All year we have all been running hard on our individual hamster-wheels, working to each short-term deadline within these elongated processes. The policy twists and turns, to which our work has to respond, have been as dizzying as ever.
There has invariably been something new to write about as I’ve approached the end of the week and thank you all as ever for continuing to read and provide your feedback.
The four most popular Simonicity posts this year were:
I’ve already mentioned Sam’s 50 Shades of Planning. Clenched fist in solidarity as well to Zack Simons’ #Planoraks blog and to Nicola Gooch’s LinkedIn blog posts. I often read what they’ve written and think that I can probably get away that weekend with just posting a link to it and “I agree”.
Zack, Nicola and so many of you have also been generous with your time in appearing on or tuning into the weekly Planning Law Unplanned rooms that I started on the clubhouse app in February, aided and abetted of course by Paul, Charlie, Caroline, Victoria, Jonathan, Jo, Jon, Spencer and George. I have been keen to give a voice to as many people as possible and, through being fleet of foot, to use the slots to explore themes in a way which isn’t possible on other platforms.
The clubhouse app first allowed sessions to be recorded in November. Since then these have been the most popular (do give them a listen):
We haven’t yet decided whether we’ll have a session on 4 January but at 6 pm on 11 January we have a fascinating discussion lined up: “MAKING DRAMA OUT OF A CRISIS: theatre vs covid”, featuring Broadway theatre producer (and ex US environmental lawyer) David Siesko; chair of Shakespeare’s Globe (and former planning lawyer) Margaret Casely-Hayford CBE, and theatre manager/Theatres Trust cultural policy manager Tom Stickland. Link to app here.
If you are dealing with any proposal for a building of six storeys or more in London, R (London Borough of Hillingdon) v Mayor of London (Lang J, 15 December 2021) is a vital case, because it resolves for now the question of how the relevant policy in the London Plan, policy D9, is to be interpreted. Is it right, as have some have contended, that tall buildings may only be developed in locations identified as suitable in boroughs’ local plans? Lang J says no.
The three relevant parts of the policy for the purposes of this issue, as quoted in the case, read as follows:
Based on local context, Development Plans should define what is considered a tall building for specific localities, the height of which will vary between and within different parts of London but should not be less than 6 storeys or 18 metres measured from ground to the floor level of the uppermost storey.
1) Boroughs should determine if there are locations where tall buildings may be an appropriate form of development, subject to meeting the other requirements of the Plan. This process should include engagement with neighbouring boroughs that may be affected by tall building developments in identified locations.
2) Any such locations and appropriate tall building heights should be identified on maps in Development Plans.
3) Tall buildings should only be developed in locations that are identified as suitable in Development Plans.
Development proposals should address the following impacts:
1) visual impacts […]
2) functional impact […]
3) environmental impact […]”
(there is also a fourth part – as to provision for public access).
The big question has been whether the first and second parts of the policy have to be passed before a scheme can be judged as against the detailed criteria in part C.
The text underlined had been added pursuant to a direction by the Secretary of State dated 10 December 2020 before the plan was then adopted on 2 March 2021.
Quoting from the judgment:
“The Secretary of State’s covering letter, dated 10 December 2020, said as follows:
“….. I am issuing a new Direction regarding Policy D9 (Tall Buildings). There is clearly a place for tall buildings in London, especially where there are existing clusters. However, there are some areas where tall buildings don’t reflect the local character. I believe boroughs should be empowered to choose where tall buildings are built within their communities. Your draft policy goes some way to dealing with this concern. In my view we should go further and I am issuing a further Direction to strengthen the policy to ensure such developments are only brought forward in appropriate and clearly defined areas, as determined by the boroughs whilst still enabling gentle density across London. I am sure that you share my concern about such proposals and will make the required change which will ensure tall buildings do not come forward in inappropriate areas of the capital.”
DR12 set out a “Direction Overview” as follows:
“The draft London Plan includes a policy for tall buildings but this could allow isolated tall buildings outside designated areas for tall buildings and could enable boroughs to define tall buildings as lower than 7 storeys, thus thwarting proposals for gentle density.
This Direction is designed to ensure that there is clear policy against tall buildings outside any areas that boroughs determine are appropriate for tall buildings, whilst ensuring that the concept of gentle density is embodied London wide.
It retains the key role for boroughs to determine where may be appropriate for tall buildings and what the definition of tall buildings are, so that it is suitable for that Borough.”
The ‘statement of reasons’ for DR12 stated inter alia:
“……The modification to policy D9 provides clear justification to avoid forms of development which are often considered to be out of character, whilst encouraging gentle density across London.”
The issue had come before the court in the context of planning permission granted by the Mayor of London for the redevelopment of the former Master Brewer Motel site in Hillingdon – a development promoted by Inland Homes for a series of buildings of up to 11 storeys in height. Hillingdon Council had resolved to refuse planning permission on the basis that tall buildings in this location would be contrary to its local plan but the Mayor had recovered the application for his own determination and approved it on 30 March 2021.
There were three grounds to the judicial review brought by the Council:
“i) The Defendant misinterpreted Policy D9 of the London Plan 2021 by concluding that, notwithstanding conflict with Part B of that policy, tall buildings were to be assessed for policy compliance against the criteria in Part C.
ii) The Defendant erred in failing to take into account a material consideration, namely, the Claimant’s submissions and accompanying expert evidence as to air quality.
iii) The Defendant acted unlawfully and in a manner which was procedurally unfair in that he failed to formally re-consult the Claimant or hold a hearing, prior to his re-determination of the application, following the adoption of the London Plan 2021.”
I am only focusing on the first ground but the third ground may also be of interest on the question of when an application needs to be re-consulted upon or re-considered in the light of changes in policy.
The analysis carried out by the judge is interesting.
First of all she considers whether the meaning of the policy was “clear and unambiguous” such that under legal principles of interpretation, the courts should not have regard to extrinsic materials to assist in interpretation. She recorded that “[a]ll parties contended that the meaning of Policy D9 was clear and unambiguous, despite the differences in their interpretation of it. In those circumstances, applying the principles set out above, I consider that I ought not to have regard to the letter from the Secretary of State to the Defendant dated 10 December 2020 (paragraph 46 above) as it is not a public document which members of the public could reasonably be expected to access when reading Policy D9. Furthermore, it is of limited value as, taken at its highest, it sets out the Secretary of State’s intentions, whereas the Court must consider the meaning of the words actually used in Policy D9, as amended by DR12, which in my view did not give effect to the expressed intentions in the letter.”
(I’m scratching my head as to how the various parties to litigation can be arguing as to the meaning of a policy but can agree that the meaning of the policy is “clear and unambiguous”. In saying that the Secretary of State’s direction letter “was not a public document which members of the public could reasonably be expected to access when reading Policy D9”, I take it that she was not saying that it was not a “public document”, which of course it was, but that a member of the public should not be expected to go searching for such documents to assist with interpretation of a policy if it is indeed clear and unambiguous).
She then concludes that the council’s interpretation of the policy “cannot be correct”:
“Read straightforwardly, objectively and as a whole, policy D9:
i) requires London Boroughs to define tall buildings within their local plans, subject to certain specified guidance (Part A);
ii) requires London Boroughs to identify within their local plans suitable locations for tall buildings (Part B);
iii) identifies criteria against which the impacts of tall buildings should be assessed (Part C); and
iv) makes provision for public access (Part D).
There is no wording which indicates that Part A and/or Part B are gateways, or pre-conditions, to Part C. In order to give effect of Mr Howell Williams QC’s interpretation, it is necessary to read the words underlined below into the first line of Part C to spell out its true meaning:
“Development proposals in locations that have been identified in development plans under Part B should address the following impacts.”
But if that had been the intention, then words to that effect would have been included within the policy. It would have been a straightforward exercise in drafting. It is significant that the Secretary of State’s direction only required the addition of the word “suitable” to Part B(3). It did not add any text which supports or assists the Claimant’s interpretation, even though the Secretary of State had the opportunity to do so.
In my view, the context is critical to the interpretation. Policy D9 is a planning policy in a development plan. By section 70(2) TCPA 1990 and section 38(6) PCPA 2004, there is a presumption that a determination will be made in accordance with the plan, unless material considerations indicate otherwise. Thus, the decision-maker “will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it”: per Lord Clyde in City of Edinburgh at 1459G. Furthermore, the decision-maker must understand the relevant provisions of the plan “recognising that they may sometimes pull in different directions”: per Lindblom LJ in BDW Trading Ltd at , and extensive authorities there cited in support of that proposition. As Lord Reed explained in Tesco Stores Ltd v Dundee City Council, “development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another”.
The drafter of Policy D9, and the Defendant who is the maker of the London Plan, must have been aware of these fundamental legal principles, and therefore that it was possible that the policy in paragraph B(3) might not be followed, in any particular determination, if it was outweighed by other policies in the development plan, or by material considerations. It seems likely that policy provision was made for such cases, given the importance of the issue.
In considering whether to grant planning permission for a tall building which did not comply with paragraph B(3), because it was not identified in the development plan, it would surely be sensible, and in accordance with the objectives of Policy D9, for the proposal to be assessed by reference to the potential impacts which are listed in Part C. The Claimant’s interpretation leads to the absurd result that a decision-maker in those circumstances is not permitted to have regard to Part C, and must assess the impacts of the proposal in a vacuum.”
“Notwithstanding the non-compliance with Part B of Policy D9, the Defendant determined that the proposal accorded with the provisions of the development plan when read as a whole. That was a planning judgment, based on the benefits of the proposal, such as the contribution of much-needed housing, in particular affordable housing, and the suitability of the Site (brownfield and sustainable, with good transport). The Defendant was satisfied, on the advice of the GLA officers, that sufficient protection from air quality impacts would be achieved. The Defendant was entitled to make this judgment, in the exercise of his discretion.”
Accordingly, boroughs do not have a veto, by virtue of their local plans, as to where tall buildings may be located in their boroughs – policy D9 is not to be interpreted in a way automatically treats proposals for tall buildings as contrary to the development plan where they are not supported in the local plan.
Whether or not this is what the previous Secretary of State intended with his direction may be another matter but of course the London Plan is adopted and free from the possibility of legal challenge (and, pragmatically, the Secretary of State could have course chosen to call in the application but did not) – and if parts A and B were indeed to be a necessary gateway there would be the immediate issue that any development of buildings of six storeys or more would be stymied as contrary to the development plan until boroughs’ plans had caught up with, and been examined in the context of, the new policy approach – hardly consistent with the Secretary of State’s urging for London to achieve a significant increase in housing delivery.
To mark the end of 2021 and, self-indulgently, the 5th anniversary of my firm, we have a unique Clubhouse event planned for 6 pm this Tuesday 21 December: “START ME UP: how Town Legal started 5 years ago – & why”. There will be a stageful of “day one” Townies: Clare Fielding, Patrick Robinson, Meeta Kaur, Benita Wignall, Spencer Tewis-Allen, our former chairman (and ex Herbert Smith Freehills COO) John Mullins and former associate Ricky Gama (now Leigh Day) as well as our good friends, without whom…, Drew Winlaw (Simmons Wavelength) and Beau Brooke (Kindleworth). If you ever wondered what it takes to create a professional services firm from scratch, do tune in. Link to app here.
“The ambition is to strip back layers of local government and replace them with a single-tier system, as in Northern Ireland, Wales and Scotland, but the government is already braced for a backlash to the plans, according to one senior official.”
“The plans proposed in the draft paper would mean a huge overhaul of local government, and either scrapping or merging England’s 181 district councils and 24 county councils.”
“The step towards single tier local government would need to be under way by 2023 in order to coincide with changes in funding for regions. A new Local Growth Funding Roadmap detailing how this will work will be released in 2022, and then enforced in 2023, according to the paper.”
“The document lays out 13 missions with which to “anchor” the agenda, which the prime minister has described as the central purpose of his administration, and all come with a 2030 deadline.”
“Several parts of the draft paper show that key decisions from the levelling up cabinet committee and the Treasury have yet to be signed off.”
She said she said. Even though she has admitted that she doesn’t like the Beatles, I’m delighted that Catriona has agreed to be our special clubhouse Planning Law Unplanned guest at 6pm this Tuesday 15 December 2021, which will be a great opportunity to see if all of this thinking can come together. Do we need to get back to strategic or at least county level planning, and in place of LEPs something more resembling the old RDAs? I would love you to join us, link to app here.
Got to get you into my life. Do also listen back to our planning enforcement chat last week, now available on replay. Given how the conversation ended up, yes of course we should have called it “Everybody’s got something to hide, except me and my monkey”.
The Environment Act 2021 was born on 9 November 2021, over 22 months after the first version of the Bill received its first reading on 30 January 2020 – a gestation period equalled in the animal kingdom only by the African elephant.
One of the less controversial but potentially most useful elements of the Act is Part 7, namely the introduction of a mechanism for land owners to enter into “conservation covenants”. What is this new beast?
In simple terms, a conservation covenant is a private voluntary agreement between a land owner and a local authority or other responsible body designated by the Secretary of State with commitments given by the land owner, enforceable against successors in title, to do or not do specified things on the land that have a “conservation purpose”.
The Law Commission first recommended in a 2014 report that this regime be introduced in legislation, given that existing legal mechanisms each have significant legal and/or practical limitations, for instance planning obligations need to fall within the types of commitment specified in section 106(1) of the Town and Country Planning Act 1990 and regulation 122 of the CIL Regulations will often be a constraint on the authority’s ability to take the obligation into account in its decision making; restrictive covenants more generally carry with them the constraint of requiring the party with the benefit of the covenant to have an interest in land that will take the benefit of the covenant (the “dominant tenement” as any legal fule kno) and with the covenant having to be a negative obligation in order to be automatically enforceable against successors.
The Commission gave three examples of how conservation covenants might be used:
• “protecting woodland over the generations”
“Example: The owner of an extensive family estate, much of which is forested and used by the public for hiking, intends to leave the land to her children. She wants to ensure that the forest is maintained and that public access continues, but she is not sure that her children – or future generations – would share those priorities”
• “selling heritage property”
“Example: A heritage group has invested funds in buying and restoring a Tudor house. The organisation wishes to sell the property, but wants to ensure that the work it has undertaken, and the heritage value of the property, is preserved.”
• “”protecting a biodiversity offsetting site”
“Example: A local planning authority is faced with a planning application for an affordable housing development. The proposed development site is a wild flower meadow. If the development were to go ahead the meadow would be destroyed completely. In this instance the planning authority is willing to grant planning permission, provided the damage caused to the meadow is offset by the creation and long-term maintenance of a similar site elsewhere.”
DEFRA then carried out a consultation in 2019. Its subsequent response to the consultation process confirmed that it would proceed with legislation, by way of the Environment Bill, and would develop guidance.
The provisions in Part 7 of the Act the provisions do indeed give effect to what was proposed. For a good summary I recommend that you look at the explanatory notes to the Act (pages 132 to 141). Some highlights from that summary:
• It must be apparent from the agreement that the parties intend to create a conservation covenant.
• Any provision must be of a “qualifying kind”, which can take one of two forms. “First, it may require the landowner to do, or not to do, something on specified land in England, or require the landowner to allow the responsible body to do something on such land. Second, it may require the responsible body to do something on such land.” The agreement can also include ancillary provisions.
• The land owner must have a “qualifying estate” in the land – namely a freehold interest or a leasehold estate of more than seven years.
• A conservation purpose “extends to the natural environment of the land, such as plants and animals and their habitats; the land’s natural resources, such as water on the land; the land as a place of archaeological, architectural, artistic, cultural or historic interest; and the setting of the land. The reference to setting provides for the protection of land around a conservation site, which may affect its conservation status. For example, the architectural or artistic value of a country house could derive in part from the landscape in which it is set.” This is important! Conservation covenants are not just about nature conservation but can also be used in relation to, for instance, heritage conservation (see back to that second example from the Law Commission report).
• Bodies (including local authorities) need to apply to the Secretary of State to be designated by the Secretary of State to be a responsible body. If not a local body, the applicant body “will, additionally, have to satisfy the Secretary of State that at least some of its main purposes, functions or activities relate to conservation”. Criteria will need to be published by the Secretary of State. (Interesting that local authorities are not automatically designated).
• A conservation covenant is a local land charge and once registered is effective against subsequent owners of the land. It has indefinite effect unless otherwise stated in the agreement (and subject to the length of the relevant lease if entered into by a leaseholder). Enforcement will usually be by way of seeking an injunction or order for specific performance. It can be discharged or modified by agreement or by application to the Upper Tribunal.
• Section 135 (1) “gives the High Court, the county court or the Upper Tribunal, on application of any person interested, the power to make a declaration as to the validity of a conservation covenant, whether land is subject to an obligation under a conservation covenant, who is bound by or has the benefit of such an obligation, and the true construction (that is, meaning) of such an obligation. It will be for the court or the Upper Tribunal to decide whether an applicant has sufficient interest to make an application. The power to make a declaration extends to any agreement or order that modifies a conservation covenant. A person might seek a declaration under subsection (1) in circumstances where they needed to know the status of a conservation covenant – for example, in order to resist an action enforcing a breach or because the land was wanted for a different use.”
There is no news yet as to when the Regulations will be made to bring Part 7 into force. The biodiversity net gain provisions are likely to be a couple of years away from being switched on. Let’s hope that conservation covenants are not that far off, although of course we do need some good guidance to accompany what could prove to be a well-used procedure, because the opportunities for use of conservation covenants are wide: commitments to provide biodiversity net gain off-site are an obvious example but think also about commitments in relation to offsetting to address nitrate, phosphate or water neutrality for instance, as well as commitments which might previously have involved transferring land to a conservation or heritage group – the land will now be able to be retained with long term commitments given by way of a CC.
This week’s Clubhouse session (6pm 7 December) will be a descent into the strange world of planning enforcement. Whatever your perspective, Scott Stemp and Nicola Gooch will be leading us through the murky depths. Stories welcome. Link to app here.