Month: September 2024

Brownfield Passports…To What? When? How?

At 9.30 am last Sunday out popped an MHCLG policy paper Brownfield Passport: Making the Most of Urban Land  and an accompanying press statement New ‘brownfield passports’ to seize the growth opportunities of urban areas (22 September 2024).

The timing was interesting:

  • Obviously, synchronised with the Labour party conference in Liverpool last weekend – Sir Keir Starmer’s speech there promised: “‘we are introducing new planning passports that will turbo-charge housebuilding in our inner cities.” In more general terms Rachel Reeves there: “What you will see in your town, your city, is a sight that we have not seen often enough in our country – shovels in the ground, cranes in the sky, the sounds and the sights of the future arriving. We will make that a reality.”
  • Coincidentally, synchronised with a presentation starting, also starting at 9.30 am last Sunday, by the first of that day’s Oxford Joint Planning Law Conference speakers, Ant Breach of Centre for Cities: “BOLDER: A Zoning System for England”. In some ways, the idea of passporting particular types of development is nothing if not zoning.

“We have been clear that development must look to brownfield first, prioritising the development of previously used land wherever possible. To support this, we will make the targeted changes set out below, including making clear that the default answer to brownfield development should be “yes”, as the first step on the way to delivering brownfield passports.”

If the work had been done in time, it would obviously have made more sense for the proposals in the latest working paper to have been part of the July 2024 consultation, both so that those responding had a better understanding of the intended policy end-point and so that the changes could be introduced at the same time that the revised NPPF itself is published (still, we hope, before the end of this year – maybe keep 20 or 23 December free of meetings folks…).

We are where we are. What do we learn from this latest policy paper? I hesitate to be hyper-critical as we all know that a new government is moving at pace, that these issues are difficult and that the objective is to be applauded (in my view at least) but…

It is a bit of a “throw ideas at the wall and see what sticks” piece of work isn’t it? “Brownfield passport” is nice branding, up there with “grey belt”, but what rights would this “passport” actually bring?

Its purpose is to be “more specific about the development that should be regarded as acceptable, with the default answer to suitable proposals being a straightforward “yes”.”

This needs to be viewed against the changes to the NPPF that are already proposed that would reinforce the presumption in favour of granting planning permission for development proposals on brownfield land. Paragraph 122 of the draft revised NPPF states that planning policies and decisions should, amongst other things: “give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be regarded as acceptable in principle, and support appropriate opportunities to remediate despoiled, degraded, derelict, contaminated or unstable land” (the underlined text is what is proposed to be inserted into what is already within the current NPPF at paragraph 123 (c)).

So how is the “brownfield passport” concept intended to move the dial still further in favour of brownfield development?

Well first of all, it’s not the equivalent of planning permission: “while we are not considering the granting of automatic planning permission on suitable brownfield sites or removing appropriate local oversight of the development control process, we do want to explore ways in which providing more explicit expectations for development could lower the risk, cost, and uncertainty associated with securing planning permissions on brownfield land.”

Instead:

“In order to maximise clarity and certainty about the opportunities to make best use of urban land, we think there is scope to make further policy changes, at both a national and local level, relating to the principle, scale, and form of development in different types of location.

We see these potential changes as a form of ‘brownfield passport’: setting clear parameters which, if met, serve as accepted markers of suitability, with approval becoming the default and a swifter outcome.”

Hmm.

MHLG floats a number of options:

  • First, tightening the NPPF further, by “being explicit that development on brownfield land within urban settlements is acceptable unless specified exclusions apply. Those exclusions could, for example, include that there is no adverse impact in relation to flood risk and access that cannot be mitigated.”
  • Secondly, by using the proposed National Development Management Policies system “to set minimum expectations for certain types of location where a particular scale of development may be appropriate.

Policy could, for example, say that development should be of at least four storeys fronting principal streets in settlements which have a high level of accessibility, and/or set acceptable density ranges that allow for suitable forms of intensification. A similar approach has been used successfully in some other countries where efforts have been made to densify urban areas through ‘upzoning’. While it would still require approval from the local planning authority, it would establish a very strong starting position which would carry significant weight in making decisions and create an expectation that compliant schemes are approved.

The policy parameters, such as height and what conferred a high degree of accessibility, would need to be set carefully, both to make the most of suitable opportunities and to avoid inappropriate development.”

It would surely be difficult to do this on a blanket, national, basis. MHCLG recognises this, so a less exciting variant is that “policy could be amended to encourage such parameters to be set through local development plans, which could also be articulated through design codes for appropriate locations – whether across whole urban areas or at a more local scale.”

  • Thirdly, “the potential to use design guides and codes that draw on the existing character of places, to identify these opportunities and provide clarity on the types of development that are regarded as acceptable in particular locations.”
  • Fourthly, for local planning authorities to make local development orders “in order to provide upfront consent to developments that meet the specified criteria…Combining them with criteria on the scale and/or form of development as suggested above would allow a local planning authority to effectively establish one or more zones in which particular types of development had planning permission without the need for individual applications.”
  • Fifthly, whether any of these proposals “could be supported by linking them to the national scheme of delegation, which [the government has] committed to provide for through the Planning and Infrastructure Bill.” Now there’s an idea!

The paper ends with this paragraph:

“As part of wider action to support the development of small sites, we will also consider whether any of these proposals could apply to non-brownfield land in urban areas, with suitable safeguards to retain land which should be kept open or has important environmental benefits.”

So, having established that we are not really talking about “passports” – rather, various ways in which the planning system might further assist in the promotion for development of particular categories of schemes,  and we aren’t really just talking about “brownfield” either.

There will in due course be a call for evidence.

“Brownfield land“ in planning-speak is “previously developed land”, or PDL. I’m beginning to wonder whether there should be another specific terms that we might all find helpful: Previously Developed Policy Interventions, or PDPI. Nicola Gooch wrote a great blog post last Sunday, Brownfield Passports: building on old foundations? reflecting some of the PDPIs which have sought in recent years to encourage brownfield development and the promote the ‘gentle densification’ of urban areas, e.g.:

  • Street votes
  • Permissions in principle
  • Zoning (as per the 2020 white paper)

To this I would add the various waves of changes to the General Permitted Development Order including Part 20 of Schedule 2  – construction of new dwellinghouses. Or indeed, what about this for déjà vu, the previous government’s 13 February 2024 consultation paper Strengthening planning policy for brownfield development (13 February 2024)?

Someone quipped to me this week that a brownfield passport is all well and good but that the big question will be how easy it will be to get the visa that allows us actually to get anywhere. Mind you that wording on the inside cover of your passport does always sound good:

“His Britannic Majesty’s Secretary of State Requests and requires in the Name of His Majesty all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford the bearer such assistance and protection as may be necessary.”

Let’s not lose sight of that as the objective!

Simon Ricketts, 28 September 2024

Personal views, et cetera

Street Robbery?

There was a surprising announcement on Tuesday by the Mayor of London, “supported by the new Government”, that he is to create a Mayoral Development Corporation to “transform Oxford Street, including turning the road into a traffic-free pedestrianised avenue” so that it can “once again become the leading retail destination in the world” (see Mayor of London and government announce bold plans to transform Oxford Street (17 September 2024).

We all know that there was a longstanding disagreement between the Mayor and the previous Conservative administration of Westminster City Council as to whether the street should be pedestrianised, his 2016 pedestrianisation scheme having been scuppered by opposition by WCC, as highway authority and therefore the relevant body to implement the proposals, in June 2018. But Labour took control of WCC  in May 2022 and I’m left scratching my head as to what lies behind his announcement and its timing.

WCC’s Statement on Oxford Street  (17 September 2024) reveals that the council was only informed the previous Thursday that this was on the cards. The plan would serve to frustrate the council’s own plans to redesign and improve the street.

Not only that, the council had a by-election two days after the announcement and lost one of its West End seats to the Conservatives (see Labour loses central London by-election to Tories amid row over Sadiq Khan’s Oxford Street pedestrianisation (Standard, 20 September 2024)). Was the result affected by the announcement? Well it can’t have helped, given how locally unpopular the prospect of pedestrianisation has been, with residents concerned about buses and taxis being displaced to other streets.

The Mayor’s announcement contains no information as to what the boundaries would be of the proposed Mayoral Development Corporation. I’m assuming that the main reason for designating the Corporation would be to give it the necessary planning and highways powers to deliver not just the pedestrianisation but any necessary works on surrounding streets – and is the Mayor looking to include the surrounding buildings within its area? There is no information in the public domain.

The procedure for establishing Mayoral Development Corporations is set out in sections 196 to 200 of the Localism Act 2011. The Mayor will need first to consult a number of bodies, including of course WCC, before placing it before the London Assembly, undertaking public consultation and then notifying the Secretary of State.

What funding will be made available by the Government? Again, nothing is in the public domain.

All in all this seems to me a very odd use of the Mayor’s powers to achieve a scheme which surely could have been driven through with WCC’s Labour administration with appropriate sticks and carrots. Or is the announcement itself just the waving of a big stick? Time will tell…

Simon Ricketts, 21 September 2024

Personal views, et cetera

image of Mayor’s 2016 scheme courtesy of Mayor of London

When Would Local Plan Policies Be “Out Of Date” For The Purposes Of Para 11(d) Of The Draft Revised NPPF?

This is an important question, given that the consequence is that what is called in the jargon the “tilted balance” applies, namely that planning permission should be granted for any development proposal unless:

  • The application of policies in the NPPF “that protect areas or assets of particular importance provides a clear reason for refusing the development proposed” – those areas and assets being habitats sites, SSSIs, green belt, local green space, AONBs (now “national landscapes”), national parks, Heritage Coast, irreplaceable habitats, designated heritage assets (and some other heritage assets of archaeological value) and areas at risk of flooding or coastal change; or
  • “Any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in [the NPPF] taken as a whole, in particular those for the location and design of development … and for securing affordable homes”; or
  • The proposal would conflict with a neighbourhood plan which is no more than five years old and contains policies and allocations to meet its identified housing requirement.

The new Government is of course not just consulting on the draft revised NPPF but on a revised “standard method” for determining local housing need (see chapter 4 of its consultation document) and that standard method would significantly increase the local housing plan figure for most authorities. The effect for each authority is shown on this MHCLG spreadsheet or visually on Lichfields’ interactive map.

Maybe it’s just me but I found it quite difficult to get straight in my mind when an authority’s failure to demonstrate a five year supply of housing land to meet the new local housing need figure would mean that its local plan is to be treated as “out of date” such that the tilted balance applies. Here’s my thinking and it perhaps points to some areas where the draft revised NPPF needs to be tightened or at least made clearer.

Paragraph references in what follows are to the draft revised document.

  • The reference in paragraph 11 (d) is to “where “the policies for the supply of land are out of date”
  • Footnote 9 explains that:

“This includes, for applications involving the provision of housing, situations where: (a) the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, if applicable, as set out in paragraph 76); or (b) where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years.”

  • Paragraph 76 states:

“Strategic policies should include a trajectory illustrating the expected rate of housing delivery over the plan period, and all plans should consider whether it is appropriate to set out the anticipated rate of development for specific sites. Local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies, or against their local housing need where the strategic policies are more than five years old. The supply of specific deliverable sites should in addition include a buffer (moved forward from later in the plan period) of:

  1. 5% to ensure choice and competition in the market for land; or
  1. 20% where there has been significant under delivery of housing over the previous three years, to improve the prospect of achieving the planned supply”
  • Paragraphs 224 and 225 state:

“224. The policies in this Framework are material considerations which should be taken into account in dealing with applications from the day of its publication. Plans may also need to be revised to reflect policy changes which this Framework has made.

225. However, existing policies should not be considered out-of-date simply because they were adopted or made prior to the publication of this Framework. Due weight should be given to them, according to their degree of consistency with this Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”

  • Accordingly, until it is five years old, an adopted local plan will not be “out of date” on the basis of applying the proposed new standard method for assessing local housing need, but rather on the basis of whether it can demonstrate a five year supply of deliverable housing sites (calculated by reference to the housing requirement set out in strategic policies in the plan), with the appropriate buffer set out in paragraph 76 and has delivered at least 75% of its housing requirement over the last three years. Once the plan is five years old, the tilted balance will apply if there is not at least a five year supply of deliverable housing sites as against their new standard method local housing need figure (and delivery of 75% of its housing requirement over the last three years).
  • This applies to plans submitted for examination or adopted no later than one month after publication of the final version of the draft revised NPPF (see paragraph 226). For plans not adopted by that date the following transitional arrangements apply (in summary) as per paragraphs 226 and 227:

Where a plan was submitted for examination within a month of publication of the revised NPPF with a local housing requirement that is more than 200 dwellings lower than the relevant local housing need (under the new standard method), once the plan is adopted, the authority will be “expected to commence plan-making in the new plan-making system at the earliest opportunity to address the shortfall in housing need”. [There is no reference in the draft revised NPPF as to how long the authority has to conclude that process before its plan will be treated other than set out in my emboldened paragraph above. Surely this needs to be clarified, because otherwise it is a recipe for confusion at best and gaming of the system at worst].

Where a local plan has reached regulation 19 pre-submission stage with an emerging annual housing requirement that is more than 200 dwellings lower than the relevant local housing need (under the new standard method), the plan should proceed to examination within 18 months of publication of the revised NPPF. [There is no express indication of what the consequences are if this deadline is missed; presumably the need to plan as against the relevant local housing need (under the new standard method) – again, shouldn’t this be clarified?].

Hence presumably why we are seeing some authorities speed up with their emerging plans, with an eye on baking in housing targets based on the current standard method, although of course that is only going to work if their plans do not require significant further work during the examination process to make them sound (see the planning minister’s 30 July 2024 letter to the Planning Inspectorate).

I will try to make next weekend’s post (if there is one: I just remembered it’s the Oxford Joint Planning Law Conference – may see you there) more exciting, sorry.

Simon Ricketts, 14 September 2024

Personal views, et cetera

Oldest example of tilted balance: photo by Manish Tulaskar courtesy of Unsplash

Grenfell Tower Inquiry Report Phase 2: What Implications For The Planning System?

The inquiry’s recommendations are within volume 7, part 14, chapter 113, pages 231 to 249 of its phase 2 report published on 4 September 2024, following publication of its phase 1 report in 2019. After 1,500 or so pages, the recommendations are expressed concisely, with precision and urgency.

The question for this phase of the inquiry to answer was specific:

“In Phase 2 we have set out to answer the question that has been at the forefront of many people’s minds: how was it possible in 21st century London for a reinforced concrete building, itself structurally impervious to fire, to be turned into a death trap that would enable fire to sweep through it in an uncontrollable way in a matter of a few hours despite what were thought to be effective regulations designed to prevent just such an event?”

The conclusions of the report lay bare the tangle of causes:

There is no simple answer to that question, but in this report we identify the many failings of a wide range of institutions, entities and individuals over many years that together brought about that situation.”

These pieces in Inside Housing, ‘Complacent’ government ‘well aware’ of cladding risks before Grenfell fire but ‘failed to act’ and What the Grenfell Tower Inquiry report said about the key players in the disaster draw together those conclusions.

With some humility given the seriousness of the topic and its breadth, I thought that I should at least try to identify some potential consequences for the planning system. This follows two earlier blog posts, Tall Buildings & Fire Safety (7 January 2023) and Safety & Planning (3 July 2021). Themes of those posts included the extent to which human safety, and the safe construction of buildings, are a matter for the planning system rather than Building Regulations and the problems arising where policies are continually in a state of flux, when there is uncertainty as to where the controls lie – via the planning system or via separate legislation – and when there is the possibility of inconsistency as between the differing regimes.

Partly as a response to phase 1 of the inquiry’s work, the previous Government made the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021, which introduced a requirement for a fire statement to be submitted with applications for planning permission for development involving a building (1) contains two or more dwellings or educational accommodation and (2) contains 7 or more storeys or is 18 metres or more in height. This “Planning Gateway One” fire statement is published on the planning register and the Health and Safety Executive must consulted before the grant of planning permission involving a high-rise residential building in certain circumstances.

The Planning Practice Guidance explains:

“The changes are intended to help ensure that applicants and decision-makers consider planning issues relevant to fire safety, bringing forward thinking on fire safety matters as they relate to land use planning to the earliest possible stage in the development process and result in better schemes which fully integrate thinking on fire safety.”

Against that context, let’s look at some of the phase 2 report recommendations most relevant to the Town and Country Planning Act system. On a narrow reading, the recommendations focus on the need for improvements to the separate Building Regulations/”building control” system, rather than the planning system (although note my comments later):

  • The Building Regulations system as at the time of the disaster was “seriously deficient” – poorly worded, lack of active monitoring of their performance by Government.
  • The arrangements under which the construction industry are regulated have become too complex and fragmented, as between different government departments, but also: “Building control was partly in the hands of local authorities and partly in the hands of approved inspectors operating as commercial organisations, enforcement of the law relating to the sale of construction products was carried out by Trading Standards and commercial organisations provided testing and certification services to manufacturers of products. UKAS accredited organisations operating as conformity assessment bodies. In our view, this degree of fragmentation was a recipe for inefficiency and an obstacle to effective regulation.”

“In our view all the functions to which we have referred, as well as some others to which we refer below, should be exercised by a single independent body headed by a person whom, for the sake of convenience, we shall call a construction regulator, reporting to a single Secretary of State.”

“We are aware that in the period since the Grenfell Tower fire Parliament has passed the Building Safety Act 2022 to regulate work on higher-risk buildings, to impose particular duties on those involved in the construction and refurbishment of such buildings and to establish a Building Safety Regulator responsible for building control and for overseeing standards of competence. However, responsibility for the range of functions identified above remains dispersed. We therefore recommend that the government draw together under a single regulator all the functions relating to the construction industry to which we have referred.”

  • “For the purpose of this and our other recommendations we have used the expression “higher-risk building” in the sense in which it is used in the Building Safety Act, that is, a building that is at least 18 metres in height (or has at least seven storeys) and contains at least two residential units. However, we do not think that to define a building as “higher-risk” by reference only to its height is satisfactory, being essentially arbitrary in nature. More relevant is the nature of its use and, in particular, the likely presence of vulnerable people, for whom evacuation in the event of a fire or other emergency would be likely to present difficulty. We therefore recommend that the definition of a higher-risk building for the purposes of the Building Safety Act be reviewed urgently.” [my emboldening]
  • “We think that a fresh approach needs to be taken to reviewing and revising the Building Regulations and statutory guidance that is driven primarily by considerations of safety. Fresh minds are needed. We therefore recommend that, as far as possible, membership of bodies advising on changes to the statutory guidance should include representatives of the academic community as well as those with practical experience of the industry (including fire engineers) chosen for their experience and skill and should extend beyond those who have served on similar bodies in the past.”
  • “We […] recommend that it be made a statutory requirement that a fire safety strategy produced by a registered fire engineer (see below) to be submitted with building control applications (at Gateway 2) for the construction or refurbishment of any higher-risk building and for it to be reviewed and re-submitted at the stage of completion (Gateway 3). Such a strategy must take into account the needs of vulnerable people, including the additional time they may require to leave the building or reach a place of safety within it and any additional facilities necessary to ensure their safety.”
  • “We […] recommend that the profession of fire engineer be recognised and protected by law and that an independent body be established to regulate the profession, define the standards required for membership, maintain a register of members and regulate their conduct. In order to speed up the creation of a body of professional fire engineers we also recommend that the government take urgent steps to increase the number of places on high-quality masters level courses in fire engineering accredited by the professional regulator.”
  • “We recognise that both the Architects Registration Board and the Royal Institute of British Architects have taken steps since the Grenfell Tower fire to improve the education and training of architects. We recommend that they should review the changes already made to ensure they are sufficient in the light of our findings.

We also recommend that it be made a statutory requirement that an application for building control approval in relation to the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a statement from a senior manager of the principal designer under the Building Safety Act 2022 that all reasonable steps have been taken to ensure that on completion the building as designed will be as safe as is required by the Building Regulations.”

  • “We […] recommend that a licensing scheme operated by the construction regulator be introduced for principal contractors wishing to undertake the construction or refurbishment of higher-risk buildings and that it be a legal requirement that any application for building control approval for the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a personal undertaking from a director or senior manager of the principal contractor to take all reasonable care to ensure that on completion and handover the building is as safe as is required by the Building Regulations.”
  • “One of the causes of the inappropriate relationship to which we have referred was the introduction into the system of commercial interests. Approved inspectors had a commercial interest in acquiring and retaining customers that conflicted with the performance of their role as guardians of the public interest. Competition for work between approved inspectors and local authority building control departments introduced a similar conflict of interest affecting them. As things stand that underlying conflict of interest will continue to exist and will continue to threaten the integrity of the system. We therefore recommend that the government appoint an independent panel to consider whether it is in the public interest for building control functions to be performed by those who have a commercial interest in the process.

The shortcomings we have identified in local authority building control suggest that in the interests of professionalism and consistency of service all building control functions, including those currently performed by local authorities, should be exercised nationally. Accordingly, we recommend that the same panel consider whether all building control functions should be performed by a national authority.”

The implications for the planning system of the conclusions and recommendations of the report should not be under-estimated:

  • The Grenfell Tower tragedy had a specific factual background: the building had been constructed long ago – the issues arose through its refurbishment. Whilst building control should be the mechanism for ensuring the safety of the works carried out, the position is more complex in the case of the proposed construction in the first place of a higher-risk building. Building control is ultimately the detailed mechanism for ensuring that the development constructed can be safely occupied, but, as recognised by the Government in introducing the Planning Gateway One stage, fire safety needs to be considered at an early stage in the gestation of development proposals – it is too late for effective influence over issues such as emergency escape routes at the building control stage, there does need to be that early opportunity for safety to be built in from the outset. How are we likely to see that Planning Gateway One process change in the light of the recommendations? Clearly there will need to be some consideration as to whether 18 metres should still be the threshold. And what will the single regulator be, which responds at this stage? Will its decision-making be final or one consultation response of potentially many (albeit of significant weight)? How can we make sure that its decision-making is predictable and timely? This is also delicate to say given the potential consequences of a wrong decision, but: what if its decision-making is at times unreasonably prescriptive?
  • How will this changed approach flow through into private sector appetite to embark on multi-storey residential projects, on which any achievement of the new Government’s targeted housing numbers is predicated?
  • In circumstances where registered providers are generally reluctant to take on section 106 affordable housing (see eg The challenges for affordable housing delivery in London (Savills, 27 August 2024)), to what extent will the continuing focus on remedying existing unsafe buildings serve to increase that reluctance?
  • Are there the resources? Anecdotally there is already a lack of fire engineers to advise appropriately on projects. How much will it cost to have a properly staffed and experienced national body for building control and how to move to such as system without creating further uncertainty?

When taken with other recent or current public inquiries, such as the Infected Blood Inquiry and the Post Office Horizon IT Inquiry, aside from the frustratingly long time it takes for the wheels of justice to turn, the themes arising appear to be depressingly recurring: individual greed or complacency; business objectives that have become disconnected from the public interest; how difficult it is to stand up to “the establishment” in its varying forms; inadequate often confusing or ineffective regulatory or administrative systems; ineffective agencies, and inadequate checks and balances on ministers’ actions (and inactions).

My respect goes out not just to Sir Martin Moore-Bick, Ali Akbor OBE and Thouria Istephan for their important work in relation to the Grenfell Tower Inquiry, but to all those affected by the tragedy, many of whose testimonies form such an important part of the reports. It will all unfortunately be forever part of this country’s history. It needs also to shape the future.

Simon Ricketts, 7 September 2024

Personal views, et cetera