhouse event this Tuesday 17 August (6 to 7.15 pm) should be fascinating: “An End To Ugly? The Office for Place & National Model Design Code unpacked”, with special guests Nicholas Boys-Smith, Chris Miele and Vicky Payne. Sign up to the app here.

Picture courtesy Westminster City Council

“We Can Take Some Of The Edges Off That Are Upsetting People”

A personal rant, with apologies. Did you see that quote in the Daily Mail about the long awaited Planning Bill?

“A Government source said ministers would be in ‘listening mode’ on the issue when Parliament returns in September, adding: ‘We’ll listen and we’ll move.

‘We can take some of the edges off that are upsetting people and still get some important changes through.

‘The bottom line is we have got to get more houses built. The average age of a first-time buyer is 34. We have to get that down and give younger people a chance to get a stake in society.’”

Listening to whom, do we think? Backbench Conservative MPs of course and voters in relevant constituencies of course. Anyone else? Shrugging shoulders emoji.

Does the Government really believe that it can make changes that materially accelerate the delivery of homes, without upsetting voters and therefore backbench Conservative MPs? (I’m only focusing on the Conservative party because it is in Government – Labour MPs are hardly falling over themselves either to support development in their constituencies, and as for the Liberal Democrats…). I see it all around me, the social norm/knee jerk reaction to a development proposal being to object and being to assume that everyone else will want to object too – whether green field development (it should be on a brown field site) or the development of a brown field site (oh not there, too high, setting, infrastructure etc etc). Of course it is hoped that exhortations as to design will make a difference in making development less unpopular, but, even travelling optimistically, that is going to take a long long time.

So what are the “edges” that are going to be taken off the white paper proposals?

It’s obvious isn’t it? No doubt the idea that national housing targets will actually, perish the thought, have to be planned for by each local authority on a local basis, let alone find their way through to consents and development, isn’t just out of the window, it’s jumped down onto the pavement and skipped half way down the street by now.

“One leading rebel said: ‘If this ends up being a developers’ free-for-all, it will be utterly toxic for Tory MPs everywhere – not just in the South East.

‘If ministers get this wrong we can kiss goodbye to our new electoral success.

‘We will be doing the Lib Dems’ job for them across the Midlands, the South and the suburbs where we’ve had massive growth in recent years.

‘People are fed up. Being seen as the party concreting over our countryside or ramming housing estates into suburban green spaces will be electoral suicide. Boris needs to get a grip on this.’ Rebels want the idea of mandatory house-building targets replaced with voluntary ones.

They also want ministers to drop ‘growth zones’ in which planning applications would be automatically approved.”

Can we be clear: no-one I know in the development and planning world wants a fudged, bodged, old failed ideas re-branded, camel of a Planning Bill. Forget the whole thing rather than waste valuable time on a set of reforms based on political trade-offs and trying to be all things to all people. If as a politician you can’t focus on the objectives – climate change, providing everyone with a decent home, a functioning economy – because you’re just worrying about holding onto power and a job, forget it, don’t even start: with that frame of mind you will make things worse not better.

Without (1) a clear articulation of how many homes need to be built across the country, with a published evidence base to support that number (whether that’s 300,000 a year, or lower, or – probably – higher) and (2) those numbers somehow being divided out across the country without local opportunities for prolonged delays, obfuscation and special pleading (a year on from the white paper it is still really difficult to work out how this can be done), the system will continue to meander on its way – through the interminable plan making local politics, through the lengthy, unpredictable, too detailed and yet too light touch, examinations and through the inevitable court challenges.

The incoming coalition government in 2010 tore up top-down planning, in the form of the regional strategies, before the system even had time to prove itself. Yes it was an slow and over-engineered process, but there was at least the opportunity for democracy at the regional level in setting and apportioning numbers. The return to a bottom up approach, together with the let’s cross our fingers and rely on the duty (not really) to co-operate, and with a semi voluntary, almost unmappable, ad hoc patchwork of local authority combinations and alliances, has led to local plans being mired in endless debates as to numbers. Even with a supposedly standard method for calculating local housing need, those endless debates continue in every green belt local authority area – see Cherwell Development Watch Alliance v Cherwell District Council & Secretary of State (Thornton J, 30 July 2021) for the most recent example.

How are we going to get out of that mire, plan quickly and positively, stabilise spiralling house prices, reduce the age at which adult working offspring can leave the parental home to live somewhere convenient (let alone buy their own home – that’s a first world problem compared to the need for an affordable home in the first place), if local housing numbers are going to be left for local authorities and communities to determine?

Pray tell, “Government source”.

Simin Ricketts, 6 August 2021

Personal views, et cetera

Two great clubhouse Planning Law Unplanned events coming up:

⁃ 6pm Tuesday 10 August: Stonehenge road tunnel consent quashed: why, how, what next – discussion led by junior counsel to Save Stonehenge, Victoria Hutton. Link to invitation here.

⁃ 6pm Tuesday 17 August: AN END TO UGLY: The Office for Place & NMDC unpacked – special guests Nicholas Boys-Smith (chair, Office for Place), Dr Chris Miele (Montagu Evans) and Vicky Payne (URBED). Link to invitation here.