Month: May 2024

Should Appeal Costs Decisions Be More Widely Publicised?

…because surely much of their value lies in guiding participants in future appeals as to the conduct that is expected of them – whether appellants, local planning authorities or third parties?

Ironically, the thought occurred to me due to an unusual headline in yesterday’s Planning magazine update, Inspector awards costs against both housebuilder and objectors for ‘unreasonable behaviour’ after allowing 1,730-home appeal (30 May 2024, paywall). Following on from the news on 24 May 2024 that inspector Christina Downes had allowed Taylor Wimpey’s long-running appeal in relation to up to 1,730 dwellings and associated development at Wisley Airfield, Guildford, I hadn’t been aware of her decisions the same day in relation to an application for costs made by Wisley Action Group, Ockham Parish Council and RHS Wisley against Taylor Wimpey and an application for costs made by Taylor Wimpey against Wisley Action Group, Ockham Parish Council and RHS Wisley.

The inspector made a partial award of costs against Taylor Wimpey on the basis of an error in modelling contained in a transport assessment which was not addressed until it was the basis for cross-examination at the inquiry. The inspector found that the objectors were put to unnecessary expense identifying the error, preparing written notes and extra evidence, recalling their highway witness and preparing and delivering cross-examination which all took an extra inquiry day.

Going the other way, the inspector also made a partial award of costs against the objectors, finding that there had been “unreasonable behaviour in the following respects:

• In the ecology evidence insofar as it related to matters that had already been addressed by previous decision makers; and in raising issues about the surveys, other than in relation to bats.

• In the highway evidence insofar as it related to the difference between the TA and ES in respect of peak traffic flows.

• In the planning evidence insofar as it persisted in raising issues about the principle of the development, but the costs limited to the cross-examination of this point and its preparation.”

In the context of an inquiry which ran to (by my reckoning) 32 days this may all be small beer but is an interesting indication of the extent to which parties may be prepared to put the behaviour of their opponents under the microscope.

There is of course detailed Planning Practice Guidance as to the award of costs in planning appeals, the basic principle being that costs may be awarded, either on the application of any party or at the instigation of the inspector, where a party has behaved unreasonably and the unreasonable behaviour has directly caused another party to incur unnecessary or wasted expense in the appeal process. I often have to explain to clients that, no, they can’t cover their wider commercial losses caused by that unreasonable behaviour…

My colleague Jack Curnow ran a search of appeal decisions today – there have been around 93 costs award decisions in the last 12 months. How much more might we learn if the key findings were made available, in the way that the Local Government and Social Care Ombudsman provides a comprehensive database of its rulings?

A couple of other interesting costs decisions spotted in the wild (on LinkedIn that is):

  • First of all, as with that first costs award at Wisley, a reminder that a party may end up winning the appeal but being on the receiving end of an award of costs for unreasonable behaviour. On 16 May 2024 Bellway Homes lost a planning appeal for a proposed development of 148 dwellings in County Durham, but (perhaps small comfort) secured an award of costs against Durham County Council on the basis that it had not substantiated three of its reasons for refusal (on effect on countryside, unacceptable harm to the landscape and on design). In relation to the remaining reasons for refusal – on planning and transport, where the relevant LPA witnesses appear to have made significant concessions under cross-examination, there is an interesting passage:

“In my view, the concessions made by the sustainable transport and planning witnesses rather than being a deficiency in the Council’s case were the result of a series of subtly directed questions by a skilled advocate and the inability of the witnesses to grasp the direction of the examinations.  That said concessions made by witnesses are material considerations in concluding on a proposal and I did not ignore them.  However, as the decisionmaker, whether I am bound by them is not, in my view, a binary choice.  As the various examples of Case Law referred to show, I am entitled to bring to bear my own judgement, both as a planning professional and an Inspector, to weigh the written and oral evidence before me.  This is particularly so where, as in this case, the final decision turned on a matter of planning judgement i.e., whether the proposal represented sustainable development and the relevant witness’s failure to grapple with the basis of their own evidence.  In this context, despite the direction that the cross-examinations took the witnesses, I consider the Council was able to substantiate its case in relation to the second main issue, sustainability.  On this basis, I consider that, continuing the case in the face of the planning witness’s concessions, the Council did not act unreasonably.”

[Who might that “skilled advocate” be, Hashi…?]

  • Secondly, an example of an appeal in relation to non-determination of the application within the statutory period (in this case an appeal, which was allowed on 2 April 2024, for up to 540 dwellings and associated development at Yarnton, Oxfordshire, where both the local planning authority and county education and highways authority were the subject of full costs awards in favour of the appellant, through not having resolved matters, ultimately conceded in the immediate run-up to the inquiry, far earlier in the process.

From the award against Cherwell District Council:

“The concerns of the Council set out in the putative reasons for refusal should have been addressed early in the life of the application; some of them, in particular those relating to green infrastructure, could have been dealt with as conditions on a planning permission or as part of a planning obligation. The fact that all the objections were withdrawn by the Council prior to the opening of the inquiry demonstrates that there was nothing substantive in the Council’s reasons for refusal that could not have been agreed much earlier in the process. As it was, the applicant was forced to address these matters through an appeal, and to produce revised material and re-consult at the appeal stage. It had to produce evidence on the reasons for refusal and, given that this was an appeal against non-determination, it had to produce adequate evidence on all matters relevant to the planning application to enable the decision-maker to reach a decision.

Although costs can only be awarded in relation to unnecessary or wasted expense at the appeal, the behaviour and actions of the Council at the time of the planning application can be taken into account in the consideration of whether or not costs should be awarded. The Council acted unreasonably in its handling of the planning application and the application should not have needed to come to an appeal. The Council delayed development that should clearly have been permitted, failed to produce evidence that substantiated each putative reason for refusal, and issued putative reasons for refusal on grounds that were capable of being dealt with by planning condition or in an obligation. The Council’s unreasonable behaviour led the applicant to the unnecessary costs of an appeal with the consequent need to maintain an appeal team with legal representation and to produce evidence on a wide range of matters.

For the reasons given above, unreasonable behaviour resulting in unnecessary or wasted expense has occurred and an award of costs against Cherwell District Council is therefore warranted, covering all the costs relating to the appeal, with the exception of the two matters which are the subject of the costs claim against Oxfordshire County Council.”

From the award against Oxfordshire County Council:

“Costs should only be awarded against a third party in exceptional circumstances. In this case those circumstances exist. The County Council’s position was critical to the progress of the planning application and subsequent appeal because of its role as a main party to the s106 obligation, and it bears full responsibility for the delay and costs incurred in addressing the matters discussed above. The matter of the playing field access was capable of being addressed much earlier as part of the planning application if the County Council had taken a reasonable approach, and should never have had to come to appeal. The County Council did not defend its position at the inquiry. The request for a contribution for the Cassington Road to Peartree Interchange highways works should never have been made. The County Council behaved unreasonably in both respects and caused the applicant to incur unnecessary expense in addressing these issues in respect of legal representation, expert witnesses, the preparation of statements of case, proofs and rebuttals, and in having to seek information and prepare a legal opinion to inform the inquiry. A partial award of costs is therefore warranted.”

[NB the highways contribution point may be of wider interest: the county council had sought a contribution towards highways works “which were not dependent on the development and which had already been funded from the public purse and built”!]

Some other costs decisions this year that may be of interest:

  • An award in favour of Bellway Homes in relation to an appeal in Stroud, where planning permission was granted for 54 dwellings. In his decision letter dated 20 May 2024 the inspector awards costs against Stroud District Council largely through its failure to grapple properly with biodiversity net gain issues:

“In a large part, the reason for the appeal is because the Council failed to review, accept and liaise with the appellant on the Mitigation Hierarchy Review. In my view, this necessitated the submission of the appeal. In addition, the

Council’s lack of engagement added unnecessary time at the hearing and necessitated further time being given to the main parties to agree the wording of a Grampian condition after the close of the hearing.

I am cognisant that the position on the value of high value habitats has been clarified with the statutory metric coming into force and has confirmed the basis on which such units can be traded and that this has been a recent change that the Council has not been obliged to accept. However, given that the Council were not seeking to resist the principle of development, the absence of indication that the appellant had met the expectations of the hierarchical approach should have been provided at an earlier point in time to have paved the way for more meaningful negotiations on the mitigation package. This concession was only made at the hearing in person, with the written evidence still having largely maintained a defensive position.

In view of this, my conclusion is that the Council has behaved unreasonably, for reasons including its failure to determine a planning application based on an issue that was capable of being dealt with by condition and failing to review and clarify its case promptly following the lodging of an appeal.”

  • A full award of costs in favour of the promoter of a solar farm in Rayleigh. The appeal was allowed on 11 March 2024 and full costs were awarded against Rochford District Council. The decision to refuse the application had been made by members against officers’ recommendations. The inspector concluded:

“Overall, I consider that the Council has not produced relevant evidence at appeal stage to support their decision to refuse planning permission and has therefore delayed a development that should have been permitted, having regard to the development plan and other material considerations. It has also been inconsistent in its decision making. I therefore consider that the Council’s approach does represent unreasonable behaviour, and this has resulted directly in the need for this appeal.”

The council tried to make the case that it was difficult to find private sector consultants to support them. The inspector didn’t think much to that excuse!

“In the rebuttal to the cost claim it was suggested that it is difficult for members to provide a substantial evidence base as few consultancies will take on such work as it would be likely to lose them future work as they would be known as “Council lovers”. Whilst in my experience consultancies quite regularly support Council’s at appeal, even if that were the case this does not absolve the Council from the need to substantiate the reasons for refusal at appeal.”

  • Finally, a reminder to councils of the need to engage in pre-app discussions. An appeal in Mole Valley was dismissed on 28 February 2024, but with the appellant awarded its costs due to the council’s failure to engage at pre-application stage:

“In respect of the appellant’s attempt to engage with the Council at the pre-application stage, I note that the Council suspended these services due to resourcing limitations. Although not binding, this process, if it had been available, would have been an opportunity for the Council to raise any concerns at an early stage in respect of design, living conditions and affordable housing provision. The appellant, therefore, would have been well-informed and provided with the opportunity to amend the scheme as necessary.

The Council’s resourcing is not a matter for the appellant, who sought an effective, positive and pro-active approach at an early stage. Given that the Council has an established pre-application function, which was suspended for a time, and which did not allow the appellant to use it, amounts to unreasonable behaviour. This is my view, irrespective of the Council’s communications later in the process.

For the reasons given above, unreasonable behaviour resulting in unnecessary or wasted expense has occurred in respect of pre-application advice and a partial award of costs is therefore warranted.”

I could go on, and on. There are so many. There’s a lesson in each decision – whether as to how parties should behave or as to how the system itself, under-resourced as it is, may be failing us all. After all, perhaps penalising authorities with costs awards is simply adding to the resourcing problem – it certainly is if costs awards do not influence future behaviour. So as well as my suggestion that these decisions should be more widely publicised, I would go further: when an award is made against an authority and the amount of costs payable has been determined, by negotiation or following reference to a High Court costs judge, why shouldn’t authorities be under a duty to publicise to their members and to their local electorate the financial consequences of what has happened and why?

Simon Ricketts, 31 May 2024

Personal views, et cetera

Extract from photograph by Elena Mozhvilo courtesy of Unsplash

Coded Hints As To Labour’s New Towns Thinking

Shadow Secretary of State Angela Rayner’s speech at UKREiif in Leeds on 21 May 2024 was interesting, particularly on new settlements. I have emboldened some key passages below:

“New Settlements

And while we work with the grain of local communities and their character, we’ll also consider how urban regeneration and extension can play their part.

We want homes on these sites within the first term of a Labour government.

But these new large settlements must be built in the right place, in partnership with local people.

This is why an expert independent taskforce will be set up to help choose the right sites and a list of projects will be announced within our first 12 months of government, so we can start building the towns of the future within months, not decades.

Our next generation of New Towns will build homes fit for the future. Creating places where people want to live. Inspired by garden suburbs like Hale in Manchester, Roundhay in Leeds, and the Garden City project

But let me be clear – I will not simply demand “more units, at any cost”.

The reason many local communities resist new homes is often because the housing is of the wrong type, in the wrong place – it doesn’t come with the schools, GP surgeries and green spaces that make communities, not just streets.

Or the affordable and social housing local people need.

Our next generation of New Towns will build homes fit for the future. Creating places where people want to live. Inspired by garden suburbs like Hale in Manchester, Roundhay in Leeds, and the Garden City project.

We will set out a New Towns Code – criteria that developers must meet in these new settlements:

More social and affordable homes – with a gold standard aim of 40%

Buildings with character, in tree-lined streets that fit in with nearby areas

Design that pays attention to local history and identity

Planning fit for the future, with good links to town and city centres

Guaranteed public transport and public services, from doctors’ surgeries to schools

And access to nature, parks, and places for children to play “

New Towns are just one way we get good quality, affordable houses built in the national interest.

Our local housing recovery plan will reverse the Conservatives’ damaging changes to planning, getting stalled sites moving at speed.

We’ll give Mayors the tools they need to deliver homes in their areas, revitalising brownfield first, unlocking ugly, disused grey belt land for housebuilding and setting tough new conditions for releasing that land.

Our ‘golden rules’ will ensure any grey belt development delivers affordable homes, new public services, and improved green spaces.

This means more social and affordable homes and we will ensure that brownfield sites are approved quicker so homes get built fast.

Together, we will unleash the biggest wave of affordable and social housing in a generation.

Because a safe, secure, affordable home is the foundation of a good life.

We can see the consequences when that foundation is taken away.

Today, there is an epidemic of homelessness and rough sleeping in Britain.”

Some intriguing aspects here that go beyond the Labour Party’s Plan to Power-Up Britain that I covered in my 13 April 2024 blog post Powering Up Britain  and beyond Sir Keir Starmer’s party conference speech in October 2023 (see 10 October 2023 BBC piece Keir Starmer promises to build new towns and 1.5m homes). Particularly intriguing that “an expert independent taskforce will be set up to help choose the right sites and a list of projects will be announced within our first 12 months of government, so we can start building the towns of the future within months, not decades.”.

The huge question will be how to avoid previous governments’ false starts and missteps. The last Labour government’s eco-towns programme was similarly ambitious, with preferred sites arrived at on the basis of criteria set out in a prospectus which became hotly contested by those whose sites were not selected and by local campaigners. A High Court challenge to the process failed but, given time slippages, the programme was ultimately overtaken by the 2010 General Election. The judgment in the case, Bard Campaign v Secretary of State (Walker J, 25 February 2009) makes for interesting reading as to the context. For a wider piece setting out subsequent proposals by the present government for “locally-led” new towns see my 11 July 2020 blog post The New Towns Question (Again) .

Full marks for ambition but how to balance speedy top-down decisions as to quantum, potential locations, scale and so on (however “independent” “expert” led) with ensuring that (1) there is a joined up plan to deliver the necessary infrastructure (2) schemes have sufficient local buy-in (3) schemes are commercially viable (4) there is a fit-for-purpose consenting process if building is to start “within months” (polite cough) and (5) all legal trip hazards in terms of, for instance adequate assessment and consultation can successfully be navigated? Those will be some of the questions.

And the “gold standard aim of 40%”  affordable housing is an interesting political phrase!

Simon Ricketts, 25 May 2024

Personal views, et cetera

Planning: Pre-Election Period Guidance

This will be this blog’s third general election and may result in its seventh prime minister.

The Cabinet Office today published its General Election Guidance 2024 (23 May 2024), its guidelines as to what activities should and should not be undertaken by ministers,  civil servants and non-departmental public bodies during the pre-election period to 4 July 2024, following the Prime Minister’s announcement yesterday. It comes into effect on 25 May 2024.

For commentary as to the implications for decision making on planning matters, at national and local levels, see my 1 November 2019 blog post Dial P For Purdah.

The Planning Inspectorate has also today (23 May 2024) published its approach to casework during the pre-election period 2024 . Key passages:

“The Planning Inspectorate always aims to issue decisions and recommendations promptly.  However, in the run-up to the General Election we are concerned to ensure that decisions or recommendations relating to proposals which have raised sensitivities or interest in an area cannot be deemed to have influenced the election in any constituency or, more broadly, across the country, or have been used to electoral advantage by any interested body. 

Whether a decision or recommendation should be held back until the election results have been announced is a judgement taken by senior managers in the Planning Inspectorate on the circumstances of the case.  We shall of course ensure that any such delayed decisions or recommendations are issued promptly after the election.”

“All scheduled local plan examinations and hearing sessions will continue during the pre-election period and new examinations will also begin. 

However, in order to avoid making announcements that could be politically sensitive, the Planning Inspectorate will not be issuing any letters regarding the soundness or legal compliance of local plans, or final reports (including for fact check), until after the election.”

You may also find useful the Local Government Association’s advice on publicity during the pre-election period. Note to LPAs:

“You are allowed to:

continue to discharge normal council business (including […] determining planning applications, even if they are controversial)”

Simon Ricketts, 23 May 2024

Personal views, et cetera

Grassroots Music Venues Report/Agent Of Change

Been there, got the t-shirt.

I support grassroots music venues. I’ve blogged a few times in the past about the agent of change principle. And I’ve just read today’s report by the House of Commons Culture, Media and Sport Committee on the steps it recommends to halt the worrying rate at which these venues are closing (two a week and the total number in the country declining last year from 960 to 835), which includes recommendations to strengthen the agent of change principle. Music Venue Trust has played a vital role in drawing attention to the issue.

Previous relevant posts:

As with many public policy issues (housing, the economy, climate change, inequality, health disparities), we in our planning bubble need to remember that when it comes to protecting the conditions for grassroots culture to flourish, whether for its own sake or to grow the next stadium acts, the operation of the planning system is only one part of the problem – but the planning system does need to put its shoulder to the wheel.

The report includes calls for:

  • A comprehensive review by the Government (by summer 2024!) to fully examine the long-term challenges to the live music ecosystem
  • A voluntary levy on large venues by September 2024 and “if a widespread voluntary levy is not in place by September 2024, or if its level does not stem the tide of closures, the Government should introduce a statutory scheme.”
  • Temporary VAT cut and simplification of processes for grant applications, as well as resolution of disputes within the industry on performing rights payments and the like.
  • Placing the “agent of change” principle, which has been in the National Planning Policy Framework since 2018, on a statutory basis.

Briefly on that last point, the agent of change principle forms paragraph 193 of the current NPPF:

“Planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (such as places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. Where the operation of an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or ‘agent of change’) should be required to provide suitable mitigation before the development has been completed.”

Paragraphs 90 to 95 of the report consider how the policy is applying in practice. It was recognised that policy represented progress, however concern as to how local planning authorities interpret and apply it. The Committee supported calls for it to be given more teeth by way of being placed on a statutory footing “at the earliest opportunity”.

Everyone of course calls for legislation about everything. I hope that any subsequent Government review examines this specific aspect in more detail: to what extent is the policy not working and in what respects and in what ways would legislation assist without unintended consequences?

Those with long memories may recall that Labour tried to include such a provision into the Housing and Planning Bill back in 2016.

Just reflecting on what we gain from protecting and encouraging these venues (have you been to the relatively new, cosy but fabulous, Lafayette venue in Argent’s Kings Cross development?), it’s not just about nurturing artists – one great quote from the report, courtesy of a participant from Manchester: “Taylor Swift’s lighting director didn’t start out as Taylor Swift’s lighting director”.

These venues can sometimes even be the catalyst for the rebirth of a whole city – I recommend the excellent book Manchester Unspun – How A City Got High On Music by Andy Spinoza for a description of possibly the world’s most extreme version of this (and let’s not currently mention Co-op Live shall we?).

Simon Ricketts, 11 May 2024

Personal views, et cetera

The Brookgate Cambridge Decision Versus Water Scarcity

I fibbed on LinkedIn last weekend when I said that the reason for no simonicity post was a lack of news. To be honest, it was more about a lack of time – actually having a weekend off to be rained on in the west country.

Over to the east of England, Cambridge to be specific, there was certainly some news that needs unpacking. This rainy bank holiday I do now have time. And inevitably it’s on the issue of water scarcity – which I touched on in my 16 March 2024 blog post Water Water Everywhere, Nor Any Drop To Drink.

The Secretary of State’s decision letter dated 23 April 2024, allowing a recovered appeal by Brookgate Land Limited against South Cambridgeshire District Council’s failure to determine a planning application for a large mixed-use development, including up to 425 homes, at land north of Cambridge North Station is worth reading for anyone either:

  • grappling with the implications of the Environment Agency’s advice in relation to a planning application, whether in relation to water scarcity issues or other matters on which it expresses views as a statutory consultee; or
  • frustrated by how the planning process can be elongated at a late stage by issues raised in relation to matters supposedly to be addressed by way of separate statutory regimes.

Brookgate’s application for planning permission had been submitted on 14 June 2022 (not 2023 as recorded in the inspector’s report). The appeal was submitted in January 2023. At that point the Environment Agency’s comments on the application, by letter dated 7 November 2022, were some way short of a formal objection:

“Evidence in the emerging Integrated Water Management Study for the Greater Cambridge Local Plan indicates that groundwater abstraction to meet current needs is already causing ecological damage to Water Framework Directive (WFD) designated waterbodies (including chalk streams) or there is a risk of causing deterioration in the ecology if groundwater abstraction increases. The area also hosts several chalk streams which are internationally recognised habitats, sensitive to the availability of groundwater baseflow and vulnerable to low flows. This development has the potential to increase abstraction from groundwater sources. You should consider whether the water resource needs of the proposed development alone, and in-combination with other proposed development that the relevant water company is being asked to supply, can be supplied sustainably without adverse impact to WFD waterbodies and chalk streams. At the present time we are unable to advise with confidence that further development will not harm the water environment, until it can be shown sustainable water supplies can be provided.

The Local Planning Authority must have regard to River Basin Management Plans and be satisfied that adequate water supply exists to serve development, in accordance with the policies of the Local Plan.

Should the development be permitted, we would expect you to ensure that the new buildings meet the highest levels of water efficiency standards, as per the policies in the adopted Local Plan.

Your authority should ensure that the local Water Recycling Centre has sufficient capacity to accept foul drainage from the proposed development to ensure protection of the water environment including WFD waterbodies.”

The appeal was recovered by the Secretary of State for his own determination on 24 March 2023 for the following reason: “the appeal involved proposals for residential development of over 150 units or on a site of over 5 hectares, which would significantly impact on the Government’s objective to secure a better balance between housing demand and supply, as well as create high quality, sustainable, mixed and inclusive communities.”  (nothing stated about water scarcity).

The inquiry opened on 6 June 2023 and sat for 12 days. It was adjourned on 23 June 2023 to allow for further work to be completed on water scarcity, received and then commented on by the parties. On 8 March 2024 the parties were then given an opportunity to comment on the joint statement on addressing water scarcity in Greater Cambridge that I had mentioned in my 16 March 2024 blog post.

It was agreed between the Environment Agency and the appellant before the inquiry that “the standard of mitigation measures required for this application is a matter for the decision-maker” (paragraph 5.57 of the inspector’s report).

South Cambridgeshire District Council invited the Secretary of State to consider “whether it would be appropriate, alongside the water efficiency measures to be secured through final draft planning conditions to:

1. Manage the additional demand on water resources arising from the development proposals, by delaying the occupation of development until 2032.

2. Link the development to the delivery and operation of the specific strategic water supply intervention measures necessary to deliver water supplies to the region, as identified in an approved Regional [Water Resources Management Plan] and/or {Cambridge Water’s Water Resources Management Plan].” (paragraph 7.120 of the inspector’s report).

The appellant considered that such a condition was not necessary. The inspector agreed but, in the event that the Secretary of State disagreed, proposed an “optional” condition for the Secretary of State to consider. The inspector’s conclusions on the water scarcity issue are at paragraphs 14.139 to 176 and need to be read in full if this issue is directly relevant to you. However I note:

  • The inspector considered that limited weight could be placed on the modelling evidence submitted to the inquiry and he concluded that “the evidence specifically submitted for consideration to the Inquiry does not demonstrate that abstraction is contributing to ecological deterioration” (paragraph 14.157)
  • “Notwithstanding this, it is evident that there is a water supply issue within the Greater Cambridge Area. The Council draws attention to planning applications for over 9,000 homes and 11,000 jobs that are unable to be determined. It also advises that additional development at the Cambridge Biomedical Campus and Life Sciences Campuses risk being put on hold, together with work on the new Joint Local Plan which cannot confidently progress to its next stage.  The Council has also written to Ministers seeking a solution to the issue. It is probable that there are similar issues in other Local Planning Authorities across the [Cambridge Water] area.” [paragraph 14.158]
  • “There is a balance to be struck between the levels of growth proposed and measures to manage the supply and demand for water resources, as well as a need for mitigation measures.  This can be managed by reducing demand and/or increasing supply. The balance and any mitigation measures are a strategic matter for the WRMP, as confirmed by NPPF paragraph 20(b), and is not a matter for this appeal. The preferred approach may have significant consequences for Greater Cambridge and the Government’s vision for this area.” [paragraph 14.163]
  • “Water resources should ordinarily be a strategic matter and not considered as part of a planning application. In this instance, the development plan was adopted in 2018, and it would seem that the concerns in relation to water quality were not known at that date.  Indeed, even the EA’s initial response to the appeal proposal did not identify this as an issue. The Council is of the view that the issue of water stress has been appropriately considered by applying Policies CC/4 and CC/7 relating to water efficiency and water quality issues. This is on the basis of an appropriate package of mitigation being secured through agreed planning conditions.”  [paragraph 14.166]
  • “It is a matter for the Secretary of State to determine whether the water supply and quality issues within Cambridge are so pressing that their resolution cannot be managed by the usual statutory process and any initiatives emerging from the Water Scarcity Working Group. He will need to consider whether the statutory process and other measures in place in respect of water supply are sufficiently robust to ensure that the proposal, together with other development, would avoid placing an unacceptable demand on water resources and potentially harm ecological interests.

…Should the Secretary of State conclude that water demand would have unacceptable consequences for water supply and quality he may wish to consider imposing an additional condition that would delay the occupation of the development until the WRMP is approved or the Grafham Transfer is operational.

The benefit of imposing such a condition must be balanced against the delay in delivering the benefits of the proposal, particularly the economic benefits, and the delivery of housing. In my view such an approach would have the potential to stall development within the Greater Cambridge area as a whole, perhaps over a prolonged and unknown period of time, since the entire area is served by CW. This uncertainty could also have implications for the future growth of Greater Cambridge, including at locations such as Cambridge University and the Cambridge Biomedical Campus which is a world-renowned centre of excellence and research for Life Sciences.”  [paragraphs 14.173 to 14.175]

The “optional” condition set out by the inspector was as follows:

“The dwellings and commercial accommodation hereby permitted shall not be occupied until either the Grafham Transfer is operational, or the Water Resources Management Plan for the Cambridge Water operating area covering the period 2025 to 2050 is published following approval by the Secretary of State and any intervention measures necessary to maintain and deliver water in advance of the Grafham Transfer have been implemented.”

The inspector delivered her report to the Secretary of State on 25 January 2024. Following the further representations on the March 2024 announcement the Secretary of State concluded in relation to water scarcity as follows in his decision letter, allowing Brookgate’s appeal:

“33. The Secretary of State has carefully considered the effects of the proposal upon water supply. The Secretary of State has noted the Inspector’s judgement at IR14.169 that while water quality and supply is a material consideration, the proposal would not in itself harm water quality or water resources, but that cumulative impacts of the appeal proposal with other development would add to demand for water.

34. The Inspector acknowledges in this context that a sustainable supply of water for the Cambridge Water area may not be available for several years (until after the Grafham Transfer is operational). The Inspector leaves for the Secretary of State the decision as to whether the statutory process and other measures in place in respect of water supply are sufficiently robust to ensure that the proposal, together with other development, would avoid placing an unacceptable demand on water resources and potentially harm ecological interests (IR14.173).

35. The Inspector proposed an optional condition be placed on an approval which would delay the occupation of development until either the Grafham Transfer Water supply option is operational or the Water Resources Management Plan (WRMP) for the Cambridge Water operating area is approved (IR14.174).

36. Since the conclusion of the Inquiry and the recommendation made by the Inspector, the March 2024 Joint Statement on addressing water scarcity in Cambridge has been published by the Department for Levelling Up, Housing and Communities (DLUHC), Department for Environment Food and Rural Affairs (Defra), the Environment Agency and Greater Cambridge Shared Planning Service (which manages the planning service for Cambridge City Council and South Cambs District Council). This statement announces the development of a water credits market to supplement and potentially accelerate delivery of the water management measures to meet all of the areas future water needs being promoted by Cambridge Water through its WRMP, alongside wider communications to reduce water use in the area. Paragraph 9 of the Joint Statement states that modelling demonstrates that the scheme should deliver water savings that are sufficient to address concerns raised around sustainable water supply to the Cambridge area.

37. In the context of the publication of the Joint Statement, the Secretary of State considers that the proposal accords with Policies CC/4 and CC/7, and with national policy on water use and supply, and would not have an unacceptable consequence on water supply and quality. As a result, the Secretary of State considers the proposed optional condition is not necessary, and considers that matters relating to water supply and quality are neutral in the planning balance.”

Of course, this does not ease the pressure that there has to be on the Government, Cambridge Water and relevant agencies to ensure that there is indeed adequate water supply for the development when the taps eventually need to be turned on, but it is a welcome signal from the Secretary of State that strategic issues of this nature, for which there are whole statutory regimes set up supposedly to ensure that the necessary infrastructure is in place to accommodate the needs arising from planned development, are not necessarily a matter to derail the planning applications process. Goodness knows, we can think of so many issues at the moment which are doing just that – it’s the most constant theme of this blog!

Simon Ricketts, 4 May 2024

Personal views, et cetera