Month: November 2023

There’s No Other Way

To what extent is a decision-maker required to consider, before granting planning permission, whether there are alternative, more acceptable, development proposals compared to that which has been applied for?

The question arises again and again and the answer can be a bit of a blur.

Now that Marks and Spencer’s challenge to the Secretary of State’s decision to refuse planning permission for the demolition and redevelopment of its Oxford Street building has been ruled by Lang J to be arguable and will proceed to a full hearing, we shall see what the court makes of the reliance that the Secretary of State placed upon his conclusion that:

“32. Overall, the Secretary of State concludes that the evidence before him is not sufficient to allow a conclusion as to whether there is or is not a viable and deliverable alternative, as there is not sufficient evidence to judge which is more likely. The Secretary of State also does not consider that there has been an appropriately thorough exploration of alternatives to demolition. He does not consider that the applicant has demonstrated that refurbishment would not be deliverable or viable and nor has the applicant satisfied the Secretary of State that options for retaining the buildings have been fully explored, or that there is compelling justification for demolition and rebuilding.

33. The Secretary of State notes that M&S has stated that it will not continue to occupy and trade from the store for very much longer if permission is refused (IR13.46). Whether or not M&S leave the store following the Secretary of State’s decision is a commercial decision for the company. However, taking into account the locational advantages of the site, the Secretary of State does not agree with the Inspector at IR13.75 that redevelopment is the only realistic option to avoid a vacant and/or underused site.”

My 18 November 2023 blog post, Two Apples: Bramley and Worcestershire, referred in passing to alleged inadequate consideration of alternatives being one of the unsuccessful grounds of challenge in R (Bramley Solar Farm Residents Group) v Secretary of State (Lang J, 15 November 2023). Lang J referred to  Holgate J’s review of the case law on alternative sites in R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport (Holgate J, 30 July 2021 – see also my 30 July 2021 blog post Stonehenge Road Tunnel Consent Quashed) – see his paras 268 to 272, in particular:

“269 The analysis by Simon Brown J (as he then was) in Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P & CR 293,299–300 has subsequently been endorsed in several authorities. First, land may be developed in any way which is acceptable for planning purposes. The fact that other land exists upon which the development proposed would be yet more acceptable for such purposes would not justify the refusal of planning permission for that proposal. But, secondly, where there are clear planning objections to development upon a particular site then “it may well be relevant and indeed necessary” to consider whether there is a more appropriate site elsewhere. “This is particularly so where the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it.” Examples of this second situation may include infrastructure projects of national importance. The judge added that, even in some cases which have these characteristics, it may not be necessary to consider alternatives if the environmental impact is relatively slight and the objections not especially strong.

270 The Court of Appeal approved a similar set of principles in R (Mount Cook Land Ltd) v Westminster City Council [2017] PTSR 1166, at para 30. Thus, in the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site or of the same use on alternative sites are normally irrelevant. In those “exceptional circumstances” where alternatives might be relevant, vague or inchoate schemes, or which have no real possibility of coming about, are either irrelevant or, where relevant, should be given little or no weight.”

And now it has arisen yet again, in R (Peak District and South Yorkshire Branch of the CPRE) v Secretary of State for Transport (Thornton J, 17 November 2023. The CPRE argued that the Secretary of State should not have given development consent for the A57 Link Roads Scheme, on the basis that:

“Ground 1: The Secretary of State unlawfully failed to comply with the requirement in Regulation 21(1)(b) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 to provide a reasoned conclusion on the significant effects of the Scheme because he erroneously treated National Highways’ Environmental Statement as providing a cumulative assessment of the carbon emissions from the Scheme in conjunction with other developments when it did not and he failed to assess the significance of those cumulative impacts.

Ground 2: when concluding that the benefits of the Scheme clearly outweighed the harm to the Green Belt such that there were ‘Very Special Circumstances’ justifying inappropriate development in the Green Belt, the Secretary of State unlawfully failed personally to assess whether credible alternatives proposed might deliver substantially similar benefits with less harm to the Green Belt.”

Both grounds of challenge were rejected but I am going to focus on the second.

“Twenty-two hectares of the Scheme will be located on Green Belt land. The Panel reached the view that the Scheme will cause harm to the openness of the Green Belt. It will cross the Green Belt, introduce permanent embankments, bunds, and barriers alien to the Green Belt; give prominence to vehicles and introduce new street lighting. The Panel gave the harm significant weight in its decision making but concluded that the need for, and considerable public benefits of, the Scheme clearly outweighed the adverse effects of the Scheme, including its harm to the Green Belt. The public benefits weighing significantly in favour of granting consent were said to include the reduced congestion and improved journey time through Mottram, Hollingworth and Tintwistle, as well as between Manchester and Sheffield, together with the significant economic benefits brought about by the improvements proposed. The Secretary of State agreed with the Panel’s conclusion.”

CPRE argued that “in the circumstances of this case, the existence or absence of alternatives that might deliver the same or similar benefits, with no or substantially less harm to the Green Belt, was a mandatory material consideration which the Secretary of State unlawfully failed to take into account. The following reasons were advanced for this assessment. First, the Scheme will involve large scale civil engineering works that will be permanent and irreversible. Second, the Scheme was considered to be inappropriate development and the harm caused to the openness of the Green Belt by the Scheme was given “substantial weight” by the Secretary of State. Third, National Highways had expressly relied on its options appraisal, and “the lack of alternatives” to demonstrate very special circumstances justifying inappropriate development. Fourth, interested parties had specifically identified credible alternatives in the course of the Examination that they claimed would deliver the same or similar benefits with no or substantially less harm to the Green Belt. Fifth, the alternatives proposed were concrete and capable of genuine assessment. They had scored well in early options appraisals, and their promoters were present and engaged in the Examination. Those credible alternatives had received considerable attention in the Examination. Sixth, this was not an “alternative sites” case. Rather, as in Langley Park School for Girls v Bromley London Borough Council ([2010] 1 P & CR 10) and R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport ([2021] EWHC 2161 (Admin)) it was an “alternative schemes” case where the alternative schemes advanced by interested parties fell within the red line boundary of the application site. Seventh, the initial options appraisal was more than seven years old and did not reflect substantial changes in policy and technology since then and had not assessed alternatives with regard to their impacts on Green Belt purposes and openness, as in Langley Park.“

The judge referred to Holgate J’s summary of the case law.

“The category of legal error relied on in the present case is said to be that the Secretary of State erred by failing to take account of the alternatives advanced by CPRE and Mr Bagshaw. An error of law cannot arise in this regard unless, on the facts, the alternatives advanced by CPRE and Mr Bagshaw were so obviously material, that it was irrational for the Secretary of State to fail to consider them.”

The judge rejected the arguments as follows:

“In conclusion; I do not accept the underlying factual basis of CPRE’s primary case that the Secretary of State treated alternatives as a material consideration but failed to assess them for himself. Permission to apply for judicial review on CPRE’s primary case is refused.

Nor am I persuaded that the alternatives advanced by CPRE and Mr Bagshaw were mandatory material considerations such that it was unlawful for the Secretary of State to rely on their assessment by National Highways in its options appraisal of the Scheme. The present case is not analogous with the wholly exceptional set of circumstances in R (Save Stonehenge World Heritage Site) v Secretary of State for Transport [2021] EWHC 2161 (Admin). There is no general principle of law that the existence of alternative sites inevitably becomes a mandatory material consideration in any case where a proposed development would cause adverse effects but these are held to be outweighed by its beneficial effects (Lang J in R (Substation Action Save East Suffolk Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2022] PTSR 74 at §211). Neither the applicant for development consent or the decision maker relied on the absence of alternatives to justify the Scheme. The credibility of the alternatives advanced was in dispute. The present case is distinguishable from Langley Park School for Girls v Bromley London Borough Council [2010] 1P & CR 10). The criticism advanced about the age of the options appraisal by National Highways was addressed by the Panel in its Report.

The Panel approached the alternatives proposed as a matter of planning judgement, giving them brief consideration but focussing its consideration on whether a proportionate options appraisal had been carried out by the applicant for development consent, in accordance with paragraph 4.27 of the Policy Statement on National Networks. The Secretary of State agreed with the Panel’s approach and conclusion. In my judgment the approach taken demonstrates no error of law.”

I have emboldened above the passages which are of most interest.

It is also worth remembering that environmental impact assessment does not require consideration of alternatives, simply a description of the “reasonable alternatives” which have in fact been “studied by the developer”.

In summary, whilst there are exceptions, decision making in relation to planning applications and appeals is not generally about casting around for better alternatives to the proposal under consideration, but about assessing its adequacy, judged against the development plan and other material considerations.

Simon Ricketts, 26 November 2023

Personal views, et cetera

Two Apples: Bramley & Worcestershire

I hope you didn’t notice that there was no blog post last weekend. I really needed the clocks to go back again to give me enough time. Picking up the tablet and chisel a fortnight later is not easy.

So much to say!

Another planning minister bit the dust. I liked Iain Thomson’s quip on LinkedIn about 15 minute planning ministers – far more of a scourge than 15 minute cities.

As part of its ongoing market study into housebuilding the Competition and Markets Authority has published on 15 November 2023 two further working papers, on landbanks and planning rules. To quote from the press release:

“On land banks, the CMA’s analysis has found that, although land equivalent to over a million plots is held in landbanks, in most local areas that land is held by several different builders. The CMA is seeking feedback on this analysis, and in particular, whether local competition is being negatively impacted in the small number of areas where large amounts of developable land are controlled by a small number of housebuilders.

The CMA is continuing to examine the size of land banks overall, recognising that housebuilders need to hold a pipeline of land as sites pass through the planning system. The conclusions of this analysis will be published in the final report.”

“On planning, the CMA has developed options that the UK, Scottish and Welsh governments may consider when reforming their planning systems, including:

Whether a zoning or rules-based approach to development may help improve competition between housebuilders and boost housing delivery.

Making better use of councils’ limited time and resources by requiring them to only consult statutory stakeholders, rather than a wider group, as part of their assessment of planning applications. Late consultee responses on development could also be ignored.

Having an effective housing target which reflects the housing need of specific areas, and improving the ways governments ensure all councils have a proper local plan in place.”

Yep, another set of helpful suggestions as to planning reform.

But I wanted to step back from the politics and just shine a torch on two useful recent planning law cases. And to save myself from too much chiselling, all I am going to do is to point you to the following case summaries put out by those involved:

First of all, a summary by No 5 Chambers’ Thea Osmund-Smith and Odette Chalaby of R (Bramley Solar Farm Residents Group) v Secretary of State (Lang J, 15 November 2023).

In the context of a challenge by local residents to an inspector’s decision to allow an appeal for a solar farm and battery storage scheme in Hampshire, the judgment covers a number of practical issues such as:

  • Where an environmental statement is to be updated at the appeal stage, can the appellant carry out the publicity and consultation process? Yes.
  • Can a party choose not to call a witness, despite having submitted that witness’ proof of evidence to the inquiry? Yes.
  • Does the Government’s Planning Practice Guidance on renewable and low carbon energy impose a requirement to consider alternatives where solar farms use best and most versatile agricultural land? No. Consideration of alternative sites will only be relevant to a planning application in “exceptional circumstances”.

Secondly, a summary by Landmark Chambers of NRS Saredon Aggregates Limited v Secretary of State and Worcestershire County Council (Eyre J, 16 November 2023), a case in which Landmark’s Jenny Wigley KC appeared for the successful claimant. Eyre J quashed an inspector’s decision refusing planning permission for a sand and gravel quarry in the green belt, on the basis that the inspector made a legal error in relation to the weight to be applied to the biodiversity net gain (BNG) that would arise from the project. To quote from the summary:

“It was agreed at the inquiry that the scheme would deliver over 39% BNG. The Inspector afforded ‘only moderate weight’ to this on the basis that “some of the biodiversity net gain that would be achieved is required to meet national policy and future legislative requirements in order to mitigate the environmental impact of the development”.

The High Court agreed with the Claimant that the Inspector’s judgement as to weight was affected by a mistaken view as to requirements of forthcoming legislation. Because there was no basis for considering that the legislation might be retrospective, it was plainly not applicable to the scheme to be determined:

“The effect of that interpretation is that when assessing the weight to be attributed to the biodiversity net gain for the purposes of assessing whether there were very special circumstances outweighing the harm to the openness of the Green Belt the Inspector reduced the weight on the basis of a mistaken view as to the law. He did so believing incorrectly that some of the net gain would be required in any event by reason of the forthcoming legislation. That was an error of law and meant that the Inspector exercised his planning judgement as to the weight to be given to that material consideration (namely the net gain) on a basis that was wrong in law.”

The case is a useful way of reminding decision makers that there is, as yet, no legal requirement for 10% biodiversity net gain. The relevant provisions in the Environment Act 2021 have yet to come into force and, when they do (in January, we’re now told), the requirement will only apply to new applications submitted on or after that date. There is a policy requirement in the NPPF for biodiversity net gain, but only that such gain should be positive, i.e above zero, and there are also varying policy requirements in some Local Plans, but still no legal requirement. In emphasising benefits of development proposals, it is useful to stress the degree of BNG being offered and, for all applications already in the system, it is worth pointing out that any degree of BNG goes above and beyond legal requirements and should be afforded due weight accordingly.”

Two reminders that the courts are often more useful than politicians in clarifying how important practical aspects of the planning system should work.

Another fact to note:  in the NRS Saredon case, all four counsel were female. In the Bramley case, three of the five counsel were female, as well as of course the judge.

As always, these cases, together with any others handed down last week by the Planning Court or on appeal from the Planning Court, will feature in our Town Library Planning Court Judgments weekly update and you can subscribe for free at the link.

Simon Ricketts, 18 November 2023

Personal views, et cetera

Pic courtesy of Thiva via Unsplash

Act Up!

Following royal assent on 26 October 2023, the Levelling-up and Regeneration Act 2023 was finally published on 3 November 2023.

My, this has been some development project. The Bill was introduced into Parliament on 11 May 2022. Due particularly to the amendments introduced at report stage in the House of Lords and subsequent ping pong between the Commons and Lords (which saw all except one of those ultimately rejected), tracking through to work out the final form of the provisions has not been straight forward without sight until yesterday of the final version,

This is still not of course a completed development. The Act just gets the majority of its contents to “shell and core”. Secondary legislation will be needed to complete the job. Timescales for the substantive changes being brought into force? Shrugging shoulders emoji.

Nicola Gooch’s updated commencement table , drawing on section 255 (commencement and transitional provisions) is a useful guide to where we are with most of the planning-related provisions. Some additional comments:

  • Chapter 2 of Part 3 of the Bill (sections 92 to 101) covers development plans, national development management policies, the London Plan and neighbourhood plans and none of this will come into force until such day as the Secretary of State appoints by way of Regulations. The reality is that the Government first needs to conclude its detailed position on implementing the proposed plan-making reforms, following its 25 July 2023 consultation paper. The transitional arrangements announced in that consultation paper were as follows:

“We confirm our intention that the latest date for plan-makers to submit local plans, minerals and waste plans, and spatial development strategies for examination under the current system will be 30 June 2025. We also confirm our intention that those plans will, in general, need to be adopted by 31 December 2026. As referred to above, these dates are contingent upon Royal Assent of the Levelling Up and Regeneration Bill, as well as Parliamentary approval of the relevant regulations. However, we are setting this out now to provide planning authorities with as much notice as possible of these dates.”

“We confirm our intention to have in place the regulations, policy and guidance by autumn 2024 to enable the preparation of the first new-style local plans and minerals and waste plans. As set out above, this deadline is contingent upon Royal Assent of the Levelling Up and Regeneration Bill, as well as Parliamentary approval of the relevant regulations.”

The Government consulted on options for a phased roll-out of new local plans, to ensure a smooth transition. We don’t yet know the outcome of this.

In terms of protection from speculative development in the meantime:

“We also intend to set out that plans that will become more than 5 years old during the first 30 months of the new system (i.e. while the local planning authority is preparing their new plan), will continue to be considered ‘up-to-date’ for decision-making purposes for 30 months after the new system starts.

Additionally, where a plan has been found sound subject to an early update requirement, and the Inspector has given a deadline to submit an updated plan within the first 30 months of the new system going live, this deadline will be extended to 30 months after the new system goes live. This will ensure that local planning authorities are protected from the risk of speculative development while preparing their new plan.”

This could be extended, depending on the roll-out option adopted.

  • There has been some discussion around the planning enforcement provisions, particularly as to the extension in England to ten years of the current four years’ deadline for enforcement in the case of building operations and unauthorised change of use of a building to a dwelling. The change will come into force on such day as the Secretary of State appoints by way of Regulations. We don’t yet know whether the Regulations will include any transitional protection – I wouldn’t bet on it. Accordingly, if you are currently in that four to ten year danger zone you might think about applying for a certificate of lawfulness.
  • Fast track DCOs will in theory be possible from 26 December 2023, together with the power for the Secretary of State to make non-material changes to DCOs, which is when sections 127 and 128 come into force. In practice I assume that we will need the Government to have concluded its detailed thinking on reforms to the DCO process following its 25 July 2023 consultation paper.
  • Part 4 of the Act deals with the infrastructure levy and, like much of the Act, will not come into force until the Secretary of State introduces Regulations to that effect. Again we await the outcome of the consultation process which took place earlier this year, as to the detail.

This is just a first and very much incomplete dip into the Act, now that we finally have it to hand. I look forward to publication of the official accompanying explanatory notes and, no doubt, a winter blizzard of summaries as to what it all will mean in practice. Part of the difficulty arising from this long LURB soap opera period since last May is that we do need to come back to the final text with fresh eyes so as to work out what it is likely to mean for what we do – and most importantly, when!

And still we wait for the final version of the updated NPPF…

Simon Ricketts, 4 November 2023

Personal views, et cetera