Join The Club/Environmental Outcomes Reports

I mentioned in last week’s blog post that the Government has of course now published its consultation on the environmental outcomes reports system (17 March 2023) which is proposed to replace environmental impact assessment and strategic environmental assessment, as per the enabling provisions in the Levelling-up and Regeneration Bill. Consultation responses are due by 9 June 2023.

This is going to be a fundamental change to our plan-making and decision-making process.

We are going to dive into the detail in a Clubhouse session arranged for 4 pm on 30 March, led by my Town Legal partner Duncan Field, with other panellists including Riki Therivel (Levett-Therivel), Juliette Callaghan and Venessa Thorpe (Trium) and Elin Fradgley (Quod). So that we have an idea of likely numbers and so you receive a reminder when the event starts, do RSVP here.

By way of reminder, Part 6 of the LURB (clauses 138 to 152) sets out the legislative framework for environmental outcomes reports.

The “non-regression” duty set out in clause 142(1) is an important protection:

The Secretary of State may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed.”

The consultation paper sets out a number of the issues arising from the present system, all of which I’m sure we can all recognise:

• inefficiency

• duplication

• risk aversion

• loss of focus

• issues with data

Under “risk aversion”, Sullivan LJ is quoted from his 2004 Court of Appeal judgment in Blewett:

It would be no advantage to anyone concerned […] if Environmental Statements were drafted on a purely “defensive basis” mentioning every possible scrap of information […] Such documents would be a hindrance, not an aid, to sound decision-making by the local planning authority since they would obscure the principal issues with a welter of detail”.

(Personally I would expand the comment: this is the direction that the whole planning system has gone, not just in relation to environmental statements, but the whole gamut of application documents, (particularly design and access statements), planning committee reports and planning permissions themselves often with 50 or more conditions imposed where the permission relates to development of any scale or complexity).

I read the consultation document with a view to summarising the main changes from the current system but can’t improve on this pithy summary by Duncan:

EORs are expected to act as a translator of technical assessment work and only address performance against outcomes in a concise and publicly accessible way; in doing so EORs will need to identify necessary mitigation and/or compensation.

The range of possible topics (outcomes) to be covered by EORs is likely to be slimmed down to avoid duplication with other assessments required in the planning process.

– Although Government will maintain a distinction between projects where EORs are always required and projects where they may be required, there should be fewer discretionary decisions around screening due to the inclusion of more directive screening criteria.

On changes to scoping there seems likely to be less of a focus on scoping outcomes in or out and more of a focus on assessing scoped in outcomes in a proportionate way (so some outcomes may be included but assessed in less detail).

– Outcomes will be measured by reference to data-based indicators, and these will be developed at a national level to ensure consistency.

The Government acknowledges that there needs to be better alignment between assessments at a strategic (plan) level and those at a project level so that they speak to each other; it is hoped that the focus of EORs on the same outcomes and the application of nationally determined indicators will help with this.

– Guidance on alternatives will be developed to focus assessment on realistic/credible options. However, this will need to include an analysis of the alternatives by reference to the mitigation hierarchy (avoidance-mitigation-compensation).

There will be a greater emphasis on adaptive management of mitigation and monitoring/enforcement of measures after decisions have been taken.

There is recognition that there needs to be better access to and collection of environmental data to assist with EORs.”

The Government envisages that an EOR at the project stage under the Town and Country Planning Act would be structured as follows:

a short introduction (which references the project details in the accompanying Planning Statement)

a short, high level, summary of how reasonable alternatives and the mitigation hierarchy were considered early in the development of the project

an assessment of contribution towards achieving an outcome supported by the indicators set out in guidance – this will include

• the residual effects on the environment identified through the underlying technical work, with relevant conclusions in the technical work clearly pinpointed

the current baseline and relevant trend data, similarly identified

commentary on levels of uncertainty for that data or indicator set

proposed mitigation, and

monitoring proposals

• a summary of the contribution of the cumulative effects of the project as a whole on outcomes and how this relates to the conclusions of any strategic or plan level assessment.

Outcomes (to be consulted upon in coming months), measured by reference to a national data set, will need to be set out for at least the following:

• biodiversity

• air quality

• landscape and seascape

• geodiversity, soil and sediment

• noise and vibration

• water

• waste

• cultural heritage and archaeology

The idea is promising. The real challenge, not referred to in the consultation paper? How to discourage the sorts of legal challenges which have caused our current processes to be so bloated, whilst ensuring that unjustified assessment short cuts cannot be taken.

The LURB is currently making slow progress through its Lords Committee stage, due to the hundreds of amendments tabled, some of them by the Government, such as (see amendment 412D) the proposed change to the compulsory purchase system that would allow acquiring authorities in some circumstances to seek a direction, when making a compulsory purchase order, disapplying any entitlement to hope value on the part of the land owner. This could have huge implications on the the land promotion and development market – in that the risk of compulsory purchase at an under-value may well prove a significant potential disincentive to development promoters and those funding them. As usual it was a bit chaotic to begin with but we had a good and sparky discussion on the issue on Clubhouse last week, with the basic concept being defended by Shelter’s Venus Galarza, against an array of compulsory purchase surveyors and lawyers (none of whom were objecting to the objective of enabling greater delivery of housing, including affordable housing – rather the way it being done!). Shelter have their own slightly different amendment, amendment 414, narrow than that of the Government. You can hear it all here.

Looking further ahead, we now have a Clubhouse session on the dreaded Infrastructure Levy arranged for 2pm on 19 April, to be led by another of my Town Legal partners, Clare Fielding. If you would like to join the panel for that one do let me know.

Simon Ricketts, 25 March 2023

Personal views, et cetera

Back To Reality

You may be returning from that escapist world that is MIPIM and grimacing at the prospect of a week’s worth of emails, or you may be finishing a week of grimacing at all the LinkedIn pics of your colleagues in Ray-Bans. In any event, we now have three developments in relation to the Levelling-up and Regeneration Bill, currently at Committee stage in the House of Lords, sent to test the old saying that a change is a good as a rest…

I’m very grateful for three of my partners, not part of the MIPIM contingent, who have particularly had their eyes on the following:

Government amendment relating to removal of “hope” value in relation to particular categories of CPO

The Government tabled amendments on 13 March 2023 to the Levelling-up and Regeneration Bill that would have significant impacts on landowners. Raj Gupta has written a Compulsory Reading blog post LURB in the Lords – no hope (16 March 2023) on the potentially far-reaching implications. We have arranged a Clubhouse Planning Law Unplanned session at 5 pm on Thursday 23 March to discuss the proposal, led by Raj, Jon Stott, Greg Dickson and other leading specialists. Please RSVP here if you would like to tune in and/or take part in the discussion.

Government consultation on environmental outcomes reports – a new approach to environmental assessment

The Government published its consultation today, 17 March 2023, on the design on its proposed new system of environmental assessment. See the press statement, and consultation document. Duncan Field has set out some initial comments in a LinkedIn post. Again, we are going to arrange a Clubhouse Planning Law Unplanned event, probably for Thursday 30 March but further details will appear shortly.

Government consultation on the proposed infrastructure levy

The Government published its consultation today, 17 March 2023, on the design of the proposed infrastructure levy. See the press statement, technical consultation and a February 2023 research paper published alongside it. Clare Fielding will shortly be publishing a Levy-Headed blog post as to the likely implications.

Now to unpack. And let my picture be a warning for you to keep your parents away from the Be Real app.

Simon Ricketts, 17 March 2023

Personal views, et cetera

Everybody Needs Good Neighbours

I’m not sure that the architects of the 1947 town and country planning system could have foreseen the extent to which it so frequently ends up being tested to its limits by the need to protect the specific, often legitimate, interests of neighbours and the extent to which the process has become weaponised in neighbour disputes.

I have dealt before with the inevitable mission creep over time, eg in my 4 April 2023 blog post Tate Modern Viewing Platform Supreme Court Ruling: What Is There For Planners To See?

To what extent can and should local planning authorities supplement adjoining owners’ private rights with policies and decision-making that protect those adjoining owners’ interests over matters such as the impact of noise and vibration on a particularly sensitive neighbour – and, if so, how do they make sure that they have the right engineering basis for their interventions? Particularly in London of course these issues arises again and again – see eg my 5 December 2016 blog post First World Problems: Basements and planning officers can get drawn into a neighbour versus neighbour quasi-mediation.

I was reminded by all this again by a case this week, Strongroom Limited v London Borough of Hackney (Deputy High Court Judge Tim Corner KC, 8 March 2023). I only recite the facts by way of illustration of the way these things escalate – the legal issues were settled on the day of the hearing.

The claimant operates a recording studio. The council granted planning permission for redevelopment of an adjoining property, with which the claimant shares a party wall. The claimant had objected to the planning application, submitting a report by consultant Jim Griffiths of the music acoustic consultancy, Vanguardia [pause here for quiet shout out to the excellent Jim] setting out his advice that “unless noise and vibration levels were strictly controlled during construction, the use of the Studios would be subject to harm, impossible to use and might be compelled to close as a result”. He set out the maximum noise and vibration levels that could be tolerated during the construction phase. The developer responded with their own commissioned report. The council in turn commissioned their own report and in consequence planning permission was granted with a detailed condition requiring submission of a “demolition and construction method statement covering all phases of the development to include details of noise control measures” with specific limits on noise and vibration levels set out in the condition.

Once the developer applied to discharge the condition the claimant argued strongly that the developer’s technical work was flawed and commenced proceedings for an injunction to stop construction works from being carried out. That resulted in a settlement agreement allowing, amongst other things, for on-site noise testing and disclosure of testing results. The claimant continued to take issue with the technical work and with some undisclosed testing which had been made available to the council. The council discharged the condition on the basis of the information submitted by the developer and the claimant challenged this by way of judicial review.

In the meantime, the, presumably despairing, developer sought and obtained a separate planning permission simply for change of use of its building, without any condition prescribing numerical noise and vibration limits during construction but requiring a construction management plan to be submitted including details of noise control measures. Again, the council discharged the condition on the basis of information submitted by the developer and again the claimant challenged this by way of judicial review.

So the Deputy High Court Judge had two complicated judicial reviews to determine, both revolving around whether the the council had acted properly in discharging the respective conditions. Unusually, on the very day of the hearing the parties reached a further settlement agreement resolving all of the issues. Even more unusually the one matter the parties had not managed to agree upon was the question of who should bear the costs of the proceedings and so the judge had to proceed with a relatively full analysis of the relative strength of the parties’ arguments before finally determining that (you may have seen this coming) each party should bear its own costs.

What an expenditure of time and money all round, at every stage of the process. Surely there must be a better way?

One of the problems is that outside the planning system, potential private law remedies in relation to matters such as noise, vibration and potential effects on the structural stability of adjoining buildings do not provide protection in a particularly straightforward and light-touch way. Yes, actions in private nuisance are available but the Tate Modern case is a high profile example of the inherent uncertainties of that expensive process. Yes, there is also the Party Wall Acts process in relation to certain matters but that only covers a narrow range of the issues arising from development and is in itself a rather antiquated system which could do with a thorough statutory review (for a topical description of the system, see another case last week: Power & Kyson v Shah (Court of Appeal, 7 March 2023)).

What’s the solution? I quite like the Australian approach:

Neighbours need to get to know each other. Next door is only a footstep away.

Finally, can I recommend the latest episode of the Planning Law (With Chickens) podcast by my colleagues Victoria McKeegan and Nikita Sellers. They chat through some of the most interesting things in planning law which have happened in the last few months and also have a good interview with James Wickham of Gerald Eve.

Simon Ricketts, 11 March 2023

Personal views, et cetera

Resources Resources Resources

As is the English way, it’s rather more nuanced than Money Money Money. And it’s hardly an Abba singalong, but speak to someone with practical experience of the operation of the planning system about what is needed to improve its operation: these three words constantly ring out – way above any chatter about the changes proposed in the Levelling-up and Regeneration Bill  or by way of the Government’s wider policy reforms.

So it was good to see this week’s DLUHC consultation document Stronger performance of local planning authorities supported through an increase in planning fees (28 February 2023).

This consultation seeks views on improving the performance of English local planning authorities by increasing planning fees, “building capacity and capability” and “introducing a more robust performance regime

Now you have responded to the last consultation process, you can start on this one! The deadline is 25 April 2023.

The document sets out the Government’s threefold strategy:

  • Financial support

this consultation proposes an increase in planning application fees for major applications by 35% and for all other applications by 25%, together with an indexation proposal for fees to be adjusted annually in-line with inflation.”

  • Additional resource

This consultation outlines how we are working with representatives across the planning and development sector to design and deliver a programme of support for building planning capacity and capability within local planning authorities and to seek views on how we can increase capacity and capability in the planning system as quickly as possible.”

  • Improved performance

This consultation therefore also proposes a new approach to how the performance of local planning authorities is measured across a broader set of quantitative and qualitative measures

Some examples of proposed fee increases:

Subject to the outcome of the consultation process, the increases will be introduced this summer and will be reviewed within three years.

The consultation raises various specific questions, such as:

  • Whether there are examples of bespoke or ‘fast track’ services which have worked well or could be introduced for an additional fee – and of any schemes that have been particularly effective
  • whether there should be a commitment on the part of authorities to ringfence the fees for spending within their planning departments (surely a no-brainer – and one to be firmly policed).
  • whether the ability for a “free go” repeat application be limited or removed
  • whether the fee for retrospective applications should be doubled.

In terms of increasing resources in the planning system, the consultation document says this:

43. We want to support and work with local planning authorities to make sure that planners and the planning system are valued, and that there is a culture of proactive delivery, pride in performance and a clear understanding of high-quality customer service; as well as being ready to adapt to the new measures and ways of working methods proposed in the Levelling Up and Regeneration Bill.

44. We must also promote a broader understanding of the value of planning in supporting the country in its Levelling Up ambitions as a positive driver of sustainable economic growth and the development and building of homes and places that communities can be proud of.

45. We have created a cross-sector working group with representatives from local government, the private sector and professional bodies to design and deliver a programme of support to build capacity and capability strategy across local planning authorities. This programme will seek to provide the direct support that is needed now, deliver upskilling opportunities and further develop the future pipeline into the profession in order to continually improve the quality of service delivered and resilience of local planning authorities.

46. To support the development of our planning capacity and capability strategy and programme we would like to hear your views and experience of the specific challenges in recruiting and retaining planning professionals with the right skills and experience and the best ways in which government, working with professional bodies, can boost the capacity and capability of local planning authorities. It is our intention to carry out numerical research in the coming months to support this important strand of work, but in the meantime we would welcome any data and insight that you would like to provide.”

In terms of increasing the performance of local planning authorities:

48. As we propose to introduce measures to increase fee income relating to planning services specifically, we want to amend the existing metrics that measure performance of local planning authorities for speed of decision-making so that local planning authorities are primarily held to account for the number of applications that are determined within the statutory determination periods rather than through an extension of time agreement. We also propose to tighten the Planning Guarantee period for non-major applications.

we propose that where the statutory determination period is 8 weeks the Planning Guarantee should be set at 16 weeks and where the statutory determination period is 13 weeks (or 16 weeks for Environmental Impact Assessment developments) the Planning Guarantee should be retained at 26 weeks.”

[What are your experiences of the Planning Guarantee? The only time I’ve seen someone apply for their money back (with every justification), the local planning authority refused to progress the section 106 agreement until the applicant had agreed in writing to waive his rights to rely on it!]

We propose that the performance of a local planning authority for speed of decision making should be primarily assessed on the percentage of applications that are determined within the statutory determination period, not an agreed extended period of time. We also believe that the performance of local planning authorities for speed of decision-making should be assessed separately for the following application types:

  • Major applications (10 or more new dwellings, or site area of 0.5 hectares or more and the number of dwellings is unknown; provision of a non-residential building or buildings where the floor space created by the development is 1000sqm or more; development on a site with an area of 1 hectare or more)
  • Non-Major applications (excluding householder applications) (anything smaller than the criteria for major development, including residential development of between 1 and 9 new dwellings on a site with an area less than 1 hectare, or site area is less than 0.5 hectares and the number of dwellings is unknown; non-residential development where the floor space created is less than 1000sqm or where the site area is less than 1 hectare; or other types of non-major development such as change of use)
  • Householder applications (development within the curtilage of a dwelling house which requires an application for planning permission and is not a change of use)
  • Discharge of conditions
  • County matters (minerals and waste) applications

The document seeks views on the suitability of these individual metrics:

It suggests that there could be a standardised “customer satisfaction survey” (sigh, is “customers” really the right word?).

What do you think? I was quite encouraged by the various proposals although do they really go far enough? I suspect that the fee increases are pitched about right but how much extra money will the Government be committing to this essential service?

The document asks whether there any other application types or planning services which are not currently charged for but should require a fee or for which the current fee level or structure is inadequate. There are no fees at present for listed building consent applications – not mentioned in the consultation document. Is that right? The fee for section 73 applications is very light – currently £234 – when in reality the work involved can be extensive. The consultation does ask as to the appropriate fee for the LURB’s proposed section 73B procedure but not about our familiar friend section 73. Should the fee be higher for EIA development – I would have thought so? (and, by the way, whilst outside the remit of this consultation, there is still no visible progress on introducing fees in relation to planning appeals).

Separately, should there be greater control over non-statutory fees for planning performance agreements and for pre-application advice? I increasingly hear tales of woe from applicants as to large fees paid only for advice to be provided very late – and then sometimes reversed once the application has been submitted.

I know that the information gathering in relation to the metrics will entail further work on the part of already busy staff but it will give a much clearer picture than anyone has at the moment – huge delays are masked by routinely agreed time extensions. And the requirement, for instance, for data to be supplied on the “percentage of committee decisions to refuse against officer recommendation that are subsequently allowed at appeal” should certainly focus minds….

Sam Stafford has done wonders via his 50 Shades of Planning podcast series to shine a life on what “life on the frontline” for planning department staff can be like – I recommend his 25 February 2023 Life on the frontline II episode. In the light of these proposals,  Life on the frontline III next year will make for even more interesting listening.

Simon Ricketts, 3 March 2023

Personal views, et cetera