Month: December 2023

London 2024

The next London Mayoral election will be held on 2 May 2024.

As of 9 November 2023 Sadiq Khan held a 25 point lead over conservative candidate Susan Hall, according to a YouGov poll. Anything could of course happen between now and 2 May though, the greatest risk for Khan possibly being if Jeremy Corbyn stands as an independent candidate and splits the labour vote. The deadline for candidate nominations is 27 March so I suspect we will see increasing levels of speculation in the meantime…

To his left, Mr Corbyn. To his right, Mr Gove.

As part of the flurry of DLUHC announcements on 19 December 2023 (see my blog post that day, In DLUHC Jubilo: NPPF & Much More), the Secretary of State wrote to Mr Khan. The letter included the following passage:

“Due to the significant shortfall in housing supply and under delivery of housing in our capital, I have concluded that it may be necessary to take further action now, as a matter of urgency, to make sure London is delivering the homes our capital needs.

With this in mind, I have asked Christopher Katkowski KC to lead a panel of expert advisers comprising Cllr James Jamieson, Paul Monaghan, and Dr Wei Yang, to consider the aspects of your London Plan which could be preventing thousands of homes being brought forward, with a particular focus on brownfield sites in the heart of our capital. I have asked them to produce their report by January and will make sure that it is shared with you.

If you cannot do what is needed to deliver the homes that London needs, I will.”

The terms of reference given to the advisors were published on 22 December 2023. Lichfields have been appointed along with the advisors previously announced.

“The expert advisers will assess whether there are specific changes to London Plan policies that could facilitate urban brownfield regeneration in London for housing delivery in an appropriate manner and, if necessary, recommend changes to the London Plan accordingly.

The output of the review will be a short report, delivered by 15 January 2024, to the Secretary of State.”

The objectives of the work are as follows:

“To consider and, if appropriate, make recommendations for specific changes to the London Plan. The Secretary of State will share the recommendations with the Mayor to consider their implementation.

To work with Lichfields consultants to ensure that there is an evidence base which supports the recommendations of the expert advisers.

To complete a report on how, specifically, the London Plan could be improved to facilitate the delivery of new homes on brownfield sites.”

15 January! It will be interesting to see what emerges. I assume that aside from the implications of the detailed and prescriptive approach taken by the London Plan – a document which is instead meant to operate only at a strategic level – one potential area for investigation will be the extent to which the Mayor’s rigid approach to minimum levels of affordable housing, even in the face of agreed unviability, and/or his requirements as to review mechanisms which can cause difficulties with funders, is holding back delivery (although of course the Mayor’s response is always to point to the level of need for social housing). Will another be the Mayor’s resistance to development in the green belt? But this would only make sense in the context of Mr Gove’s letter if the focus is on previously developed land in the green belt – and even this would uncomfortably with the Government’s 19 December 2023 revision to the NPPF, absolving authorities of the need to review green belt boundaries when preparing local plans…

Are there possibly any clues in two recent Secretary of State decisions?

On 11 December 2023 the Secretary of State overturned inspector Jennifer Vyse’s recommendation and granted planning permission in relation to called-in applications for mixed use development at Homebase and Tesco Osterley, Syon Lane, Hounslow. His approach to the planning balance and overall conclusion in  his decision letter is as follows:

“64. For the reasons given above, the Secretary of State considers that the application is not in accordance with LonP policies D9 and HC1 and LP policies CC3 and CC4 of the development plan, and is not in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in line with the development plan.

65. Weighing in favour of the proposal is the regeneration of under-utilised brownfield land which carries substantial weight. Also weighing in favour is the delivery of up to 2,150 homes which carries substantial weight, and the delivery of 750 affordable homes designed to meet the current housing need profile in Hounslow, which each carry substantial weight. Economic benefits carry significant weight whilst the provision of open space and significant biodiversity net gain both carry moderate weight.  Highway and transport improvements carry limited to moderate weight and the reprovision of an existing Tesco store and the provision of community space each carry limited weight.

66. Weighing against the proposal is less than substantial harm to a number of designated heritage assets which carries great weight. Moderate harm to the character and appearance of the area in relation to the Homebase scheme carries moderate weight. Heritage harm caused by the total loss of a non-designated heritage asset (the Homebase store) carries limited weight and the Secretary of State has considered paragraph 203 of the Framework in coming to this decision.

67. In line with the heritage balance set out at paragraph 202 of the Framework, the Secretary of State has considered whether the identified less than substantial harm to the significance of each designated heritage asset is outweighed by the public benefits of the proposal. Taking into the account the public benefits of the proposal as identified in this decision letter, the Secretary of State agrees with the Inspector at IR15.11 that the public benefits of the appeal scheme are more than sufficient to outweigh the identified harm, including cumulative harm, to the significance of the designated heritage assets. He considers that the balancing exercise under paragraph 202 of the Framework is therefore favourable to the proposal.

68. Overall, in applying s.38(6) of the PCPA 2004, the Secretary of State considers that despite the conflict with the development plan, the material considerations in this case indicate that permission should be granted.

69. The Secretary of State therefore concludes that planning permission should be granted.”

Note the weight placed on delivery of homes, including affordable homes, on under-utilised brownfield land, together with economic benefits, versus heritage harm.

On 4 December 2023 the Secretary of State agreed with his inspector’s recommendation and granted planning permission for the demolition of existing buildings and the comprehensive phased redevelopment of the site for a mix of uses including up to 1,049 residential units and up to 1,200 square metres of flexible commercial and community floorspace in buildings ranging from 3 to 18 storeys along with car and cycle parking, landscaping and associated works. His decision letter demonstrates a similar balancing exercise, in the additional context of Barnet Council not having a five year supply of housing land:

“35. Weighing in favour of the proposal is the delivery of market and affordable housing which each carry significant weight; the reduction in traffic, provision of open space, biodiversity improvements, regeneration benefits and employment provisions which each carry moderate weight; and improvement in healthcare facilities which carries minimal weight.

36. Weighing against the proposal is the less than substantial harm to the designated heritage asset which carries great weight.

37. In line with the heritage balance set out at paragraph 202 of the Framework, the Secretary of State has considered whether the identified less than substantial harm to the significance of the designated heritage asset is outweighed by the public benefits of the proposal. Taking into the account the public benefits of the proposal as identified in this decision letter, overall, the Secretary of State agrees with the Inspector at IR238 that the public benefits outweigh the identified less than substantial harm to the significance of the designated heritage asset, and that the proposal would secure the optimum viable use of the site (IR235). He therefore considers that the balancing exercise under paragraph 202 of the Framework is favourable to the proposal.”

Whatever we think of the Secretary of State’s reasoning in granting these permissions, let’s not give him credit for thereby speeding up the development process. These were both applications which had been resolved to be approved by Hounslow and Barnet respectively in 2021!

Finally, how about this for petty point scoring, in relation to the continuing political pawn which is the Mayor’s extended ULEZ scheme? The Secretary of State would like the Mayor to arrange for vehicles that are the subject of his scrappage scheme to be provided to Ukraine to help with its war effort. The Mayor’s position is that this is not within his legal powers. This is Mr Gove’s latest letter dated 21 December 2023 to the Mayor of London. I have no idea what the right answer is on this specific issue but in a year where there are too many real battle grounds around the globe, perhaps let’s try to avoid unnecessary domestic political battlegrounds? Even in an election year?

Simon Ricketts, 30 December 2023

Personal views, et cetera

PS It’s so often been the case that I’ve had some song going through my head when writing one of these posts that I thought as an end of year gift I would present to you this Spotify playlist – a track for each post this year – I’m sure you’ll be able to match them up…

See you in 2024.

From YouGov 9 November 2023 poll

Street Votes!

I know we are all trying to wind down, or maybe are slumped there fully unwound already, I do know that, I do see you. However, I couldn’t let a DLUHC consultation paper just slip out unnoticed on 22 December…

The Government’s consultation paper on street votes development orders landed this afternoon. The consultation period closes on 2 February 2024

You will recall that this new potential consenting route for domestic development was teed up by section 106 of the Levelling-up and Regeneration Act 2023, which shoehorns new sections 61QA to 61QM into the 1990 Act.

The consultation paper summarises as follows how SVDOs will work in practice:

“11. A group of residents which meets certain requirements will be able to come together with a proposal for permission to be granted for development on their street, for example the addition of an extra storey to properties. The proposal can be put forward by the group of residents directly or with the assistance of an individual such as an architect.

12. The proposal will be examined by the Planning Inspectorate on behalf of the Secretary of State to check that the proposed development is in scope and that requirements prescribed in secondary legislation are met. These requirements will help ensure that development meets high design standards and that local impacts are taken into account.

13. If the proposal passes the examination, it is then put to a referendum. Where the required threshold of votes is met, subject to any final checks, the Planning Inspectorate will make the street vote development order on behalf of the Secretary of State. Once the street vote development order is made, granting planning permission, a person with control of the land can then decide whether they want to take forward development.

14. Where street vote development takes place, local authorities will be able to capture value from the new development via the Community Infrastructure Levy and, when it is introduced, the new Infrastructure Levy, and use it to fund infrastructure that will support the local area.”

The Government proposes that for the procedure to be available there will need to be at least ten residential properties in the street, with rules as to the minimum size of the qualifying group of voters and percentage of votes required as follows:

It is proposed that any proposal must include:

  • “a signed and witnessed letter from members of the qualifying group declaring that they support the proposal, where a proposal has been submitted on their behalf
  • a map which identifies the street area and the land in that street area to which the proposal relates
  • a draft order which includes a description of the development to which the order relates and any proposed planning conditions
  • any necessary supporting information such as impact assessments or statements. Further information is set out in the “Managing local impacts” section of this consultation
  • details of any consultation with statutory bodies
  • a declaration that the qualifying group has engaged with the local community”

“21. In addition, we propose that qualifying groups (or those acting on their behalf) must submit a street design code that sets out illustrated design parameters for physical development within the street area such as number of floors, plot use and the facade treatment of buildings.

22. We also propose qualifying groups (or those acting on their behalf) will have the option to submit a detailed specification of the elevations visible from public spaces for new or extended buildings that are permitted in the street area. If these are submitted, they must include at least one detailed elevation drawing for facades facing public spaces. Specifications of elevations not facing public spaces are optional. Qualifying groups may provide various façade options if a varied streetscape is desired.

23. If plot widths in the street area vary, the specification must include requirements on how the elevations can be adapted to deal with such variation. If they wish, qualifying groups may also choose to include permitted elevations for wider buildings that can be created by merging plots e.g. an elevation for a small mansion block created by merging three existing plots.”

A ”street area” is to be defined as “the properties on each stretch of road starting or ending at a crossroads or as a minor road at a T-junction or where there is a gap between buildings of more than 50 metres. A street is treated as terminated if the continuous stretch of buildings is broken by a bridge wider than 3 metres. This applies to both the street running beneath and over the bridge. A residential property is counted as being in a street area if any part of its boundary runs along the highway. The street area must have at least 10 residential properties within its boundary. We also propose that adjoining streets could be joined together to form one street area, for example, joining together two streets that have fewer than 10 residential properties.”

Detailed design requirements are set out in a table at paragraph 35 of the consultation document, informed by six design principles:

  • Supporting a gradual evolution in the character of neighbourhoods
  • Limiting impacts on neighbours
  • Preserving green space and increasing outdoor space (including balconies)
  • Celebrating heritage
  • Promoting active travel
  • Creating sociable neighbourhoods

If you look at the paragraph 35 table you will see that there is much detail as to for instance, the maximum number of extra storeys (dependent on the density of the area); setbacks; basements; angled light planes; ceiling heights and corner properties.

It is proposed that “street vote development orders should be permitted to go beyond that which might be permitted under the local development plan where the impacts are broadly acceptable in the view of the Secretary of State according to national policy, and it will not cause problems with the implementation of the local plan.”

If the proposal survives examination and the necessary referendum, the Government hasn’t yet decided how long property owners will have to commence development:

  • “Option A: Development must be commenced within 10 years of the order being made. This is longer than is typically allowed for planning permission granted through existing consent routes because the permission will potentially apply to properties under many different owners, some of which may not be able to commence development within a shorter period (e.g. 3 years). The qualifying group would also have the option to propose an increase to this period as part of its proposal if it takes the view more time is needed to commence development;
  • Option B: Development must be commenced within a specified period (e.g.10, 20 or 30) years of the order being made. The qualifying group would also have the option to apply to the local planning authority after the order has been made to extend the commencement period; and
  • Option C: No time period. Permission granted through a street vote development order would be permanent.”

In summary, there’s a lot here for local planning authorities, planning professionals and (above all) home owners to get their heads around. The concept has been widely lobbied for by eg Policy Exchange, Create Streets and YIMBY. I’ll be interested to see the extent to which ultimately there is take-up and, aside from the inevitable definitional problems with any rules-based process such as this, of course there are some open questions as to the extent to which this process, alongside continuing extensions of permitted development rights and the prospect of national development management policies, further marginalises the role of the local planning authority. And does anyone remember neighbourhood development orders and all of that malarkey…?

But something to be picked up again on the other side, as they say.

In the meantime, peace to all in 24 – even to those I may be seeing across a planning inquiry or court room!

Simon Ricketts, 22 December 2023

Personal views, et cetera

Image from YIMBY Street Votes website

In DLUHC Jubilo: NPPF & Much More

God bless planners who have been waiting for this day all year. I hope you participated in the nppfestivities although to my mind the NPPF itself was the least interesting of what was published today (19 December 2023).

This is today’s publication list as it stands at 6 pm (ten items):

  1. The new National Planning Policy Framework and
  2. the Government’s response to consultation on reforms to national planning policy.

I’ve been reading the latest version of the NPPF as against the previous September 2023 version and against the amendments consulted on in December 2022. This is just a first quick take. I’ve just read the lines so far. The interesting bit is of course going back and reading between them. (A Landmark Chambers/Town Legal seminar is planned for 15 January 2024 with exactly this in mind – details here).

As compared to the December 2022 consultation (see my 22 December 2022 blog post) the changes are relatively limited, the main substantive ones being (in broad summary):

  • No further restrictions after all as to when the paragraph 11 tilted balance applies (although for an authority whose plan has reached at least regulation 18 stage the requirement to show five years’ worth supply of housing supply drops to four years). The consultation paper had suggested exclusions where meeting need in full “would mean building at densities significantly out of character with the existing area” and where there is “clear evidence of past over-delivery”.
  • The changes consulted upon to the “soundness” test for local plans, particularly the deletion of the “justified” requirement, are not being taken forward.
  • Whilst as per the consultation draft, the outcome of the standard method for assessing housing requirements for an area is expressed as an “advisory starting point”, the exceptional circumstances for departure make it clear that “the particular characteristics of an area” is in fact the “particular demographic characteristics of an area”.
  • References have been added, supportive of “community-led development”.

The “area character” point has instead been picked up in a new paragraph 130 which advises that “significant uplifts in the average density of residential development may be inappropriate if the resulting built form would be wholly out of character with the existing area. Such circumstances should be evidenced through an authority-wide design code which is adopted or will be adopted as part of the development plan.”

Substantively as per the consultation document, there is “no requirement for Green Belt boundaries to be reviewed or changed when plans are being prepared or updated”. How can this possibly work in Green Belt authorities with high levels of unmet housing need?

As per the consultation document there are plenty of exhortations as to beauty.

3. Consequential changes to the advice in the Government’s Planning Practice Guidance about the Green Belt and about traveller sites .

4. The Secretary of State’s Falling Back In Love With The Future speech at the RIBA.

5. The Secretary of State’s written ministerial statement to the House of Commons: The Next Stage in Our Long Term Plan for Housing Update.

Much of the statement simply summarises the other documents covered in this blog post but the section on Cambridge is worth setting out in full:

“Cambridge

Finally, I want to provide an update on the Government’s vision for Cambridge 2040. In July, I outlined plans for a new urban quarter – one adjacent to the existing city – with beautiful Neo-classical buildings, rich parkland, concert halls and museums providing homes for thousands. This would be accompanied by further, ambitious, development around and in the city to liberate its potential with tens of thousands of new homes.

In the intervening months, Peter Freeman, the Chair of the Cambridge Delivery Group, has been developing our vision for the city, in collaboration with a whole host of local leaders and representatives. I am clear that delivering our vision means laying the groundwork for the long-term, and that starts now.

We plan to establish a new development corporation for Cambridge, which we will arm with the right leadership and full range of powers necessary to marshal this huge project over the next two decades, regardless of the shifting sands of Westminster.

We recognise the scale of development we are talking about will require support from across the public and private sectors, to realise our level of ambition.

And we must also ensure we have an approach towards water that reflects the nature of Cambridge’s geography. So today I am also announcing that we will review building regulations in Spring next year to allow local planning authorities to introduce tighter water efficiency standards in new homes. In the meantime, in areas of serious water stress, where water scarcity is inhibiting the adoption of Local Plans or the granting of planning permission for homes, I encourage local planning authorities to work with the Environment Agency and delivery partners to agree standards tighter than the 110 litres per day that is set out in current guidance.”

6. Housebuilding in London: Letter from the Secretary of State for Levelling Up, Housing and Communities – the highlights:

“We agree that housing delivery in London is far below the levels needed. Not only is delivery considerably short of your own London Plan target by approximately 15,000 homes per year, it was approximately 63,500 homes lower than actual need last year, as calculated by the standard method. This is not a national issue. London was the worst performing region in the Housing Delivery Test 2022. Fewer than half of the London Boroughs and Development Corporations delivered more than 95% of their appropriate housing requirement for the test over the three-year monitoring period. Areas like the West Midlands are overdelivering, while London continues to fall short.

This has a significant effect on the availability of homes for those wanting to live and work in the capital, as well as for the standard of housing available. London’s average house prices remain the most expensive in the UK – an average of £537,000 in September 2023. The average price was over 12.5 times average earnings last year. London has the lowest level of home ownership in England. Our capital also has, as you know, the highest proportion of renters. There are 60,040 homeless households in temporary accommodation, including over 80,000 children.

Under your leadership the GLA is failing to provide affordable homes for those that need them most.

While I welcome the commitments you made in your letter, as well as the ideas you have provided for Government to consider, they are not enough to change this woeful picture. In July, I asked my officials to review housing delivery in London to gain a greater understanding of the reasons for this significant under-delivery. We met stakeholders, including planning authorities, developers, and boroughs to identify the challenges they encounter in delivering housing. In the course of those discussions, a number of issues were raised which stakeholders believe are adversely affecting housing delivery in London.

Due to the significant shortfall in housing supply and under delivery of housing in our capital, I have concluded that it may be necessary to take further action now, as a matter of urgency, to make sure London is delivering the homes our capital needs.

With this in mind, I have asked Christopher Katkowski KC to lead a panel of expert advisers comprising Cllr James Jamieson, Paul Monaghan, and Dr Wei Yang, to consider the aspects of your London Plan which could be preventing thousands of homes being brought forward, with a particular focus on brownfield sites in the heart of our capital. I have asked them to produce their report by January and will make sure that it is shared with you.

If you cannot do what is needed to deliver the homes that London needs, I will.”

7. Housing Delivery Test: 2022 measurement

8. Local Plan intervention: Secretary of State’s letters to 7 local authorities  directing them to revise their local plan timetables – Amber Valley. Ashfield, Basildon, Castle Point, Medway, St Albans and Uttlesford.

9. Direction preventing West Berkshire Council from withdrawing its emerging local plan at a meeting tonight.

10. Freeports delivery roadmap.

A busy day in Marsham Street…

Simon Ricketts, 19 December 2023

Personal views, et cetera

PS This my 400th post. I’ll get the hang of it soon, I promise.

Permission Incompatibility Not Relevant For Decision Maker – Court Of Appeal In Fiske

The Court of Appeal handed down somewhat of a Christmas present today for those of us frustrated with questions raised from time to time by local planning authorities as to whether “Hillside” issues may arise in relation to particular application strategies adopted by our clients. In his judgment today in R (Fiske) v Test Valley Borough Council (Court of Appeal, 15 December 2023) Lindblom LJ makes it clear that this is simply a question for the developer to deal with – it is “not the authority’s job”.

The conclusion is clear although the underlying facts of the judgment take some unpicking. The first elephant trap to avoid is that whilst the case is part of the same saga arising from a local resident’s efforts to thwart development for a proposed solar farm in Hampshire, this is not an appeal from the High Court’s ruling in R (Fiske) v Test Valley Borough Council (Morris J, 6 September 2023) –  the case that endorsed the now well understood legal position in relation to the scope of section 73 permissions, that the development approved must not depart from the description of development on the face of the parent planning permission and must not constitute a fundamental alteration to the development approved by the parent planning permission. The court held in that case that removal of a substation from the approved development (a revised form of substation having been approved within the site by way of a separate planning permission) could not be achieved by way of section 73 given both that this conflicted with the operative wording of the parent permission that referred to a substation and given that the planning committee was not made aware of the removal of the substation from the proposals. (Here is Town Legal’s Town Library summary of that ruling).

In today’s Court of Appeal ruling, the question before the court was as to whether that separate planning permission had been granted unlawfully, given that at the time it was granted the subsequently quashed section 73 permission (to amend the rest of the scheme to be consistent with that permission) had not yet been granted (Sincere congratulations if you are still following this). As encapsulated by Lindlom LJ at the beginning of his judgment:

“Did a local planning authority err in law when granting planning permission for a distribution network operator (“DNO”) substation to connect a proposed solar park to the national grid? In particular, did it fail to have regard to an “obviously material” consideration by not taking into account the incompatibility of that planning permission with the permission it had previously granted for the solar park itself? These questions arise in this case. They involve principles of law that are already well established.”

Lindblom LJ then sets out the relevant legal principles in relation to the nature of material considerations and as to the incompatibility of planning permissions (our old friends Pilkington, Pioneer Aggregates and Hillside).

He goes on to agree with the conclusions of HHJ Jarman KC at first instance: the incompatibility of planning permissions or the prospect of some future breach of planning control was not a material consideration to which the council was required to have regard under any provision of the statutory planning code.

“The fact that the differences between the two proposals were obvious when the challenged decision was taken does not mean that their incompatibility was an “obviously material” and thus mandatory material consideration in the council’s decision. That would be a misconception. The planning system does not preclude the possibility of a number of applications for planning permission being made and granted for different developments on the same site. It accepts the granting and co-existence of mutually incompatible permissions, one or more of which may prove incapable of lawful implementation, whether in whole or in part, unless the incompatibility can be defeated by a further grant of permission under section 70 of the 1990 Act, or section 73. This was a point strongly emphasised in Pilkington.

There is nothing in the judgment of Lord Sales and Lord Leggatt in Hillside Parks, nor in Lord Widgery’s in Pilkington, or elsewhere in the cases to which counsel referred, to support the proposition that the incompatibility between a previously granted planning permission and an application seeking permission for a different scheme is a mandatory material consideration in the decision being taken, either as a general rule or in the “special cases” to which Lord Widgery referred.”

“In the light of the relevant reasoning in Pilkington, recently confirmed in Hillside Parks, and the cases on mandatory material considerations, I do not accept that the fact of the 2017 permission being expressly “associated” with the application for the 2021 permission made the incompatibility between the two permissions an “obviously material” consideration. Such incompatibility did not nullify or prevent the implementation of either the 2017 permission or the 2021 permission. It did not negate the principle of a solar park development on the site, which the 2017 permission had established. Nor did it go to the intrinsic planning merits of the substation proposal that the committee was now considering.”

“I see no force in the submission that the possibility of Woodington Solar acting in breach of planning control was itself an “obviously material” consideration. If the incompatibility of the two planning permissions was not an “obviously material” consideration, the future actions of a developer with the benefit of those two permissions cannot be seen as a matter on which the council needed to speculate. This was a question for Woodington Solar as developer. It did not bear on the planning merits of the proposal in hand.”

“For a large development such as this to require changes to be made to it in the course of design and construction is not unusual. It often happens. When it does, the developer may be expected to make such changes through the normal planning process. If he has the benefit of two or more planning permissions incompatible with each other, or potentially so, there may be lawful steps he can take to overcome that incompatibility and proceed with the development he wants to build. Sometimes this will not be so. In that case the incompatibility will remain, and the lawful implementation of one permission or the other, or both of them, will not be possible. But the local planning authority is not legally compelled to anticipate how the developer might later choose to deal with such inconsistency, or to assume that he will resort to unlawful means of doing so. That is not the authority’s job.”

Hear, hear.

Just waiting now from my NPPF present from DLUHC, although I suspect it may be very similar to what we all received this time last year…

Simon Ricketts, 15 December 2023

Personal views, et cetera

Photo courtesy of Neenu Vimalkumar via Unsplash

2023 Unwrapped (Or The Case Of The DLUHC That Didn’t Bark?)

A pause to reflect as we wait for the latest version of the NPPF finally to be published, possibly in the coming week.

My final post of 2022, It Will Soon Be Christmas & We Really Don’t Have To Rush To Conclusions On This New NPPF Consultation Draft covered the publication on 22 December 2022 of the consultation draft. Back then the final version was to be published in Spring 2023. Never trust a DLUHC time estimate…

That timescale assumed that the Levelling-up and Regeneration Bill would receive Royal Assent that Spring. Ho ho ho. The Act finally received Royal Assent on 26 October 2023, although, as set out in my 4 November 2023 blog post Act Up!, nothing substantive has yet come into force, most elements requiring secondary legislation with only limited sections being switched on from Boxing Day. (My firm has prepared a detailed summary of the planning reform aspects of the Act, running to some 41 pages. Do message or email me if you would like a copy.)

Judging from the tone of DLUHC’s 28 November 2023 response to the Levelling Up, Housing and Communities Committee’s reforms to national planning policy report, together with Mr Gove’s appearance before the Levelling Up, Housing and Communities Committee on 6 December 2023, we assume that the final version of the NPPF will reflect quite closely the December 2022 draft, but time will tell.

Of course, barring a general election in the meantime, in 2024 we will then have consultation on further proposed revisions to the NPPF, to reflect LURA’s proposed reforms to plan-making, and consultation on much else besides.

In the meantime, 2023 has seen yet more ministerial changes with Rachel Maclean sacked in favour of an expanded role for Lee Rowley. There have been at best sporadic attempts to discourage local authorities from withdrawing emerging plans (Spelthorne and Erewash). There has been a self-styled long-term plan for housing. There have been sporadic culture wars – for example the swipe at South Cambridgeshire District Council for its four-day working week trial (anyone remember localism? I have an old book to flog).

But has anything really moved the dial in terms of encouraging housebuilding or indeed encouraging economic activity? Far from it if yesterday’s Planning Resource headline is anything to go by: Number of planning applications plummets 12% year-on-year in latest quarterly government figures (8 December 2023, behind paywall)

Spotify-style, I looked back at which simonicity posts were most widely read, last year. Perhaps this list tells its own story – one of procedural hurdles, unnecessary complexity and political climbdowns. In order:

  1. M&S Mess (21 July 2023). We wait to see what the High Court makes of Mr Gove’s 20 July 2023 decision letter.
  1. Thank You Mikael Armstrong: New Case On Scope Of Section 73 (28 January 2023). The Armstrong case has now been supplemented by R (Fiske) v Test Valley Borough Council (Morris J, 6 September 2023). The scope of section 73 remains a live issue, although the legal boundaries are now pretty clear ahead of the coming into force of section 73B which will raise new questions.
  1. The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment (29 August 2023). The subsequent defeat suffered by the Government on this in the House of Lords was possibly DLUHC’s most embarrassing moment of the year, when taken with the subsequent, aborted, attempt by the Government to introduce a fresh Bill.
  1. New Draft London Guidance On Affordable Housing/Viability (6 May 2023). These are critical issues, particularly in London, and we need to understand as clearly as possible the Mayor’s position. But the GLA draft guidance continues to grow like topsy. Since that post in May we have also had draft guidance on purpose-built student accommodation and on digital connectivity – and in the last week we have had draft industrial land and uses guidance.
  1. Euston We Have A Problem (8 July 2023). Subsequent to the post there was then of course the Government’s total  abandonment of proposals for HS2 north of Birmingham (see my 4 October 2023 blog post, Drive Time) and wishful thinking as to a privately funded terminus for HS2 at Euston. It will be interesting to see what happens this coming year to the idea of a new “Euston Quarter” Development Corporation.

Incidentally, thank you everyone for continuing to read this blog, now in its eighth year (with more daily views than ever before), and for occasionally saying nice things about it. Believe me, I would otherwise have given up a long time ago. I did hope that I could pass it over to chatGPT next year but from early experimentation I suspect not:

Simon Ricketts, 9 December 2023

Personal views, et cetera

BNG For The Benefit Of Mr Kite

(plus other species obviously, yes including the beetles)

The post that follows is just really an excuse for the title. Its initial title was going to be The Unbearable Lightness Of BNG, but that didn’t quite fit – for one thing the biodiversity net gain arrangements that we now have in draft are certainly not light.

So what do we now have? At this government page we have the following documents, all dated 29 November 2023, save where indicated:

What biodiversity net gain is:

Land manager guidance:

Developer guidance:

Local planning authority guidance:

Calculate a biodiversity value:

Legal agreements:

Habitat management and monitoring plans:

Planning practice guidance:

We also have four separate sets of draft Regulations:

There is also some useful Planning Advisory Service guidance, Biodiversity Net Gain in Development Management , including examples of developer guidance, planning conditions and section 106 clauses and template agreements.

My previous criticism of the slight delay that there has been in publishing all of this, ahead of the regime taking effect in January 2024 (April 2024 for small sites and November 2025 for NSIPs), was perhaps a little harsh…

Having skimmed only much of this documentation, what have I picked up?

Some exemptions:

(a) small developments where an application for planning permission is made or has been granted before April 2024,

(b) developments with no impact on priority habitat and where impacts on other habitat fall below specified thresholds (namely less than 25 square metres of habitat that has biodiversity value greater than zero and less than 5 metres in length of linear habitat),

(c) householder applications,

(d) HS2,

(e) off-site gain developments i.e. developments which fulfil the biodiversity net gain requirement arising in relation to another development, and

(f) certain self-build and custom build developments.

Detailed provisions about phased developments.

The regime will not catch section 73 applications where the parent permission predates the coming into effect of the regime.

“Irreplaceable habitats” (which are not included in this regime – ie you cannot simply quantify the value of their loss and show a 10% net gain overall) are defined as including ancient woodlands and ancient/veteran trees.

Much detail as to how the register to be maintained by Natural England will operate.

Still no news as to which will be the “responsible bodies” with which owners will be able to enter into conservation covenants.

A solid step forward for the environment or just another technocratic “price of everything/value of nothing” system? Time will tell, but for now, in the words of Catriona Riddell’s least favourite band …

Let It BNG! This bird has flown. We can work it out. Strawberry fields forever.

Simon Ricketts, 2 December 2023

Personal views, et cetera

Red kite, courtesy of Wikipedia. (Where I live in west Hertfordshire, kites are these days such a common – and wonderful – sight).