Month: July 2024

What To Look Out For With This Week’s Promised Draft Revised NPPF

As Zack Simons noted in his LinkedIn post this morning (27 July 2024), there was a detailed story in today’s Times as to what will be in the consultation draft revised NPPF. As Zack summarises:

“-  Tuesday’s the day. 

–   8 week consultation, new NPPF adopted late September. 

–   “Mandatory housing targets” going up by 50%. 

–   That’s a circa 100,000 home national increase to what we now call “local housing need”. Changes include: (i) “toughened” affordability ratios “to take account of how many people might move into an area if housing was cheaper”, and (ii) no use of “previous oversupply of housing to reduce future targets”. 

–   Councils “must review protections for the green belt if they cannot meet their housing need on brownfield land”.”

It’s such a detailed story that depressingly the new Government is obviously continuing the previous Government’s routine practice of trailing imminent significant announcements in the weekend newspapers as unattributed news stories rather than first announcing them in Parliament. Easy spin, easy journalism.

However, the story is totally and deliberately useless as anything that can yet be relied upon.

Here are some of the things I’ll be looking to understand on Tuesday (no surprise it’s Tuesday: that’s when the House of Commons rises for the summer):

  • I assume that the consultation document will be accompanied by a ministerial statement setting out the Government’s policy objectives underlying the document. This is important because, subject to anything specified to the contrary, then the statement and at least the direction of travel demonstrated by the draft is capable of being a material consideration in the determination of planning applications and appeals, with the weight to be given to it a matter for the decision maker. Depending on its potential relevance to current applications and appeals, the decision maker may choose to invite representations as to the implications for the particular application or appeal of what has been published, and, indeed, in some circumstances decisions may be susceptible to legal challenge if such an announcement is “obviously material” and not taken into account. So as much as its content, what will be important will be the tone of the consultation (is the consultation just about detailed wording or is it more open-minded, testing alternative potential approaches?) and of the accompanying statement or statements (particularly, what is said about its immediate intended effect). (And incidentally what we don’t want is for decision-makers to conclude that they need to wait for the final version!)
  • What transitional arrangements, if any, are proposed in relation to emerging and adopted local plans before their policies are to be treated as out of date by virtue of the new policies and targets? After all, we still have a plan-led system.
  • To what extent will the requirement that councils “must review protections for the green belt if they cannot meet their housing need on brownfield land” simply be a peeling back of the December 2023 revision to the NPPF?
  • If local housing targets are going to be increased, does this mean that the consultation process will include (long awaited) proposed revisions to the standard method? If so, how extensive will the changes be? For instance will the 35% uplift remain for England’s 20 largest towns and cities?
  • Is this going to be a “big bang” set of NPPF changes delivering on all that has been previously trailed by Labour, for instance giving some reality to the “grey belt” notion, or (possibly more pragmatically) are we to expect a further set of revisions before long, possibly alongside a proposed initial set of national development management policies and/or alongside guidance to reflect the amended local plans system enabled by the Levelling-up and Regeneration Act?
  • What about anything other than housing?
  • When really will we see the final version? Eight weeks’ consultation takes us to the end of September. To avoid an obvious legal challenge, the Government will need to consider properly the representations received (and there will be many). My bet is that the final version will be October at the earliest (12 October is the 100th day after the election and they will be going very fast to publish by then…). 

Anyone else remember the annual Beaujolais Nouveau races? That used to be how the industry routinely did business development, for better or worse, before we all became amateur journalists. These days its more sober and less fun replacement is the “who can get their NPPF text mark-up up first on LinkedIn” game. But that’s a young person’s sport. I’ll be truffle-hunting instead for the answers to those seven questions. 

Simon Ricketts, 27 July 2024

Personal views, et cetera

Photo by Maja Petric courtesy Unsplash

Hope/No Hope

I know, it’s the hope that kills you. We still await any real detail as to the new government’s proposed reforms of the planning system, despite the King’s Speech and background briefing paper (17 July 2024) and despite newspaper headlines, TV news vox pops and much earnest speculation from many of us. But it’s early days and we should be patient.

In this post I just want to focus on the proposed reforms to compulsory purchase compensation which would in some cases remove the ability of landowners to recover “hope value”.

We know that there will be a Planning and Infrastructure Bill. We do not know anything more as to its likely contents than is set out on pages 17 to 19 of the background briefing document. It is intended to “accelerate housebuilding and infrastructure delivery” by:

  • streamlining the delivery process for critical infrastructure including accelerating upgrades to the national grid and boosting renewable energy, which will benefit local communities, unlock delivery of our 2030 clean power mission and net zero obligations, and secure domestic energy security. We will simplify the consenting process for major infrastructure projects and enable relevant, new and improved National Policy Statements to come forward, establishing a review process that provides the opportunity for them to be updated every five years, giving increased certainty to developers and communities.
  • further reforming compulsory purchase compensation rules to ensure that compensation paid to landowners is fair but not excessive where important social and physical infrastructure and affordable housing are being delivered. The reforms will help unlock more sites for development, enabling more effective land assembly, and in doing so speeding up housebuilding and delivering more affordable housing, supporting the public interest.
  • improving local planning decision making by modernising planning committees.
  • increasing local planning authorities’ capacity, to improve performance and decision making, providing a more predictable service to developers and investors.
  • using development to fund nature recovery where currently both are stalled, unlocking a win-win outcome for the economy and for nature, because we know we can do better than the status quo. Our commitment to the environment is unwavering, which is why the Government will work with nature delivery organisations, stakeholders and the sector over the summer to determine the best way forward. We will only act in legislation where we can confirm to Parliament that the steps we are taking will deliver positive environmental outcomes. Where we can demonstrate this, the Bill will deliver any necessary changes.”

All we are told so far about reform of compulsory purchase compensation is in that second bullet point. But of course, the Levelling-up and Regeneration Act 2023 already goes some way in this direction. Section 190 (“power to require prospects of planning permission to be ignored”) amended the Land Compensation Act 1961 to enable an acquiring authority, when submitting a compulsory purchase order for confirmation, to include a direction that the prospect of planning permission is to be ignored where the underlying project will deliver the provision of a specified number of affordable housing units. If the acquiring authority does not deliver the scheme it promised (including the provision of specific numbers of affordable housing units) within 10 years of the issuing of the original direction, or earlier where there is no realistic prospect that the scheme can be delivered within 10 years, affected landowners may ask the Secretary of State (or the Welsh Ministers for CPOs in Wales) to issue a direction that additional compensation may be paid to them by the local authority. The Act also provides for an equivalent mechanism in relation to some CPOs for NHS purposes or educational purposes. These provisions all came into force on 30 April 2024. (How did a Conservative government arrive at this incursion into the traditional compulsory purchase principle of “equivalence”? See eg my 11 June 2022 blog post Land Value Capture Via CPO which tracks the proposal back to at least the Conservative May 2017 manifesto and for a deeper historical dive into the vexed issue of land value capture I recommend Richard Harwood KC’s brilliant paper delivered to the Compulsory Purchase Association in April 2018, Land Value Capture).

So how might the new government go further? The Labour manifesto simply said “We will take steps to ensure that for specific types of development schemes, landowners are awarded fair compensation rather than inflated prices based on the prospect of planning permission”. It seems to me that the government has deliberately left itself the scope to widen the categories of CPO for which compensation can exclude any element of land value attributable to the prospect of “no scheme world” development. The Planning and Infrastructure Bill would be a straight-forward vehicle to achieve this, by amendment of section 190 of the 2023 Act.

“Fairness” is of course a loaded word, going to the heart of the political as well as practical issues which land value capture inevitably gives rise to. To what extent should the state be able to take land without paying the owner what that land is worth in the open market? The nuanced answer to that question probably lies in the wording of the European Convention on Human Rights. The right to respect for private and family life and our home is qualified: “except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The right not to be deprived of our possessions is similarly qualified: “except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” And the state has the right to “enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

I can see that the “public interest” argument can be made in relation to affordable housing, the NHS and schools (although of course it is still at root a political decision to fund these projects in part via land value capture rather than by way of public spending paid for by other taxation measures). It will be interesting to see how much further the new government looks to go. New towns? Green Belt? Shrugged shoulders emoji.

Aside from the politics (which are beyond my pay grade), there are the practical issues (which are well within it). How will the spectre of compulsory acquisition of land, for less than what in the real world it is worth, influence the strategies of the participants? Will developers look to work pro-actively with local authorities to explore the potential for using the mechanism to achieve viable projects? Will land owners and promoters be discouraged from early land promotion activity for fear that the value gains they achieve will not be realised by them? Will processes become even more contentious given even higher stakes, particularly where land owners can show that they can bring forward development without the need for exercise for exercise by the local authority of its compulsory purchase powers?

All should be clearer before too long – at least, here’s hoping.

Simon Ricketts, 21 July 2024

Personal views, et cetera

Extract, courtesy Wikipedia, from Shepard Fairey’s Barack Obama 2008 electoral campaign poster, featuring the word “hope“.

Back To Basics

No this isn’t back to basics in a John Major way.

As a sorbet course to be enjoyed as a palate cleanser between the excitement last week of the general election and associated announcements and the excitement of further announcements promised by MHCLG (RIP DLUHC) later this month (plus this Wednesday’s King’s Speech), I thought we might look at a couple of Planning Court rulings this month which provide reminders as to some development management procedural fundamentals.

R (Gurajena) v London Borough of Newham (Deputy High Court Judge Timothy Corner KC, 5 July 2024) – what is the extent of the duty on a local planning authority to (1) notify “adjoining” owners and occupiers of an application and (2) publicise changes made to an application after initial consultation has taken place?

This case concerned a planning permission for works to a terraced house at 5 Silver Birch Gardens, West Ham. The proposed works comprised the construction of a rear extension, rear garden decking and an outbuilding. The grant of permission was challenged by way of judicial review by the next door neighbour at no 6 and another neighbour two houses away at no 8. They had objected to the application on grounds of privacy, overlooking and effect on visual amenity (although no 8 had not been notified of the application by the council, despite having been consulted in 2022 in relation to a proposed dormer loft extension and associated works to the roof).

Once the permission had been issued the claimants had realised that amended drawings had been submitted after their objections had been received, changing the location of the stairs to the decking and replacing a close boarded timber fence between numbers 5 and 6 with the retention of a low picket fence. The claimants argued that there was (1) a breach of Article 15 (5) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (which requires that “adjoining” owners and occupier be notified) given that no 8 had not been notified (2) a breach of no 8’s legitimate expectation that they would be consulted (having been consulted over the 2022 application) and (3) procedural unfairness by way of the council’s failure to carry out any further consultation despite a material change to the application after the close of the consultation period.

The judge held:

  • “”adjoining” in Article 15 of the DMPO embraces not just properties which are contiguous, but also those which are “very near to” or “lying close to” the application site”…”Whether one site is “very near to” or “lying close to” another requires judgement, and that judgement is one for the local planning authority. The court will interfere with the authority’s judgement only if it is Wednesbury unreasonable, by reason of being a judgement that is so unreasonable that no reasonable authority could have reached it.” The council’s decision in this case could not be impugned as being unreasonable.
  • “In my judgement the Second Claimant did not have a legitimate expectation that she would be consulted about the Application. The reality is that a judgement was reached in the case of the 2022 application as to whom to consult, based on the anticipated impact. The Application in the present case was different, being at ground floor level only. The fact that no. 8 was consulted once about a planning application different in nature from the Application does not amount to a practice of consultation sufficiently settled and uniform to amount to a clear, unambiguous and unqualified promise to consult the Second Claimant on a planning application having the nature of the Application.”
  • The application plans were confusing and there was clearly confusion as to what was shown on the original application plans and therefore as to the extent to which the revised plans amounted to changes to the proposals which had previously been consulted upon. The judge found that the first claimant had already made clear in her objections that even a close boarded fence in place of the existing low picket fence would not be acceptable so there was no requirement to re-consult her on that aspect. However, in relation to the stairway to the decking: “I accept that an assessment of whether the outcome for the First Claimant might have been different (i.e. refusal of the Application) had she had the chance to comment on the realignment of the stair must take account of the context, which is the Application as a whole. The Application comprised erection of an extension, with raised timber deck and a new outbuilding on the deck. The stair to the deck was only a part of the Application as a whole. However, in my judgment the position and orientation of the new stair is capable of having an important effect on the privacy of no. 6.”

The permission was quashed on that final ground. Lesson: local planning authorities (and applicants) should be careful to ensure that plans are accurate and comprehensible and that revisions which may have a material effect on potential objectors are adequately publicised.

Lidl Great Britain Limited v East Lindsey District Council & Aldi Stores Limited (Deputy High Court Judge Dan Kolinsky KC, 2 July 2024) – when should applications for planning permission for competing developments be considered at the same planning committee?

For the detail please see my colleague Sophie Bell’s Town Library summary but, very briefly, the case concerned competing planning applications for supermarkets in Horncastle. There would be a significant adverse impact on the town centre if both developments were to proceed. Lidl’s and Aldi’s applications were both due to go to the same committee meeting but there was a hold-up with Aldi’s application and so only Lidl’s application was taken to the committee, where it was approved. The judge held that the council was required to consider the competing merits of the two schemes but failed to do so properly by considering the applications separately: “the need for a comparison was “so obviously material” as to ” require direct consideration“.

This was certainly “store wars” nostalgia for some of us! It is a useful case to help guide what should be done where applications for competing developments have been submitted, although the judge does warn that his “decision is not based on accepting [the] proposition that there is a special category of cases which applies to rivals. I consider that this contention underplays the importance of the particular facts of the case. To make generalisations about categories of cases risks oversimplification. It fails to heed the warnings that there is no “one size fits all” approach (per Sullivan LJ in R (Langley Park School) v Bromley LBC [2010] 1 P&CR 10 at para 52) and that categorisation can be “dangerous” (per Oliver LJ in GLC)… the specific evidential circumstances of this case is one in which there are two proposals before the authority aiming to address what on the evidence has been found to be finite retail capacity (without causing significant adverse impact on the town centre). Those are the uncontentious facts which mean that in the specific circumstances of this case a comparison was necessary (and was not undertaken). Moreover, as I have found, the reason for declining to undertake it reveals a logical gap in the Defendant’s decision making.”

There, I hope you’re suitably refreshed. I’m sure something more substantial will be served up before too long.

Simon Ricketts, 13 July 2024

Personal views, et cetera

Courtesy Sebastian Coman Photography via Unsplash

Not Bad For A First Day At Work

That Rachel Reeves speech today (8 July 2024) is here in full. The key passages in relation to planning reform:

“Nowhere is decisive reform needed more urgently than in the case of our planning system.

Planning reform has become a byword for political timidity in the face of vested interests and a graveyard of economic ambition.

Our antiquated planning system leaves too many important projects getting tied up in years and years of red tape before shovels ever get into the ground.

We promised to put planning reform at the centre of our political argument – and we did.

We said we would grasp the nettle of planning reform – and we are doing so.

Today I can tell you that work is underway.

Over the weekend, I met with the Prime Minister and the Deputy Prime Minister to agree the urgent action needed to fix our planning system.

Today, alongside the Deputy Prime Minister, I am taking immediate action to deliver this [political content removed] government’s mission to kickstart economic growth;

And to take the urgent steps necessary to build the infrastructure that we need, including one and a half million homes over the next five years.

The system needs a new signal. This is that signal.

First, we will reform the National Planning Policy Framework, consulting on a new growth-focused approach to the planning system before the end of the month, including restoring mandatory housing targets.

And, as of today, we are ending the absurd ban on new onshore wind in England. We will also go further and consult on bringing onshore wind back into the Nationally Significant Infrastructure Projects regime, meaning decisions on large developments will be taken nationally not locally.

Second, we will give priority to energy projects in the system to ensure they make swift progress…

… and we will build on the spatial plan for Energy by expanding this to other infrastructure sectors. 

Third, we will create a new taskforce to accelerate stalled housing sites in our country…

…beginning with Liverpool Central Docks, Worcester Parkway, Northstowe and Langley Sutton Coldfield, representing more than 14,000 homes.

Fourth, we will also support local authorities with 300 additional planning officers across the country.

Fifth, if we are to put growth at the centre of our planning system, that means changes not only to the system itself, but to the way that ministers use our powers for direct intervention.

The Deputy Prime Minister has said that when she intervenes in the economic planning system, the benefit of development will be a central consideration and that she will not hesitate to review an application where the potential gain for the regional and national economies warrant it.

… and I welcome her decision to recover two planning appeals already, for data centres in Buckinghamshire and in Hertfordshire.

To facilitate this new approach, the Deputy Prime Minister will also write to local mayors and the Office for Investment to ensure that any investment opportunity with important planning considerations that comes across their desks is brought to her attention and also to mine.

The Deputy Prime Minister will also write to Local Planning Authorities alongside the National Planning Policy Framework consultation, making clear what will now be expected of them…

…including universal coverage of local plans, and reviews of greenbelt boundaries. These will prioritise Brownfield and grey belt land for development to meet housing targets where needed.

And our golden rules will make sure the development this frees up will allow us to deliver thousands of the affordable homes too, including more for social rent.

Sixth, as well as unlocking new housing, we will also reform the planning system to deliver the infrastructure that our country needs.

Together, [political content removed] we will ask the Secretaries of State for Transport and Energy Security and Net Zero to prioritise decisions on infrastructure projects that have been sitting unresolved for far too long.

And finally, we will set out new policy intentions for critical infrastructure in the coming months, ahead of updating relevant National Policy Statements within the year.

I know that there will be opposition to this.

I’m not naïve to that;

And we must acknowledge that trade offs always exist: any development may have environmental consequences, place pressure on services, and rouse voices of local opposition.

But we will not succumb to a status quo which responds to the existence of trade-offs by always saying no, and relegates the national interest below other priorities.”

That reference to “ending the absurd ban on new onshore wind in England” has been given effect by a DLUHC policy statement on onshore wind (8 July 2024), removing – with immediate effect – the additional tests that have applied to on-shore wind as opposed to other energy proposals, namely that the proposal has policy and community support.

Simon Ricketts, 8 July 2024

Personal views, et cetera

Courtesy Nik via Unsplash