Month: January 2023

Thank You Mikael Armstrong: New Case On Scope Of Section 73

Thank you also to my Town Legal partner Patrick Robinson who spotted this hand-down yesterday from the Planning Court: Armstrong v Secretary of State (Deputy High Court Judge James Strachan KC, 27 January 2023). 

Who is Mr Armstrong? Well Mr Armstrong had the benefit of a planning permission for the erection of a new dwelling in Cornwall with the wonderful address of The Beach House, Finnygook Lane, Portwrinkle. The planning permission dated back to 2007 but had been kept alive by way of minor implementation works. 

A house had previously stood on the site. This photograph from the application documentation on Cornwall Council’s planning portal gives a sense of its dramatic location:

Mr Armstrong made an application under section 73 of the Town and Country Planning Act 1990 to vary the approved scheme, by way of amendment of a condition which listed the approved drawings (a condition which had been added by way of section 96A, to enable use of section 73 – the now familiar approach following Finney (if any non planners or planning lawyers are still reading, you must think we are all mad)). 

The application was refused by Cornwall Council, with one reason for refusal:

“The proposed development seeks to change the design of the dwelling approved via, E2/06/01798/FUL, from an irregularly-shaped boldly modernist dwelling to a dual-pitched alpine lodge style dwelling. The application site occupies a highly prominent and sensitive coastal plot. The proposed revised design completely alters the nature of the development and would result in a development that would differ materially from the approved permission. As a result this proposal goes beyond the scope of Section 73 of the Town and Country Planning Act 1990 and is contrary to guidance within the National Planning Practice Guidance, specifically paragraph 001 Reference ID: 17a- 001-20140306.”

There are these images of the approved and proposed schemes, courtesy of Cornwall Council’s planning portal:

(Whilst not relevant to the legal issues, I note that the proposed revisions to the scheme would cause it more closely to resemble the dwelling that had previously been on the site). 

Mr Armstrong appealed. His appeal statement made these (entirely correct) points:

“a. although an application under section 73 of the 1990 Act is sometimes referred to as an application to make a “minor material amendment”, the terms of section 73 of the 1990 Act are not limited in that way and place no restriction on the magnitude of the changes that can be sought;

b. reference had been made by the Courts in the consideration of section 73 of the 1990 Act to not permitting amendments which amount to a fundamental alteration to the terms of a planning consent, but there was nothing of a fundamental nature such as scale, size, massing or footprint and positioning on the Site which would result in any significant change;

c. section 73 applications still receive the same amount of scrutiny as a full planning application and the process does not prejudice the ability for relevant parties to make representations”.

The appeal was determined by way of written representations. The inspector determined the main issue to be: “whether the proposal could be considered as a minor material amendment under section 73 of the TCPA 1990“.

(Alarm bells already…)

The inspector’s analysis includes the following passages:

“The original planning permission was for a bespoke dwelling in a contemporary architectural style, with the external materials being natural stone and cedar cladding. The approved plans show a multi-faceted building, with an organic form, including curved walls and sedum-covered roofs. By contrast, the proposed plans submitted with the section 73 application show a dwelling with a simple rectilinear form, rendered walls and a pitched slate roof. Consequently, although it is similarly sited, and has a comparable floorspace and volume, it is fundamentally different in its design, bearing virtually no resemblance to the approved building. The modifications are, therefore, substantial.


The appellant contends that the term “minor material amendment” infers that material changes are allowable under a section 73 application. However, the word “minor” qualifies the extent to which material changes should be considered via this route. In this case, the wholesale redesign of the house results in a development that would be of a substantially different nature than the one originally approved. In these circumstances, the PPG advises that a new planning application is necessary.”

He dismissed the appeal. 

Thankfully, Mr Armstrong didn’t give up on the entire pettyfogging planning system at that point but, as a litigant in person, challenged the decision in the High Court. 

And, as was only right in the face of this sort of reasoning from the inspector, he won! And in so doing, has provided further judicial authority for what planning lawyers end up saying again and again – the limits of section 73 are not confined by the question of whether there would be a minor material amendment to the approved scheme, but whether there would be a fundamental variation to the approved scheme (as that is the test previously set down in Arrowcroft and subsequent cases).

Deputy High Court Judge James Strachan KC’s gave no fewer than eight reasons why the inspector’s decision was unlawful:

“First, I consider the correct starting point must be the words of section 73 of the TCPA 1990 itself. As the Defendant accepts, there is nothing in section 73, or in the TCPA 1990, that limits its application to “minor material amendments”, or to amendments which do not involve a “substantial” or “fundamental” variation. On the face of the words used, s.73 applies to any application for planning permission for development of land “without complying with conditions subject to which a previous planning permission was granted” (see s.73(1)). It limits the local planning authority’s consideration to the “question of conditions subject to which planning permission should be granted (see s.73(2)). There are other limitations as to its scope such as those in ss73(4) and (5), but they are not engaged here. There is nothing in the language used that restricts an application to vary or remove a condition to “minor material amendments”, or to what a decision-maker considers to be a “non-fundamental variation”. I accept that the absence of such a limitation on the face of the statute does not automatically mean that such limitations cannot arise as a matter of statutory interpretation, in accordance with well-established principles requiring one to consider the meaning of a statute and its statutory purpose. However it is an important starting point that, on the face of the statute, provided the application is limited to non-compliance with a condition (rather than any other part of the permission) it falls within the stated scope of s.73 of the TCPA 1990.

Second, as now properly understood in light of Finney, the requirement that a s.73 application be confined to applications for non-compliance with a condition is significantly restrictive in and of itself. There is no obvious need, justification or statutory purpose for reading in additional restrictions which are not expressed on the face of the statute. Finney confirms that section 73 cannot be used to vary the operative part of a planning permission. It is a section concerned with non-compliance with condition, rather than the operative part of a permission. One therefore cannot use s.73 to vary or impose a condition where the resulting condition would be inherently inconsistent with the operative part of the planning permission; that would also involve effective variation of the operative part of the planning permission as well. That point was exposed clearly in Finney where the resulting varied condition caused the Inspector to omit the conflicting words in the description of development in her decision. The power under s.73 is therefore a limited one (as briefly observed in Hillside). But in such circumstances, it is difficult to see why it is necessary to introduce or read in further limits on its scope which are not otherwise expressed in the section itself. If, as accepted to be the case here, an application for non-compliance with a condition does not lead to any conflict or inconsistency with the operative part of the permission, it is difficult to see why it is objectionable in light of the statutory purpose of section 73 and the TCPA 1990 itself.

Third, section 73 is clearly intended to be a provision which enables a developer to make a section 73 application to remove or vary a condition, provided of course that the application does not conflict with the operative part of the planning permission. Any such variation application will be subject to the necessary procedural requirements for its consideration which, for example, enable representations to be received. If Parliament had intended the power to restrict its application further (for example to limit it to “minor material” amendments to a condition, or non-fundamental variations to a condition) one would have expected that to be expressed in the language used and it could readily have done so.

Fourth, and linked to the preceding point, the wording of section 96A of the 1990 Act is informative as part of the statutory context. Unlike section 73 which limits its application to conditions, section 96A was introduced as a power to amend a planning permission generally (including the operative part of the permission). But in introducing that power that is applicable to any part of a permission, Parliament expressly constrained its scope to “non-material amendments”. By contrast, no such limitation has been imposed on the scope of s.73 where it is applicable, but with the fundamental difference that s.73 is confined in scope to applications for non-compliance with conditions (rather than non-compliance with the operative part of a permission). From the perspective of statutory interpretation taking account of the statutory context, this is yet a further indication that if Parliament had wished to limit the power under s.73 to “minor material amendments” or so prevent “fundamental variations” to conditions, it would have done so expressly.

Fifth, the effect of giving the words used in s.73 their plain and ordinary meaning so as to allow an application to be made for non-compliance with any planning condition which is not in conflict with the operative part of permission does not, of course, dictate the outcome of that application. It simply means that the application can be entertained. Any such application would then fall to be determined on its planning merits. In this case, for example, the Inspector considered there to be a fundamental difference in the proposed aesthetics of the design shown in the drawings identified in Condition 10 and the proposed plans. That may well be the inevitable result of an application made under s.73. But provided there is no inherent conflict or inconsistency with the “operative part” of the planning permission – in this case the construction of a single dwelling – the planning merits of that proposed change can be assessed on its merits. No such assessment has occurred. As part of that assessment, the decision-maker will be able to consider whether the proposed change (fundamental or otherwise) is acceptable or not in planning terms, taking account of any representations received.

In this respect, I recognise that in Finney, arguments as to the ability to consider the merits of s.73 application in this way (with attendant publicity) was not seen as a factor justifying giving s.73 the more expanded interpretation that the developer and Welsh Ministers had advocated in that case. There is an important difference. There, such arguments were advanced to try and justify giving s.73 a more extended interpretation than its words supported so as to permit effective changes to the operative part of a planning permission. Here, the situation is reversed. The ability to consider the merits of any change to a condition that falls within the ordinary and natural scope of the language used in s.73 points away from the need to read in additional restrictions to the scope of the statutory provision.

Sixth, I do not consider that any of the caselaw materially supports the Defendant’s attempt to restricting the scope of s.73 to “minor material amendments” or non-fundamental variations where there is no conflict with the operative part of the permission. To the contrary, it is more consistent with giving the words of s.73 their plain and ordinary meaning.

….

Seventh, if I am wrong and section 73 is implicitly qualified so as to preclude applications which do not involve any conflict with the operative part of a permission, but do involve what the decision maker considered to be a fundamental variation, I am not convinced that the Inspector has properly addressed the question of what would constitute a fundamental variation in this context.

…

Eighth, even if a test of fundamental variation is a lawful one to apply, I am not persuaded that the Inspector applied such a test in this case. In my judgment there is more than sufficient doubt about that to justify quashing the decision on the basis that he misdirected himself by reference to the PPG and its concept of “minor material amendments”.”

The inspector’s decision letter was quashed and the appeal will now be redetermined. Stick with it, Mr Armstrong. 

NB For further background on the procedures available for amending schemes, see my 14 January 2023 blog post Greater Flexibility For Planning Permissions (Now I’m Just Showing My Age).

Simon Ricketts, 28 January 2023

Personal views, et cetera

Mission Zero Needs Planning

I think I can point to something good that came out of Liz Truss’s premiership.

On 26 September 2022 she appointed former energy minister Chris Skidmore MP to carry out an “Independent review of net zero delivery by 2050 aims to ensure delivery of legally-binding climate goals are pro-growth and pro-business” and to “scrutinise green transition to make sure investment continues to boost economic growth and create jobs as well as increase energy security”.

Some of us may have feared the worst as to what lay behind this. Was the intention to back-end progress on the net zero by 2050 target?

The final report, Mission Zero: Independent Review of Net Zero, was published on 13 January 2023. I’m no expert but it seems to me – and to many better-informed commentators (although some of course express disappointment that the recommendations could be more radical) – to be a remarkably thorough and practical piece of work – running to 340 pages of waffle-free analysis and recommendations, with (such is the modern way of these things):

  • 7 conclusions
  • 10 priority missions
  • 6 pillars
  • A “25 by 2025” set of recommendations

It only needed a golden thread and … bingo!

There is this good House of Lords library summary published on 20 January 2023 ahead of a short debate on the document that is due to take place on 26 January 2023.

Actually, if one looks more closely, there is a golden thread to the report: the need for urgent reform of the planning system so as to make the path to decarbonisation smoother and faster.

From the paragraph 12 of the executive summary:

“We have made great progress decarbonising already with success stories in offshore wind and electric vehicles and it is essential we continue these. However, too often, we heard of problems hampering business and local areas from going as far and as fast as they want to. Whether it is lack of policy clarity, capital waiting for investible propositions, infrastructure bottlenecks, or delays in the planning system, it is clear that we need action to catalyse the deployment of clean solutions, particularly if we want British companies to capture the economic benefits.”

See priority mission 7: ““unblocking the planning system and reforming the relationship between central and local government to give local authorities and communities the power they need to act on net zero”.

From pillar 4, “Net Zero and the Community”:

“There is plenty of regional, local and community will to act on net zero, but too often government gets in the way. The UK government must provide central leadership on net zero, but it must also empower people and places to deliver. Place-based action on net zero will not only lead to more local support but can deliver better economic outcomes as well.

Key recommendations

1. Government should simplify the net zero funding landscape by the next Spending Review

2. Government should fully back at least one Trailblazer Net Zero City, Local Authority and Community, with the aim for these places to reach net zero by 2030

3. Government should reform local planning and the National Planning Policy Framework now”

See recommended action 21 in the “25 by 2025” list:

“Local and regional Reform the local planning system and the National Planning Policy Framework now. Have a clearer vision on net zero with the intention to introduce a net zero test, give clarity on when local areas can exceed national standards, give guidance on LAEP, encourage greater use of spatial planning and the creation of Net Zero Neighbourhood plans, and set out a framework for community benefits.”

See also commentary like this:

“Planning system presents major barrier to net zero action. View of system on net zero is unclear and does not give sufficient weight to net zero as a national priority. Often slow and difficult to navigate, especially for individuals and communities.

Central government should reform the local planning system and the NPPF now. Have a clearer vision on net zero with the intention to introduce a net zero test, give clarity on when local areas can exceed national standards, give guidance on LAEP, encourage greater use of spatial planning and the creation of Net Zero Neighbourhood plans, and set out a framework for community benefits. Government should undertake a rapid review of the bottlenecks for net zero and energy efficiency projects in the planning system, and ensure that local planning authorities are properly resourced to deliver faster turnaround times”

“817. While the National Planning Policy Framework (NPPF) references climate change, it does not reference net zero specifically and the Review heard that the vision of the planning system on net zero is not clear. Too often there are conflicting or unclear messages, with important points relegated to footnotes.

818. The planning system should be an essential tool in delivering the changes needed for net zero. A system that appears ambivalent to net zero will not be capable of delivering the scale of change required.

819. The planning system should move towards implementing a test for all developments to be net zero compliant, ensuring enough lead-in time to prevent adverse economic consequences or stalling of current development plans. Across the economy the cost of building to net zero standards and using net zero technologies is coming down. Providing clarity and certainty on net zero requirements in the planning system could help drive further action and build supply chains, making net zero development the norm.

“Planning can be a driving force for not only net zero but for growth as well, helping to unlock opportunities across the country […] The reputation of planning in the UK would only be furthered if it were given the ability and position to be a key driving force for net zero. Our own research suggests that planning brings in millions to the UK and has the potential to have a much larger impact if the passion and expertise of our consultancies both large and small were showcased as one of our key exports” – the Royal Town Planning Institute.

820. There is also confusion over whether, where and how local authorities can exceed national standards on planning. The litigious nature of the planning system means local authorities are often unwilling to take risks, and so the system effectively puts a ceiling on local ambition.

821. For example, the Review heard from several stakeholders about the difficulty faced by West Oxfordshire District Council in their plans for the Salt Cross Garden Village.568 The Council had proposed that development at Salt Cross would be required to demonstrate net zero carbon, with submission of a validated and monitored energy strategy. However, in May 2022 the Planning Inspectorate provisionally found that such a policy was not ‘consistent with national policy or justified’ and the plan was modified as a result. This is a clear example of the planning system being unclear in its support for net zero.

“Local authorities are wary of the threat of legal challenge, this means to make confident use of their powers, they have to undertake rigorous legal checks, which slows delivery, adds expense and makes some of them risk averse” – Climate Change Committee (CCC).

822. Similarly, some local authorities felt that planning requirements on viability presented a hindrance to net zero development. These local authorities felt that some developers use viability requirements to reject proposed net zero improvements. These local authorities suggested that such viability considerations should be reformed or scrapped, and that net zero should be a fundamental consideration when determining the viability of a project. Current guidance states that viability assessments “should not compromise sustainable development.” This language should be strengthened to ensure that viability assessments actively encourage sustainable and net zero developments, and that assessments take a longer-term approach to determining what is viable.

823. Reforms to the planning system should therefore make it clear when local authorities can exceed standards and provide guidance on how local areas could go further should they wish to.”

(and there is more, through to paragraph 836 in the document, but you get the picture).

So how joined-up is this with current proposals to reform the planning system?

Of course, changes are proposed to the climate change section of the NPPF (part of chapter 14), although they are relatively limited.

Changes are proposed to speed-up NSIPs.

There are the proposals identified in chapter 7 of the  Government’s consultation paper on proposed reforms to the planning system.

In summing up on behalf of the Government at the end of the House of Lords second reading debate on the Levelling-up and Regeneration Bill on 17 January 2023 Baroness Scott said this on climate change:

“The Government recognise the challenge of climate change. It is critical that the planning system must address this effectively. Through the Climate Change Act 2008 the Government have committed to reduce emissions by at least 100% of 1990 levels by 2050 and to produce national adaptation programmes every five years that respond to economy-wide climate change risk assessments. The Bill sets out that local plans “must be designed to secure that the development and use of land in”— the local planning authority area — “contribute to the mitigation of, and adaptation to, climate change.”

Our new outcomes-based approach to environmental assessment will ensure that the ambitions of the Environment Act and the 25-year environment plan are reflected in the planning process, placing the Government’s environmental commitments at the centre of decision-making.

The National Planning Policy Framework is already clear that plans should take a proactive approach to mitigating and adapting to climate change, taking into account the long-term implications for flood risk, coastal change, water supply, biodiversity and landscapes, and the risk of overheating from rising temperatures, in line with the objectives and provisions of the Climate Change Act 2008. The National Planning Policy Framework must be taken into account in preparing the development plan and is a material consideration in planning decisions. This includes the framework’s current policies related to climate change mitigation and adaptation. Furthermore, as committed to in the net-zero strategy, we will carry out a full review of the National Planning Policy Framework to ensure it contributes to climate change mitigation and adaptation as fully as possible. This will be consulted on as part of wider changes to the National Planning Policy Framework to support the ambitions in the Levelling-up and Regeneration Bill.”

Does this go far enough? Chris Skidmore’s report is a useful reminder of the importance of a properly functioning, resourced and managed planning system and I hope he has a hand in shaping the current reforms.

Simon Ricketts, 21 January 2023

Personal views, et cetera

Greater Flexibility For Planning Permissions (Now I’m Just Showing My Age)

Such a lot of hyperbolic talk and not enough doing.

The Conservatives’ Open Source Planning 2009 manifesto document started with this passage:

“The planning system is vital for a strong economy, for an attractive and sustainable environment, and for a successful economy. At present, the planning system in England achieves none of these goals. It is broken”.

And then Boris Johnson in the foreword to Planning for the Future (August 2020):

“…we approach the second decade of the 21st century [the incredible potential of this country] is being artificially constrained by a relic from the middle of the 20th – our outdated and ineffective planning system.”

Well fix it, dear Henry, dear Henry, as the old song went. But, of course, it wasn’t broken in 2009 and it – just about – wasn’t outdated or ineffective in 2020. In 2023? I’m not so sure.

Given that the Government is currently refusing to accept there is an NHS crisis, I wonder if it would still accept that there is a housing crisis? Is it concerned by the number of local authorities deciding to pause or abandon preparation of their local plans? I’m genuinely unsure.

But let’s ignore for the moment the political direction in which this old vehicle should be headed and look instead at how the engine is working – can it actually deliver us to wherever it is we want to go?

Instead, let’s just focus on development management for a moment. In what should be a straightforward matter of processing, in accordance with statutory timescales, planning applications so as hold firm against the unacceptable and to approve the rest without delay , in form that that can lead to development taking place, and the public benefits which flow from that, there are currently at least two really horrible feedback loops, or vicious circles, that are holding back even the best projects:

  • Under-resourced planning departments, precautionary in nature, burdened with being the custodians of so many different policy objectives (climate change, health, building safety, beauty, air quality – you name it), take increasingly longer to process applications and their members’ decision-making is increasingly unpredictable (heads turned by lobby groups and hints from Government as to changing approaches). This leads to more applicants deciding to appeal so as to achieve a certain timescale and objective consideration of the issues. This places more work on officers, slowing down consideration of other applications. Which then also end up at appeal. And the slower the application and appeal process, the more likely that new issues arise, sending the applicant back to an earlier stage in the process again.
  • The demands on an applicant to tie down elements of a project at too early a stage, together with short implementation timescales and uncertain processes for processing scheme changes, lead to much unnecessary activity both in (a) keeping planning permissions alive with relatively minor works so that a permission that has taken years and a huge amount of money to achieve is not prematurely lost before the development is in a position to proceed and in (b) using clunky work-arounds – various combinations of section 96A, section 73 and/or drop-in applications – in order to refine proposals so that the permission is for a development which can actually be built. The longer the process for securing planning permission in the first place, the more likely that the resultant planning permission will need to be varied. The more certainty that the authority seeks to achieve with tightly drawn development parameters and a long list of planning conditions, the more likely that changes will be required.

I suspect that the Government is unaware of the true extent of the issue. I was looking at the latest statistics from December 2022. 86% of major applications last year were apparently determined “within 13 weeks or agreed time limit”. “or agreed time limit” is the clue, with time extensions routinely agreed so as to safeguard against premature refusal. Can anyone find where in the tables one might find how long an application for planning permission takes on average, from submission (usually after a lengthy and expensive pre-app process) to completion of section 106 agreement?

Another awkward reality to introduce at this point: projects need to be viable in order to proceed. Private sector development will not take place unless, broadly speaking, (1) the land owner will be paid by the developer an amount sufficiently above existing use value to make it make it worth his or her while to sell, and above what the land may be worth for any other development which could be carried out on the land (2) the developer can achieve a profit which makes undertaking the development commercially worthwhile, having regard to the financial risks inherent in the project, and can be sufficiently confident that there will be a market for the end product and (3) the capital deployed can achieve a better return than if it were to be deployed elsewhere. At present, with construction cost inflation, increased political risks, uncertainties as to the economy, is it any wonder when development is stalled; when development projects which may previously have been viable no longer make any financial sense on the terms negotiated, or when scheme changes are needed to reflect changing commercial (or indeed Building Regulations) requirements? I focus on private sector development given how reliant as a country we are on the private sector to deliver housing in particular, but of course most of the same economic realities apply, or should apply, to development carried out by the public sector.

None of this appears to be recognised in current Government announcements. Far from it. Instead, the rhetoric is to double down on developers who do not build out quickly, in genuflection to the myth of land-banking – with the Levelling-up and Regeneration Bill’s provisions about development commencement notices, changes to the completion notices regime and even a power for local planning authorities to decline to determine applications in cases of earlier implementation. As if these measures were ever going to force a developer to build out a permission for a scheme where the funding wasn’t yet in place, where there was not yet a ready market or where the project was no longer viable! Instead, these measures will simply discourage many from entering the process in the first place, rather than risk abortive expenditure, even if the odds are that the scheme will go ahead. Why take the additional risk?

To people like me, the 2007 – 2008 global financial crisis seems like yesterday. Development almost came to a halt. Whilst it seemed too slow at the time, the then Government responded with measures that were summarised in its guidance document, Greater Flexibility For Planning Permissions, published first in 23 November 2009 and revised  1 October 2010). Look at the 2009 impact assessment:

“In current economic circumstances, there is a reduced take-up of existing permissions. Where permissions lapse, there are costs and delays associated with providing and processing an application for a fresh planning permission.

There is also a broader need for added flexibility to allow developers and local planning authorities to make non-material amendments to existing planning permissions and to clarify and streamline the process for making minor material amendments. There is currently a lack of clarity about what can be done, which is resulting in unnecessary expense and time for both parties.”

The guidance:

  • set out the temporary arrangements that had been brought in to extend the life of planning permissions. “This measure has been introduced in order to make it easier for developers and local planning authorities to keep planning permissions alive for longer during the economic downturn so that they can more quickly be implemented when economic conditions improve.”
  • explained about the then new section 96A process for non-material amendments to planning permissions, introduced on 1 October 2009 pursuant to the Planning Act 2008.

The guidance was withdrawn on 7 March 2014 and replaced with the Flexible options for planning permissions section of what was then the new Planning Practice Guidance. In the transition, somehow the policy thrust of the earlier guidance was lost – the notion that flexibility can be a good or even necessary thing.

If you recall, the coalition Government subsequently introduced by way of the Growth and Infrastructure Act 2013 new sections 106BA, BB and BC into the Town and Country Planning Act 1990, providing a new application and appeal procedure, to review affordable housing obligations on the grounds of viability. Whilst helpful in some situations, it was certainly abused in others, and it was then repealed in 2016.

More recently of course, during the pandemic there were temporary measures to allow for the extension of time limits on planning permissions.

The Levelling-up and Regeneration Bill has its second reading in the House of Lords on 17 January 2023 and, when it comes to greater flexibility for planning permissions, clause 102 (introducing new Section 73B into the Town and Country Planning Act) remains as a small step in the right direction. Section 73 will continue to exist but section 73B provides for an alternative procedure for amending schemes, given that as a result of the Court of Appeal’s ruling in Finney, section 73 cannot be used for amending the description of development on a planning permission. Section 73B will allow for an application to be made for planning permission to be granted for an amended form of a previous planning permission. Planning permission will only be able to be granted “if the local planning authority is satisfied that its effect will not be substantially different from that of the existing permission”. It will not be able to be applied for in relation to a section 73 permission. The local planning authority “must limit its consideration to those respects in which the permission would, if granted…differ in effect from…the existing permission”.

My worry with section 73B is that unless there is really encouraging guidance from DLUHC, local planning authorities will be cautious as to the “not substantially different” test. After all, where does it rest on the spectrum between “non-material amendment” and “fundamental alteration”?

It seems to be that we will now have the following procedural options:

  • Section 96A for non-material amendments
  • Section 73 for amendments which may be material but which are not a fundamental alteration to the approved scheme and which do not necessitate a change to the description of development on the face of the original planning permission.
  • Section 73B for amendments which do not approve development whose effect will be substantially different from that of the existing planning permission
  • A fresh application for planning permission (encompassing also the Supreme Court’s suggested solution given in paragraph 74 of  its Hillside judgment: “Despite the limited power to amend an existing planning permission, there is no reason why an approved development scheme cannot be modified by an appropriately framed additional planning permission which covers the whole site and includes the necessary modifications”)
  • In a case where the existing planning permission is, in the words of the Supreme Court in Hillside, “severable”, our old friend the “drop-in permission”. Unmentioned in Hillside, not to be found in legislation or guidance but still in my view clearly possible in the right situation.

Wouldn’t it be useful for DLUHC to publish a document now with the can-do tone of Greater Flexibility for Planning Permissions, recognising the obstacles in the way of achieving timely development, and encouraging local planning authorities to use these procedural tools available to them where necessary, so as not to delay or frustrate development, with suggestions as to how the appropriate tests should be approached? At present the whole thing is a lottery, dependent on the particular views of individual planning departments and even individual officers.

And wouldn’t it be useful if, instead of the hyperbole, there could be an honest look at the real stresses and strains the current system is under and if there could be a tightening of processes in the same way as Rosewell achieved for the planning appeals system? And above all, if planning departments could have available to them sufficient staff: well-trained, well-managed and well-motivated?

And now the prospect of strikes at the Planning Inspectorate. An interesting year ahead, folks.

Simon Ricketts, 14 January 2023

Personal views, et cetera

Tall Buildings & Fire Safety

It’s hard to plan when policies are continually in a state of flux, when there is uncertainty as to where the controls lie – via the planning system or via separate legislation – and when there is the possibility of inconsistency as between the differing regimes.

Take fire safety in relation to buildings for instance.  The Government is proposing to tighten the Building Regulations – it published a consultation document on 23 December 2022 proposing various amendments to Approved Document B, which include recommending the inclusion of sprinklers in all new care homes, regardless of building height, as well as introducing a threshold whereby residential buildings above 30 metres in height should be designed and built with two staircases. A “very short” transition period is proposed:

“59. The transition period will allow time for schemes to be completed but should not allow the opportunity for developments to get off the ground ahead of the new requirements coming into effect.

60. We would encourage all developments to prepare for this change now.”

The consultation runs until 17 March 2023.

Why is 30 metres proposed as the threshold?

“56. 30 metres is an accepted threshold for increased safety measures such as increased fire resistance provisions and marks a recognised trigger representing an increase in the level of risks in buildings overall. We therefore propose to introduce a new trigger in Approved Document B making provisions such that new residential buildings more than 30 metres are provided with a second staircase.

57. There is no standard international approach to the provision of staircases within residential buildings of height. The approaches taken by other countries, varies greatly depending on other fire mitigation measures such as travel distances, provision of sprinklers, compartmentation, cavity barriers etc. Where other countries set a maximum height for the provision of single stairs, this ranges from 18m to 75m in height.”

This is all clear – or will be once the amended Approved Document B is published.

However, with operation of the planning system, and the inherent discretion given to decision makers within it, comes additional uncertainty.

My 3 July 2021 blog post Safety & Planning covered the requirements introduced by the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021, which introduced 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 and which required consultation with the Health and Safety Executive before the grant of planning permission involving a high-rise residential building in certain circumstances.

In practice, HSE’s responses to local planning authorities provide its substantive response, setting out any specific significant areas of concern arising from the proposal, as well as “supplementary information for the applicant” which is more advisory in nature.

Whilst it is of course open to a decision maker to take into account the advice of a statutory consultee but to determine, with appropriate reasoning, why it is appropriate not to follow the advice, in matters of human safety it would be a brave officer, committee of councillors or inspector who were to take that approach. What the HSE has to say is therefore extremely important. But it is also important to ensure that its requirements do not go beyond what is reasonably required.

Just because the HSE is satisfied gives no certainty that there will be no fire brigade objection. Whilst not statutory consultees, the relevant local fire brigade, for instance, in London, the London Fire Brigade, may also choose to make representations in relation to a proposal and the same considerations apply. Whilst they are a statutory consultee under the Building Regulations, by the time that a proposed development has planning permission it may of course be too late to build into the design the additional measures that are required so one can well understand why it is sensible for concerns to be expressed at this stage, although again, plainly, they should not go beyond what is reasonably required.

Neither the NPPF nor national planning practice guidance sets out the criteria to be applied. Although this has no Government policy endorsement, the National Fire Chiefs Council’s position is that the maximum height for buildings with a single staircase should be 18 metres, rather than 30 metres. Its Single Staircases Policy Position Statement (15 December 2022) says this:

“NFCC believe, that 18 metres or has at least 7 storeys must become the threshold at which more than one staircase should be required in new residential buildings, and that this threshold should be kept under review alongside other situations addressing these issues, including evacuation management and lifts.”

“Multiple protected staircases create more resilience to support evacuation and firefighting operations. The need for unambiguous guidance is particularly important given the clear problem with culture and competency identified across the design and construction industry since the Grenfell Tower fire tragedy.

An 18 metre or has at least 7 storeys threshold would provide continuity of message and clarity across Government, aligning with definitions in the Building Safety Act as well as thresholds for certain provisions in the Fire Safety (England) Regulations and the Government’s ban on the use of combustible materials. This would also help to synchronise standards across the United Kingdom by aligning to rules in Scotland. While arguments exist for a range of thresholds, both higher and lower, 18 metres or has at least 7 storeys would bring the greatest harmonisation with the wider regulatory environment in the United Kingdom, and the greatest simplicity and certainty for industry at this time.”

 So is it to be 30 metres, as consulted upon by the Government, for the purposes of the operation in due course of the Building Regulations – or 18 metres, as advocated by the National Fire Chiefs Council?

Policy D12B of the Mayor of London’s London Plan 2021 goes further than the statutory requirement for a fire statement and requires a separate, more detailed, fire statement to be submitted with any application for planning permission for “major development proposals”. It must be prepared by someone who is “third-party independent and suitably-qualified” – “a qualified engineer with relevant experience in fire safety, such as a chartered engineer registered with the Engineering Council by the Institution of Fire Engineers, or suitably qualified and competent professional with the demonstrable experience to address the complexity of the design being proposed.” The statement must set out how the proposed development will function in terms of:

•             The building’s construction method and products and materials used

•             Means of escape for all building users and evacuation strategy

•             Passive and active fire safety measures

•             Access and facilities for the fire and rescue service

•             Site access for the fire and rescue service

•             Future development of the asset and the ‘Golden Thread’ of information

So two separate fire statements. Appeals have been dismissed where this has not been done (see eg here).

The Mayor’s draft London Plan Guidance on fire safety does not (yet at least) specify in guidance the height of buildings a second staircase is required, but, following the NFCC’s statement, I understand that the Mayor’s office has taken the position last week that, until it has had further discussions with the Government on the issue, it will not take schemes to the Mayor for stage 2 sign off where the proposals are for 18m+ high residential buildings with single staircase access.

Isn’t this area a classic illustration of how, even for the best of reasons (people’s lives), looking to the planning system to address matters which are the proper domain of other legislation is so often a recipe for delay and confusion, particularly where there is no specific national guidance on the issue? Don’t we need:

  1. Clear, robust standards
  2. Clarity as to which regime will set out and police compliance with those standards
  3. Clear signposting of any proposed changes to standards, with appropriate transitional arrangements?

….

In other news:

I hope plenty of people read my Town partner Clare Fielding’s blog post Still IL – if I draw a Venn diagram with a circle around those of you who are interested in the proposed Infrastructure Levy and a circle around those of you who are aficionados of the Smiths and if you are in the intersection between the circles, this is a must-read.

Thanks if you tuned into our clubhouse discussion last week on DLUHC’s 22 December announcements, where we went through the various proposed changes to the NPPF. Over 500 of you have listened so far. The link is here. However I think the best summary of the proposals that I have read so far is by Sam Stafford. His 50 Shades of Planning blog post, National Planning Policy Fudge (4 January 2023),  is well worth a read (and I’ve got to be nice to him as he is tidying up the clubhouse recording for subsequent release in his podcast series).

Simon Ricketts, 7 January 2023

Personal views, et cetera

Courtesy Mario La Pergola via Unsplash