Month: July 2025

“Government to overhaul planning and licensing rules to make it quicker and easier for new cafes, bars and music venues to open in place of disused shops”

This was the government press release from Saturday (26 July).

“Government to overhaul planning and licensing rules to make it quicker and easier for new cafes, bars and music venues to open in place of disused shops.

New ‘hospitality zones’ will fast-track permissions for alfresco dining, pubs, bars and street parties.

Reforms will also protect long-standing venues from noise complaints by new developments.”

“The reforms will make it easier to convert disused shops into hospitality venues, and protect long-standing pubs, clubs, and music venues from noise complaints by new developments – ensuring the buzz of the high street can thrive without being silenced.

As part of this, the Government will introduce the ‘Agent of Change’ principle into national planning and licensing policy – meaning developers will be responsible for soundproofing their buildings if they choose to build near existing pubs, clubs or music venues.

New dedicated ‘hospitality zones’, will also be introduced where permissions for alfresco dining, street parties and extended opening hours will be fast-tracked – helping to bring vibrancy and footfall back to the high street.

The new National Licensing Policy Framework will streamline and standardise the process for securing planning permission and licences, removing the patchwork of local rules that currently delay or deter small businesses from opening. This means that entrepreneurs looking to turn empty shops into cafes, bars or music venues will face fewer forms, faster decisions, and lower costs.

This transformation is already underway through the High Street Rental Auction Scheme, which gives councils the power to auction off leases for commercial properties that have been vacant for over a year—bringing empty shops back into use and turning them into vibrant community hubs where people can enjoy a meal, drink, or night out.”

We wait to see what all this means in practice for our planning and licensing systems. The agent of change is after all already in the NPPF. Paragraph 200:

“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.”

Perhaps there will be a super-charged National Development Management Policy version? Anecdotally, I am still being approached by music venues finding that permissions have been granted for adjoining development without adequate noise mitigation conditions having been applied (most recently a London borough being prepared to consent to judgment in just such a situation). And is the government right to be removing the Theatres Trust as a statutory consultee on relevant planning applications, which is an important check against these sorts of problems arising in relation to some types of venue at least?

For more see my 11 May 2024 blog post Grassroots Music Venues Report/Agent Of Change which in turn references earlier posts.

Now shush, I need to work.

Simon Ricketts, 28 July 2025

Personal views, et cetera

A PPG Change Could Easily Mop Up This Surface Water Flood Risk Sequential Test Mess

It’s finally raining properly this morning. What else could I write about…?

The government’s general advice is that planning permission shouldn’t be granted for development in flood risk areas without an assessment first being carried out as to whether the development could be accommodated in a lower risk area. Fair enough, but a change to the government’s planning practice guidance in 2022 for the first time expressly extended this advice to “areas at risk of surface water flooding“, rather than just areas at risk of flooding from rivers or the sea.

Paul Smith wrote a brilliant explainer on this issue from a developer’s perspective in his 4 April 2025 blog post How puddles could stop the government building the homes we need.

The December 2024 version of the NPPF didn’t resolve the problem but at least alleviated it with the emboldened passage:

“170. Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk (whether existing or future). Where development is necessary in such areas, the development should be made safe for its lifetime without increasing flood risk elsewhere.”

“172. All plans should apply a sequential, risk-based approach to the location of development – taking into account all sources of flood risk and the current and future impacts of climate change – so as to avoid, where possible, flood risk to people and property. […]

“173. A sequential risk-based approach should also be taken to individual applications in areas known to be at risk now or in future from any form of flooding, by following the steps set out below.

174. Within this context the aim of the sequential test is to steer new development to areas with the lowest risk of flooding from any source. Development should not be allocated or permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding. The strategic flood risk assessment will provide the basis for applying this test.

175. The sequential test should be used in areas known to be at risk now or in the future from any form of flooding, except in situations where a site-specific flood risk assessment demonstrates that no built development within the site boundary, including access or escape routes, land raising or other potentially vulnerable elements, would be located on an area that would be at risk of flooding from any source, now and in the future (having regard to potential changes in flood risk).”

The problem is that we are still currently left with the specific reference in the PPG to the need for a sequential test in relation to areas at risk of surface water flooding (the passage I have emboldened) (and Mead Realisations v Secretary of State (Court of Appeal, 30 January 2025) of course tells us that there is no “legal principle that prevents national policy in the NPPF being amended, or altered, by guidance in the PPG.”):

“What is the aim of the sequential approach?

The approach is designed to ensure that areas at little or no risk of flooding from any source are developed in preference to areas at higher risk. This means avoiding, so far as possible, development in current and future medium and high flood risk areas considering all sources of flooding including areas at risk of surface water flooding. Avoiding flood risk through the sequential test is the most effective way of addressing flood risk because it places the least reliance on measures like flood defences, flood warnings and property level resilience features. Even where a flood risk assessment shows the development can be made safe throughout its lifetime without increasing risk elsewhere, the sequential test still needs to be satisfied. Application of the sequential approach in the plan-making and decision-making process will help to ensure that development is steered to the lowest risk areas, where it is compatible with sustainable development objectives to do so, and developers do not waste resources promoting proposals which would fail to satisfy the test. Other forms of flooding need to be treated consistently with river and tidal flooding in mapping probability and assessing vulnerability, so that the sequential approach can be applied across all areas of flood risk.

Paragraph: 023 Reference ID: 7-023-20220825

Revision date: 25 08 2022”

The Government had indicated in its 12 December 2024 response to the revised NPPF consultation process that it would “shortly be updating planning practice guidance to clarify the definition of reasonably available sites that should be considered as part of the sequential test”. We still wait for that updated guidance and in particular to see if it will address this particular difficulty over surface water flood risk. Paul’s blog post explains well the nonsense of, and work and cost involved in, carrying out a sequential test looking for sites at lower risk of surface water flooding.

Pending any amended guidance, there have at least recently been some pragmatic appeal decisions by inspectors, most recently:

Ham Road, Faversham, Kent (27 June 2025) This is summarised by Zack Simons KC in his 4 July 2025 blog post Floods, puddles and “strong” refusals (which also references two other recent decisions: Yatton (albeit that this is subject to legal challenge) and HMP Garth and Wymott, Lancashire. The Faversham inspector was faced with an appeal where no sequential test had been carried out despite the site being at risk of both flooding from the sea and by way of surface water. “The proposal includes changing the land levels, including raising them in some areas, with the result that all areas of proposed built development would be some 300mm above the design flood level, ie would not be at risk of flooding. This could be secured by conditions(s).”  

“The extent of pluvial flooding risk is relatively limited. It is from ponding on the site in existing depressions and similar factors. The depth of the flooding would be relatively shallow. There is no risk related to interrupting an off-site surface water flow path, or effects on other off-site properties. It is a fairly typical existing situation on an agricultural field. As part of the design detail for the proposal at reserved matters stages, the precise land levels, drainage solutions, and landscaping would all need to be considered. Given the limited nature of the existing and future surface water flood risk, designing out the flood risk could be comfortably accommodated as part of this natural detailed design process.

Overall, therefore, there is no real world harm from either the failure to undertake a sequential test for tidal flooding or the failure to properly undertake a sequential approach. This is because it has been satisfactorily demonstrated that mitigation measures can make the proposed development safe for its lifetime from tidal flooding. There are also reasons other than flooding that result, although likely only in part, in the land levels changing mitigation measures. There would also be no real world surface water flood risk to the finished and occupied development proposal.”

Nor was the failure to carry out the sequential test a “strong reason for refusal” such as to disapply the tilted balance in favour of granting permission (which applied due to the local authority’s poor housing land supply position).

Appeal allowed.

Sherwood Cross, Feniton (11 July 2025). Here, the site is “conducive to overland water flow in high rainfall events”. Water attenuation is proposed to the north of the site to protect the development site but also to provide overall betterment, the details of the proposed attenuation scheme to be the subject of a Grampian condition.

“The Sequential Test undertaken by the Appellant has not considered potential housing sites in the wider local authority area, as identified by the Council. That is on the basis of the Appellant’s claimed position that the proposal would uniquely include flood alleviation measures that would significantly lessen the flood risk off- site within that part of Feniton to the south of the site along Colestocks Road and further to the south, and that there are no other sites that could provide such benefits to Feniton. However, whilst the flood mitigation measures are an element of the proposal, as previously referred to, the northern attenuation areas have a dual function including to protect the proposed development from any flood risk.

The proposal is therefore fundamentally a housing scheme with attenuation measures necessary, in the absence of any other proposed mitigation, to protect it from flood risk, which would also take the opportunity to provide betterment to off- site flood risk. There is no substantive evidence to indicate that the various other potential sites for housing put forward by the Council would be unsuitable or not have a lower risk of flooding. As such, I have no substantive basis to find that there are no reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding. The proposed development therefore fails the sequential test, in conflict with the Framework in this respect.”

However, the inspector goes on to conclude:

“I have also found that, in respect of flood risk, the proposal fails the sequential test and does not fully accord with policy EN22 of the Local Plan and F1 of the NP, having regard also to the absence of an agreed surface water outfall. However, I have also found that there would be likely betterment relating to off-site flood risk resulting from the proposals, in the context of the proposals making the development safe without increasing flood risk elsewhere. That would be subject to compliance with a Grampian condition to secure acceptable surface waterdrainage, which I have found would be appropriate in the circumstances of this case. Those factors therefore lessen the weight afforded to the above failures relating to the sequential test and development plan policy.”

Appeal allowed.

This pragmatism is all well and good but to assume pragmatism on the part of all decision-makers in the planning system is a mug’s game. Which is why we just need some clear guidance: of course if there is no certainty that any unacceptable risks arising cannot robustly be mitigated, surface water flood risk can and should be the basis for refusal of a planning application, but the sequential test should only be required in the case of sites at risk from flooding from rivers or the sea.

Oh and it’s still raining. Good.

Simon Ricketts, 19 July 2025

Personal views, et cetera

A Bluffer’s Guide To The English Devolution And Community Empowerment Bill

This weekend you will be worried that someone in the pub is going to say “hey, you’re a planner! … what’s the difference between a mayoral strategic authority, non-mayoral foundation strategic authority and single local authority foundation strategic authority; and between a CCA and a CA; and between the community right to bid and the community right to buy?”

You definitely need to be prepared and, rather than staying at home instead, there are probably three main options:

  1. You could read the 338 page Bill that was introduced into the House of Commons on 10 July 2025, perhaps alongside the 156 pages of explanatory notes and 237 pages of impact assessment.
  1. You could channel your inner Angela Rayner, by way of MHCLG’s 10 July 2025 press release or, for a deeper dive, a guidance document published by MHCLG, which serves to put the proposals within the Bill within a wider reform context.
  1. You could (and have indeed already started to) read this bluffer’s guide (this bluffer being me).

Confession: I have only scrolled through the material once so far just identifying what seemed to be most immediately relevant. There will be much that I have missed.

Much of the Bill serves to give effect to proposals within the English Devolution White Paper (16 December 2024) which I commented on from a planning perspective in my 18 January 2025 blog post Viva La Devolution although there is much more besides.

Anyway, here is some stuff that may be useful:

The Bill is really about four main things (quoting from MHCLG’s guidance document):

  • “Devolution: describing devolution structures, outlining and expanding powers for Mayors and authorities through the new Devolution Framework and explaining routes to devolution for places that don’t have it.”
  • Local government: ensuring the process for local government reorganisation supports the ambition in the White Paper, outlining changes to local authority governance, reforming accountability and introducing effective neighbourhood governance structures to amplify local voices.
  • Communities: giving more power to local communities to purchase assets of community value and …”
  • (the guidance document includes this under the “communities” heading but it is of wider relevance than that) abolishing upwards only rent review provisions in commercial leases.

Devolution

Devolution deals have to date been arrived at in ad hoc fashion. The Bill allows the government to roll out a standardised devolution framework. I summarised the different types of strategic authority in my January 2025 blog post, but MHCLH have now published this series of five “Devolution Framework Explainers” , on:

  • Established mayoral strategic authorities
  • Mayoral strategic authorities
  • Non-mayoral foundation strategic authorities
  • Single local authority foundation strategic authorities

In relation to roads, strategic authorities will be required to set up and coordinate a “key route network”, comprising the most important roads in their area, in respect of which they will have various powers of direction and the power to set traffic reduction targets – and will have the role of licensing bike and e-bike hire schemes.

In relation to planning, they will have equivalent powers to those of the London Mayor; in addition to SAs’ duty to prepare a spatial development strategy, the mayors of combined authorities and combined county authorities will have the power to direct refusal of planning applications of potential strategic importance (Regulations will need to set out what the thresholds will be) or to call them in for their own determination.  They will be able to prepare mayoral development orders, establish mayoral development corporations and, if there is an adopted SDS, levy Mayoral CIL. Mayoral SAs will also need to prepare a local growth plan.

Mayors will be able to appoint and renumerate “Commissioners” to lead on particular statutory “areas of competence”.

Mayors will be elected via the supplementary vote system, rather than “first past the post” (as was the system prior to May 2024). They will be able to be the police and crime commissioner for their SA area. They will not be able to moonlight as a member of Parliament.

What is all this likely to mean for particular areas? I’m glad you asked me that! MHCLG has also now published a series of 16 “Area Factsheets”, providing “information on areas benefitting from English devolution, including electoral terms, route to established status, police and fire functions, distinctive governance arrangements and local government reorganisation”, for:

  • Cambridgeshire and Peterborough
  • Devon and Torbay
  • East Midlands
  • Greater Lincolnshire
  • Greater London Authority
  • Greater Manchester
  • Hull and East Yorkshire
  • Lancashire
  • Liverpool City Region
  • North East
  • South Yorkshire
  • Tees Valley
  • West Midlands
  • West of England
  • West Yorkshire
  • York and North Yorkshire

Local government

This includes the power for the Secretary of State to direct two-tier councils to submit proposals as to how to become a single unitary tier and in some cases to direct particular unitaries to submit a proposal to merge with each other. The cabinet system will be compulsory for local authorities and there will be no new local authority mayors.

“The Bill will empower communities to have a voice in local decision by introducing a requirement on all local authorities in England to establish effective neighbourhood governance. The requirement for local authorities to have effective neighbourhood governance will empower ward councillors to take a greater leadership role in driving forward the priorities of their communities. This will help to move decision-making closer to residents, so decisions are made by people who understand local needs. Additionally, developing neighbourhood-based approaches will provide opportunities to organise public services to meet local needs better.” (from the explanatory notes, paragraph 98).

Assets of community value

The Localism Act 2011 introduced the “community right to bid” by way of the ”assets of community value” process (for a couple of examples of litigation in relation to assets of community value, see my 14 July 2018 blog post, 2 ACV Disputes). In that blog post I summarised the rather toothless nature of the current system as follows:

“The listing of land or buildings as an asset of community value has legal consequences but ones that will seldom be determinative as to an owner’s longterm plans. Whilst disposal of a freehold or long leasehold interest can’t take place without community groups being given an opportunity to bid, there is no obligation to accept any community bid that is made. The listing can be material in relation to the determination of an application for planning permission, but the weight to be attached to the ACV listing is a matter for the decision maker.”

The Bill proposes the strengthening of the system in several ways (again quoting from MHCLG’s guidance document):

  • “The community group and asset owner will either negotiate a price for the asset, or an independent valuer will set a price based on the market value. Under Community Right to Buy, the moratorium on the sale of the asset will be extended to 12 months, giving community groups more time to raise funding to meet the agreed purchase price. Asset owners will be able to ask the local authority to check that community groups are making sufficient progress on the sale 6 months into the moratorium.

The definition of an ACV will also be expanded to help protect a wider range of assets, including those that support the economy of a community and those that were historically of importance to the community. Community groups will be able to appeal the local authority’s decision on whether an asset is of community value and local authorities will be supported to deliver the powers with new guidance.”

(This will raise significant concerns with land owners I feel sure).

  • Although sports grounds can already fall within the ACV definition the Bill will introduce “a new type of ACV – the Sporting Asset of Community Value (SACV) and automatically designate all eligible sports grounds as such. As with the standard ACV regime, communities will have the first right of refusal when a ground is put up for sale. SACV status will also provide enhanced protections for sports grounds. For example, unlike the standard 5-year renewal period under the ACV system, sports grounds designated as SACV will retain this status indefinitely. Other facilities – such as car parks – that the ground depends on to function effectively – will also be eligible for SACV listing, preventing the ground from being undermined by the intentional removal of its supporting assets.”

Abolishing upwards only rent review provisions in commercial leases

This landlord and tenant law provision, well away from my wheelhouse, is a strange outlier within the Bill.  As per the MHCLG guidance:

“The Bill will ban UORR clauses in new commercial leases in England and Wales. Commercial leases include sectors such as high street businesses, offices and manufacturing. Some very limited areas such as agricultural leases will be exempt. The ban will also apply to renewal leases where the tenant has security of tenure under Part II the Landlord and Tenant Act 1954. The ban aims to make commercial leasing fairer for tenants, ensure high street rents are set more efficiently, and stimulate economic growth.

Following the ban, if a UORR clause is in a new or renewal commercial lease, the requirement for rent not to decrease will be unenforceable; the new rent will be determined by whatever methodology is specified in the lease, for example in line with changes to the retail price index. The new rent may be higher, lower or the same as the previous rent.”

Enjoy your drink. Enough of all these acronyms, it’s an IPA for me please, thank you.

Simon Ricketts, 11 July 2025

Personal views, et cetera