Month: September 2021

Levelling Up Is…

I’m reminded of those interminable “love is…” cartoons.

Levelling Up is…

…regenerating high streets?

… tackling obesity?

…investing in culture?

…increasing numbers of police officers?

…funding roads?

…establishing freeports?

…local devolution?

et cetera.

Maybe it would be easier to define what it isn’t?

From the ITV website today (24 September 2021): 58% of Brits don’t know what ‘levelling up’ policy is while ministers also unclear, reports find.

See also these tweets today from the Daily Telegraph’s chief political correspondent Christopher Hope (thank you for alerting me, Mike Best):

Congratulations to the 42% in the ITV poll but for the rest of us this is all no surprise. The House of Commons BEIS Committee’s 22 July 2021 report Post-pandemic economic growth: Levelling up lays it bare:

From the introduction:

“On his appointment as Prime Minister in July 2019, Rt Hon Boris Johnson MP said in a speech, on the steps of Downing Street, that he would “answer the plea of the forgotten people and the left behind towns” and “level up across Britain” by unleashing the “the productive power not just of London and the South East but of every corner of England, Scotland, Wales and Northern Ireland””.

From the summary:

“Levelling up—meaning, in our view, the spreading of economic and social opportunities more evenly across the country—is laudable and should be a priority for any Government.

However, whilst recognising the understandable impact the pandemic has had on Government capacity, we are disappointed at how little detail has been put forward to explain what the Government sees levelling up to mean and how it will be delivered.”

“As such, we have made several recommendations to Government, including recommendations to:

• Urgently publish the Levelling Up White Paper, so that we are clear on what the Government defines levelling up to mean and what its priorities are.

• Work with the Office for National Statistics, the Cities and Local Growth Unit in the Business Energy and Industrial Strategy department and the National Audit Office to agree a set of metrics for the routine reporting of progress in delivering levelling up priorities.

• Establish the functioning of a Cabinet Committee on levelling up, that collaborates with devolved, regional, and local leaders.

• Recognise that inequalities exist across the whole of the UK, including within cities, and that levelling up priorities should therefore not be focussed on only some regions or sub-regions of the UK.

• Ensure that each region in England has the capacity to competitively bid for Government funding, given that some areas in England have a greater capacity to engage with Whitehall than other areas.

The levelling up agenda has been described by the Government as its ‘most important mission’. It is now imperative for Ministers to translate this from a political promise into a deliverable programme for Government. The forthcoming Levelling Up White Paper, which we understand will now include the previously announced Devolution White Paper, gives the Government the opportunity to be bold and progressive. We look forward to its publication and, in future, engagement with Ministers on their delivery of levelling up.”

From the main part of the report:

“Giles Wilkes, former industrial and economic special adviser to former Prime Minister Rt Hon Theresa May MP, noted that the Government’s use of the phrase levelling up was so widespread that it had become nothing more than a generic term for “make things better”. Rafael Behr of the Guardian referred to levelling up as a “rhetorical zeppelin”, which was “floating on the political horizon, carrying no cargo of policy”.

“The current available documents on the policy instruments the Government aims to use to level up—the Conservative Party Manifesto, its submission to this inquiry and the 2021 Queen’s Speech—show a wide ranging and disjointed programme of random policies from an obesity strategy, an increase in police officers, to funding on A roads and the creation of Freeports. Although these policies are all very interesting and welcome, it is difficult to see how they all tie together under one over-arching strategy. The cohesion of the whole has not been well described to identify how these fit together. If the Government is serious about levelling up and for it to be a substantive strategy rather than merely a slogan, it must spell out a coherent ‘plan’ as a matter of urgency”

Is this unfair? Possibly not. Motherhood is good and it’s clear from the Conservative 2019 manifesto that levelling up is good:

“Our plan means making sure people have access to world-class public services, that they feel safe on the streets, that working families get to keep more of their own money, and that we help with cost of living pressures.

But it also means making sure that we share prosperity across the country, addressing the longstanding economic challenges in parts of the country. We will invest responsibly and prudently in the infrastructure that can make a difference, and ensure communities in every corner of the United Kingdom are pleasant, safe and prosperous. And we will invest far more in helping workers train and retrain for the jobs and industries of the future. Investing in people, restoring the fabric of our towns and cities, building the homes we need, supporting science and industry, strengthening the great Union between the United Kingdom’s four nations – that is how we will unleash our country’s full potential.”

“…in his first months as Prime Minister, Boris Johnson has set out an agenda for levelling up every part of the UK – not just investing in our great towns and cities, as well as rural and coastal areas, but giving them far more control of how that investment is made. In the 21st century, we need to get away from the idea that ‘Whitehall knows best’ and that all growth must inevitably start in London. Because we as Conservatives believe you can and must trust people and communities to make the decisions that are right for them.”

There is of course the £4.8 billion Levelling Up Fund, announced as part of the 2020 Spending Review. As set out in the March 2021 Levelling Up Fund Prospectus:

“The Fund will focus on capital investment in local infrastructure thereby building on and consolidating prior programmes such as the Local Growth Fund and Towns Fund. It will have a visible, tangible impact on people and places, and support economic recovery. In doing so, it will also create opportunity across the country, prioritising bids that invest in regeneration and growth in places in need and areas of low productivity and connectivity.”

The first round of the fund is focusing on smaller transport projects; regeneration and town centre investment, and cultural investment : £4 billion for England for the next four years to 2024-2025 and at least £800,000 for Scotland, Wales and Northern Ireland. Save in Northern Ireland, funding will be delivered via local authorities. The fund is jointly managed by HMT, DLUHC and DfT.

The prospectus was published alongside a list of local authorities by priority category. There is also a June 2021 prioritisation of places methodology note. The Good Law Project secured permission from Bourne J on 19 August 2021 to take to a full hearing its judicial review of the methodology, which is reported to be based on its allegations that (according to the news piece) “the Government is using the £4.8bn fund to funnel money into regions and towns of political benefit to the Conservative Party. The not-for-profit legal group alleges that the Government is guilty of ‘pork barrel politics’. They cite, for example, the fact that 22 of 26 places that received funds from the Towns Fund are represented by Conservative MPs.”

I won’t comment on that allegation but do note that there is an unusual bidding criterion for local authorities, which gives MPs an important role in the allocation of monies:

“We expect bidding authorities to consult local Members of Parliament as part of their bid; though such support from local MPs is not a necessary condition for a successful bid. MPs can have a positive role in prioritising bids and helping broker local consensus. When considering the weighting given to bids, the expectation is that an MP will back one bid which they see as a priority, and any bid may have priority backing from multiple MPs and local stakeholders. But Members of Parliament may also want to support any or all schemes that would have a benefit to their constituencies in the usual way.”

The levelling up agenda is currently a potent political theme for Conservative MPs, 40 of whom formed a “Levelling Up Taskforce” in September 2020, the launch of which was marked by the publication by Onward of a report by MP Neil O’Brien, Measuring up for levelling up.

Neil O’Brien was subsequently appointed in May 2021 by the prime minister as Levelling Up Adviser. The announcement was made within a 4 May 2021 government press statement which referred to a “landmark” levelling up white paper “later this year, articulating how bold new policy interventions will improve opportunity and boost livelihoods across the country as we recover from the pandemic.” “The White Paper – which will be led by the Prime Minister – will focus on challenges including improving living standards, growing the private sector and increasing and spreading opportunity.” This white paper of course will partly be a rebadged version of the white paper which was originally promised for publication last year on “devolution and local recovery”. As of the date of the press statement, a “new No10 – Cabinet Office Unit [was to] be set up to drive through work on the White Paper.”

I am not sure how much “driving through” has since taken place but Neil O’Brien of course has been now appointed as a minister within the new Department for Levelling Up, Housing and Communities. In the Government’s 19 September 2021 press statement announcing the name of the new Department (massively symbolic in itself) and make-up of its ministerial team it was stated that former Bank of England chief economist (and incoming chief executive of the RSA) Andy Haldane has been appointed as a permanent secretary in the Cabinet Office for six months to “head up the Levelling Up Taskforce that will report jointly to the Prime Minister and the Secretary of State for Levelling Up, Housing and Communities.”

“The Prime Minister, Boris Johnson MP, said:

This government is committed to uniting and levelling up every part of the UK and I am determined that as we build back better from the pandemic we are geared up with the teams and expertise to deliver on that promise.

Andy is uniquely qualified to lead our efforts to raise living standards, spread opportunity, improve our public services and restore people’s sense of pride in their communities. I look forward to working with him, and with my new ministerial team, to deliver the opportunities this country needs.”

Andy Haldane is a serious individual and it is a significant appointment, if only for a short period of time – blink and it’s gone.

I’m sure I’m not the only person utterly frustrated that the main engine of government in our specialist area of interest is now named, for party political reasons, after such an amorphous concept. I’m still not clear as to what levelling up is (or, rather, what it isn’t) but I sense that for the Government it is at the very heart of its political agenda in a way that will define its priorities in terms of housing and economic growth (and therefore its thinking in relation to reform of the planning system). I’m sorry to reduce it to this because the aspirations are, as the BEIS Committee said, laudable but… is it about any less than “making things better” in such a general sense as to be meaningless, or about any more than focusing on issues are relevant to voters in marginal seats in such tactical ways as have no strategic coherence?

Insights very welcome.

Simon Ricketts, 24 September 2021

Personal views, et cetera

For our Planning Law Unplanned clubhouse event at 6pm on Tuesday 28 September, we are picking up on a comment made by DLUHC minister Eddie Hughes this week that there would be a “full review” of the NPPF. Our theme is NPPF “full review”: what to expect in reality/your dreams? and our special guests will include Steve Quartermain, Nicola Gooch and Mike Best as well as our usual stellar panel. Link to app here.

On Reshuffle Day, In Another Part Of The Forest

“If a tree falls in a forest and no one is around to hear it, does it make a sound?”

Maybe the biggest news this week wasn’t the replacement of Robert Jenrick by Michael Gove as Secretary of State for Housing, Communities and Local Government and the consequent likely pause of the still-paused-anyway planning law reforms.

Maybe it was the difficulties which the Government is having with its Environment Bill (original progenitor one M Gove). Aspirations of enactment by the time of November’s COP26 are surely fading fast in the light of a series of defeats for the Government at the report stage of the Bill in the House of Lords. On Monday (13 September 2021) it was already being reported in a Green Alliance blog post, on the back of a Daily Telegraph story, that the Government was reluctant to accept the amendments which had been passed which could ultimately lead to the Bill entering into a period of ping pong (less fun than it sounds) between the Lords and Commons.

The amendments at that stage were reported in this piece: Environment Bill: The 10 government defeats in the Lords (ENDS Report, 14 September 2021). They include:

– making interim targets for nature, air, water and waste legally binding;

– requiring the Government to make a formal declaration of a biodiversity and climate emergency;

– a more ambitious approach to targets in air pollution;

– making soil health a priority;

– removing exemptions for the Treasury and Ministry of Defence from taking into account environmental principles in policy making.

However, on the day of the reshuffle, 15 September 2021 the Lords continued its scrutiny of the Bill and inflicted a further four defeats by way of voting for amendments which in various ways seek to introduce greater environmental protections. Two of the issues are intertwined with matters to do with planning and development and I thought I would give them a bit of airtime – after all, these days can you be a planning lawyer without being an environmental lawyer? And surely DEFRA and MHCLG are going to have to work with each other in ever closer ways.

Habitats Regulations: limits on powers to amend

Baroness Young, chair of the Woodland Trust and former chief executive of the Environment Agency, moved an amendment to ensure “that powers to amend the Habitats Regulations may only be used for the purposes of environmental improvement following consultation. It ensures that the level of environmental protection that must be maintained includes protection for important habitats, sites and species as well as overall environmental protection”

It was passed 201 to 186.

The amendment provides that the Secretary of State may only amend the regulations

“for the purposes of—

(a) securing compliance with an international environmental obligation, or

(b) contributing to the favourable conservation status of species or habitats or the favourable condition of protected sites;

(c) if the regulations do not reduce the level of protection provided by the Habitats Regulations, including protection for protected species, habitats or sites; and

(i) following public consultation and consultation with—

(ii) the Office for Environmental Protection,

(iii) Natural England,

(iv) the Joint Nature Conservation Committee, and

(v) other relevant expert bodies.”

Duty to implement an enhanced protection standard for ancient woodland in England

Baroness Young moved an amendment “intended to address the more than 800 ancient woodlands in England that are currently threatened by development. As a large number of these threats result from indirect effects of development next to ancient woodland, these changes will improve the weight afforded to protecting these irreplaceable habitats in planning policy.”

It was passed 193 to 189.

The amendment introduces the following additional clause into the Bill:

(1) The Government must implement an enhanced protection standard for ancient woodland, hereafter referred to as the “ancient woodland standard” in England as set out in subsections (2), (3) and (4) and this must have immediate effect.

(2) The ancient woodland standard must set out the steps necessary to prevent further loss of ancient woodland in England.

(3) The ancient woodland standard commits the Government to adopting a Standard of protection which must be a requirement for all companies, persons or organisations involved in developments affecting ancient woodlands in England.

(4) This standard must be that—

(a) any development that causes direct loss to ancient woodland or ancient woodland and ancient and veteran trees must be refused unless there are wholly exceptional reasons and, in addition, a suitable compensation strategy must be in place prior to development commencing,

(b) any development adjacent to ancient woodland must incorporate a minimum 50-metre buffer to provide protection, reduce indirect damage and provide space for natural regeneration,

(c) any ancient or veteran trees must be retained within a development site, including a root protection area and appropriate buffer zone.

(5) This buffer zone must be whichever is greater of—

(a) an area which is a radius of 15 times the diameter of the tree with no cap, or

(b) 5 metres beyond the crown.”

The debate is here and Parliament’s summary of the House of Lords report stage is here.

(Incidentally, Ruth Keating (39 Essex Chambers) gave a very clear summary of the Environment Bill at today’s (virtual) Joint Planning Law Conference. Watch out for the paper in due course.)

As a further indication of how environmental matters are going to take centre stage in coming months, Duncan Field brought to my attention yesterday that Lord Frost made a statement to the House of Lords (16 September 2021) as to the Government’s approach in relation to various areas of retained EU law. A supporting paper, Brexit opportunities: regulatory reforms contains references which may be of interest to those in the planning and environmental areas:

“Environmental Licencing [sic] and Permitting – Defra is continuing to rationalise the existing Environmental licensing and permitting (ELP) regimes so they are more streamlined and easier for businesses and users to navigate, whilst maintaining and even enhancing environmental protections.

Promote a flexible, market-based trading system for biodiversity offset credits – Biodiversity Net Gain (BNG) is a critical part of Defra’s strategy for enhancing the natural environment and promoting sustainable growth. Defra will shortly be publishing a consultation on our plans for implementing BNG. This consultation will include proposals for a market-based approach to delivery of biodiversity offset units.”

That latter is interesting in the context of the biodiversity net gain provisions within the Environment Bill, which do not currently refer explicitly to any notion of a structured “market-based trading system for biodiversity offset credits”.

Keep your ears open is all I’m saying…

Simon Ricketts, 17 September 2021

Personal views, et cetera

And on the theme of ears, do join our clubhouse Planning Law Unplanned event at 6pm this Tuesday 21 September 2021, whether to listen or participate. We will be returning to the big news story and associated question – “ALL SYSTEMS GOVE! What to expect from our new Secretary of State?”. We have a planoply of leading commentators lined up to give their views including Catriona Riddell, Matthew Spry, Zack Simons, Wyn Evans and Nick Cuff as well as our usual planel. Link to app here.

Photograph by Michael Aleo courtesy of unsplash

Thanks to my colleague Stephanie Bruce-Smith for some background research. All errors mine.

Sad When Our Planning System Is Media Laughing Stock

It was hard not to laugh – and back in February 2021 laughs were in short supply. But that Handforth Parish Council viral video was also deeply depressing as a vignette of the planning system in action and hardly a recruitment drive for parish councils.

This has been another bad week for the planning system in the media.

“Your proposal is whack”

‘Your proposal is whack’: Chaos as ‘junior worker’ who thought he was testing dummy council website rejects and approves REAL planning applications – including allowing two pubs to be demolished – but they’re all legally BINDING (Daily Mail, 9 September 2021):

• “Staff at Swale Council, Kent accidentally rejected or approved five applications

• Blunder was made by a ‘junior’ staff member at Mid Kent Planning Support team

• The person was trying to resolve software issues, but in doing so, five ‘dummy’ decisions, used to test the website was working, were accidentally published

• Among them included the rejection of an animal sanctuary to stay on its site

• Two Kent pubs were also given permission to be demolished or part-demolished

• A butcher’s change-of-use application in Sittingbourne was turned down

• A farm was granted planning permission with 20 conditions, listed just as 1 – 20”

It’s certainly not very clever that anyone untrained was left unsupervised with access to the business end of the local planning authority’s IT system. This has obviously caused a big legal mess. Nicola Gooch sets out the law in her 10 September 2021 LinkedIn blog post.

Older lawyers can’t help thinking in Latin, unwelcome in the courts these days but handily concise:

• Functus officio – the LPA has made its final decision (to issue the planning permission or refusal notice) and can’t re-open it.

• Administrative decisions are very rarely treated by the court as void ab initio (of no legal effect from the date they were purported to be made, even without a quashing order from the court), no matter how absurd – it takes a formal application to the court for judicial review to undo the mistake by quashing the decision, enabling it to be re-taken.

Accordingly, even with no arguments being made to the contrary by any interested parties, proceedings will need to be issued in the High Court on behalf of the council, a consent order agreed by the parties and then (usually after a wait of several weeks) rubber-stamped by the court – much money and much time wasted.

As Nicola identifies, this is by no means the first example of this sort of thing, although I do find it bewildering – was each decision not only generated by the system but then actually transmitted, without approval of a senior officer with the necessary delegated authority?There is surely a failing in the council’s internal system.

Local Government Lawyer reported in November 2020 as follows on the South Cambridgeshire examples she mentions:

“South Cambridgeshire District Council is to commence proceedings in the High Court after discovering two planning permission errors.

The local authority said one mistake had led to planning permission for an extension and annexe in Steeple Morden being issued in error. The permission was granted despite the application still being open for people to comment on.

“This planning decision, issued without the relevant authorisation, was caused by human error when the wrong box was ticked on the planning computer system,” it explained.”

“The second case saw a planning permission being issued without the accompanying conditions. It related to the landscaping, layout and other details around eight new homes in Great Abington.”

Another mistake was the subject of a ruling by the Scottish Court of Session (Outer House) in Archid Architecture and Interior Design v Dundee City Council (20 August 2013). The Council had intended to refuse an application but instead granted planning permission but with reasons for refusal. It tried to get away with simply issuing a second notice, refusing permission. However, the applicant succeeded in obtaining a declaration from the court upholding the validity of the first notice. The court decided that a decision issued by a planning authority, however legally flawed, is to be treated as valid unless and until it is overturned in court proceedings.

When taken to extremes, this does start to look absurd. Whilst of course people should be able to rely on a planning permission or refusal notice that on the face of the document looks legitimate, the concept is strained when you have a refusal notice with the reason for refusal being “No mate, proper Whack” or, in another Swale example, a planning permission issued with the conditions: “(2) Incy (2) Wincy (3) Spider”. What if he or she had issued a planning permission for development in another district – in South Cambridgeshire, say – would that also be valid until quashed?

Any argument for the “voidable not void” approach on the basis that there needs to be certainty in the system (that a permission is valid until quashed, and that there is a short deadline for legal challenge after which the permission can be relied upon as valid) begins surely to lose some legitimacy when planning permissions are quashed after many years as happened in the Thornton Hotel case I mentioned in my 7 April 2018 blog post Fawlty Powers: When Is A Permission Safe From Judicial Review or this year’s Croyde Area Residents Association, R (On the Application Of) v North Devon District Council (Lieven J, 19 March 2021) where a 2014 planning permission was quashed that had mistakenly authorised development in relation to a wider area than had been intended.

“I hope Al Qaeda bombs the f…… ugly thing”

Chaotic scenes at planning meeting as anger erupts over new West Hampstead development (Camden New Journal, 9 September 2021). The video of two local objectors screaming vitriol at Camden’s Planning Committee last night makes uncomfortable viewing. If you want to understand what the scheme actually was, perhaps read the officer’s report (from page 191) in relation to the application and in particular the plans and images from page 235 to page 257. In my view it is an excellent scheme but that’s nothing really to do with it – there was no excuse for that reaction. We are all entitled to our own views but it is depressing that individuals feel driven to scream at their locally elected representatives like this. I do not use the often unfairly insulting and counter-productive “NIMBY” insult, but you can see why people do.

By this afternoon, the Secretary of State himself was tweeting about it:

And the planning system’s journal of record was of course also soon on the band wagon, ‘I hope Al-Qaeda bombs the f***** ugly thing!’: Moment two women yell abuse at Camden Council bosses for approving four new homes and turning area into a ‘s**t-hole’ before one hurls CHAIR during live-stream meeting (Daily Mail, 10 September 2021).

None of this is healthy.

Simon Ricketts, 10 September 2021

Personal views, et cetera

Thank you to everyone who attended our fantastic Clubhouse event last week with Graham Stallwood, Bridget Rosewell, Alice Lester and James Cross. It was a hard one to beat. This week’s will be a more informal session – do turn up if you would like to say hello – and maybe join some chat about what’s happening in the literally whacky world of planning. Link here.

This Is Not A Blog Post

Faithful reader, life’s hard enough and I’m giving you another week off from a proper blog post. However…

The High Court rulings and planning appeal decisions keep coming and it’s worth subscribing to the Town Library free weekly updates for those, including great summaries of every High Court ruling, prepared by my Town Legal colleagues.

I know I go on about clubhouse but do join one of our Planning Law Unplanned sessions if you can. I suppose that in tone it’s a cross between a live podcast (there’s no subsequent recording – miss it and it’s gone), a radio phone-in show and an after-work chat in the pub around a (large) table. Clubhouse recently upgraded their audio system to what they call spatial audio and if you listen now on earphones on an iphone or ipad you’ll notice that there is indeed the sense that you are in a room with the voices coming from different directions, as if around the table.

This Tuesday’s (7 September 2021, 6 to 7.15 pm) is genuinely unmissable: “Planning application/appeal timescales – tell us your tales”. It follows on from my last blog post, How Long Has This Been Going On and features the following special guests: Graham Stallwood (director of operations at The Planning Inspectorate), Bridget Rosewell (chair of the 2018 independent review into planning appeal inquiries), Alice Lester (director regeneration at Brent Council) & James Cross (strategic sites project planner, Arun District Council).

Timing is all, so they say. What are people’s current experiences of “the system”, good & bad?

In relation to appeals, PINS these days publishes excellent data but where are the pinchpoints that people experience in practice (without referring to specific cases)? Post lockdown, are we now on our way back to the improved timescales for appeal inquiries that were being achieved as a result of the Rosewell reforms? What about hearings and written reps appeals? How are we finding the move back from wholly screen-based events?

In relation to applications, what approaches by applicants and/or LPA can help avoid undue delays? How can we speed up negotiation of section 106 agreements? What is the role for pre-app discussions and early public engagement?

Please join us for a good-natured, positive but hopefully probing session. You are free just to listen or to participate in the discussion. Indeed we would love to hear your tales, of woe or joy! Link to app here.

Finally, clubhouse obviously is a platform for all sorts of discussions on all manner of topics. Nothing to do with work – any reference to planning or law, or indeed whatever work you do, is entirely banned – but tomorrow evening (Sunday 5 September, 8 pm) a few of us are hosting the third in an occasional series of events I’ve called Sound Recommendations, which is basically just chats about music, around a theme, as a result of which we put together a spotify playlist of what’s been mentioned (search for Sound Recommendations #1 and #2 on spotify). Tomorrow night’s theme is: “GIGS: first, best, last, next”. Do join us for that one too! Link here. (And if you’re only reading this after the event you’ll have to console yourself by searching for the Sound Recommendations #3 playlist).

Maybe next week I’ll get round to a proper post again….

Simon Ricketts, 4 September 2021

Personal views, et cetera