Month: June 2026

Wishful Thinking

“It’s time we should talk about it

There’s no secret kept in here

Forgive me for asking

Now wipe away your tears

And if I wish to stop it all

And if I wish to comfort the fall

It’s just wishful thinking”

(Wishful Thinking by China Crisis, 1983 – tune!)

MHCLG published two pieces of advice this week that might be construed as wishful (and therefore potentially misleading) thinking:

CIL

On 25 June the housing and planning minister wrote to all CIL charging authorities in England in relation to household developer exemptions:

“While the CIL Regulations provide clarity on the criteria that must be met and procedures that must be followed to secure relief or an exemption, the Government is aware of some historic cases where householders have failed to obtain an exemption due to procedural errors, which may have been inadvertent or unintentional. In some instances, despite meeting the qualifying criteria, householders may not have followed the procedures set out in the regulations, and may not have applied for or received a CIL exemption before commencing development. In others, an exemption may not have been obtained because retrospective planning permission was granted after further works had already begun on a development that had previously benefitted from an exemption or was otherwise not liable for CIL. The Government recognises that this has, in some cases, resulted in the imposition of significant CIL charges under the regulations.”

Too true! See for example my previous blog posts CIL The Merciless (19 January 2019), Trent Won, Cil Nil  (14 April 2021) and CIL: There Is No Equity About A Tax (10 July 2021).

So what is it proposing to do? First: “The Government is proposing to consult on a proposed package of targeted regulatory changes to make the operation of CIL clearer and more proportionate for householders and self-builders.“

So far so good (although if you asked me I would either entirely remove CIL liability for householder development or I would entirely remove the self-build exemption).

But, the second section of the letter is headed “historic cases” and has three strands:

  • “First, we strongly recommend all authorities to review their local CIL guidance and communication methods to ensure any household developers in their area are aware of the current exemptions and the necessary procedures to access them.” (What more or better communication does anyone suggest? Authorities do in my experience communicate the position both on their websites and via informatives on permissions – the problem is the complexity of the system itself for people without the sophisticated tax administration advice needed).
  • “Second, while charging authorities have a duty to collect CIL that is due, they continue to have a degree of discretion over the steps they take to do so and when. This includes considering what is reasonable and proportionate in any given case and the appropriate timescales for enforcement activity. It has been brought to the Government’s attention that escalated enforcement actions, including threats of forced sale or criminal proceedings, have led to serious consequences for some individuals and families. Such action, or similar, is not required by the regulations without regard to local authorities’ broader legal obligations – and the precise approach to CIL collection in any individual case will depend on the specific facts and circumstances. Exactly what enforcement steps to take, and when, to collect CIL in each case is a matter for the judgement of the authority concerned.”
  • “Third – where an authority feels this is justified – collecting authorities are able to make ex gratia payments of compensation from their general funds in exceptional CIL cases where payment has been made. Such payments would not constitute a waiver or refund of CIL, but rather a discretionary payment made from general funds, outside the CIL regime. These circumstances may arise where a charging authority considers that redress is appropriate because a householder developer would have been entitled to an exemption but, as a result of an administrative error, failed to claim it in accordance with the required procedure and now faces significant hardship as a consequence. There will be a range of considerations for local authorities in making such a decision, and in all cases, they should seek their own legal advice based on the facts and circumstances of individual cases.”

These last two suggestions in my view paint an over-optimistic picture to those who have incurred CIL liability through (often understandable) mistakes. Just look at the case law cited in the blog posts I mention, or indeed more recently R (Luck) v Bracknell Forest Borough Council (Lieven J, 14 November 2025) which reviews that previous case law:

“A number of points in respect of the CIL regime can be drawn from this caselaw:

a. CIL is akin to a tax, see Gardiner at [35];

b. The purpose of CIL is to provide funding for necessary development and to provide certainty to developers and the collecting authority as to when and how such liability arises, see s.205 PA and Heronslea at [120];

c. The statute and Regulations form a detailed statutory code which is self-contained and carefully constructed, see Gardiner at [48];

d. The imposition of CIL is not discretionary, see Shropshire at [44];

e. There is a strict procedure set out in Regulation 54B, which is obligatory, see Gardiner at [57];

f. Liability for CIL must be precisely and reliably calculated on an objective basis, see Gardiner at [63].”

“Given that the Court of Appeal have held that CIL is a form of taxation, it is relevant to consider the caselaw on the scope of HMRC’s powers to waive tax which would otherwise be liable. In R (Clamp) v HMRC [2022] 1 WLR 1067 Butcher J was considering a judicial review concerning HMRC’s powers to enter into assurances with taxpayers as to tax liability.”

Butcher J in Clamp: “HMRC cannot properly, however, make concessions that tax should not be payable, where this is done not to facilitate the overall task of tax collection, but because they consider that a tax which Parliament has clearly imposed should not as a matter of principle or policy, or by reasons of considerations of equity, be payable.”

Lieven J in Luck: “Quite apart from the detail of the Regulations, there are two overarching reasons why it would be surprising if there was a broad discretion to waive CIL. Firstly, as is set out by the High Court in Clamp, one would not normally expect a tax collecting authority to have an unfettered discretion to waive the tax that Parliament had set. That point is even stronger here than in Clamp, because the local authority under the CIL regime is not in the same position as HMRC with broad management powers and a fairly wide discretion to reach “arrangements” with the taxpayer. So, it is even less likely that the local authority would have such a broad discretion to waive liability.”

“Secondly, to construe Regulation 65(7) as a broad discretion to waive CIL seems inconsistent with the rest of the Regulations. It would be a wholly unfettered discretion, with no criteria set out, in marked contrast to Regulation 55. There is no parallel power in relation to demand notices, so if the liability notice can simply be withdrawn, the court would have to imply into the Regulations a power for the demand notice to be withdrawn or to cease to have effect. The Claimant argues that by withdrawing the liability notice the underlying liability itself ceases. However, for Regulation 65(7) to have this effect would be inconsistent with the Court of Appeal decision in Braithwaite, which held that the liability continues to exist even where the liability notice is withdrawn.”

Yes, the collecting authority does have some discretion as to the enforcement steps it will take. It also specifically has discretion as to whether to impose surcharges. But other than that it has to operate within the narrow tramlines of the legislation. For someone who has made a very expensive mistake which has caused them to lose the benefit of, say, the self-build exemption, the fact that the authority may (may, no guarantee at all) choose not to resort to prosecution or an injunction to enforce payment is of little consolation if the house is ever to be mortgaged or sold.

As for the suggestion of the authority making ex gratia payments where the householder has made the administrative error rather than the authority….really?? All that this is going to lead to is many detailed, often heart-wrenching, requests, often backed by increasingly assertive legal submissions, as to why in the particular circumstances an ex gratia payment should now be made. And it’s the hope that kills because surely the authority’s response, after spending time and resources as they “seek their own legal advice based on the facts and circumstances of individual cases” is going to be “no”?

Isn’t all this papering over the cracks rather than making proper repairs?

Air conditioning units

On the same day, 25 June 2026, MHCLG published a blog post, Air conditioning rules. It starts like this:

“There has been media coverage this week suggesting that air conditioning is banned in homes. This is incorrect.

Air conditioning can be installed in both existing and new homes.

In most cases, planning permission is not required to install it for a small home if it would not materially affect the appearance of the building from outside.

However, there is no blanket rule. People should speak with their local council to check the rules, and councils should take a common-sense approach.”

It ends like this:

“A government spokesperson said:

“Air conditioning units are not banned. They can be installed in both existing and new homes and we expect councils to take a common-sense approach to the rules around this, which are there to manage the interests of communities and the environment.”

So let’s assume I’m a member of the public and I’m thinking about installing an air conditioning unit. I assume that government spokesperson is not thinking of one of those internal units with a hose that waggles inefficiently out of the part-opened window? If it’s a split unit device with an external unit and internal unit, the external unit does not have the benefit of any permitted development rights unless it is in the form of an air source combined heating and cooling unit (for which there is a right subject to limitations and conditions in class G of Part 14). Otherwise the question is one for the local planning authority as to whether in its planning judgment a large white box on the exterior of the building materially affects its external appearance, which will always come down to various site-specific factors. Are you going to check with the authority first before you make your expensive purchase? In many locations, and in the absence of formal government advice (which that blog post is not),  I anticipate that officers would conclude that planning permission is required.

CIL and planning officers: I would welcome your respective thoughts on both of these announcements.

Simon Ricketts, 28 June 2026

Personal views, et cetera

Route 62A

It’s like Route 66 but with more roundabouts. 

My Town Legal colleague Charlie Austin recently wrote a piece in Estates Gazette, The beginning of the end for localism? (18 May 2026, behind paywall). He goes through various strands of MHCLG’s current programme, including expanded delegation of decision-making to officers (see my 13 June 2026 blog post Delegation Nation), new referral requirements to the Secretary of State and London Mayor (see my 5 April 2026 blog post Further Measures To Discourage LPA Refusals Of Large Housing Schemes…Activated) and the more prescriptive thrust of the draft revised NPPF.

To that list could be added MHCLG’s designation on 15 June 2026 pursuant to section 62A of the Town and Country Planning Act 1990, of nine local planning authorities where applications for planning permission for major development may now be made direct to the Planning Inspectorate.

The list is:

• Cherwell

• Dacorum

• Epping Forest

• Hertsmere

• Malvern Hills

• Rossendale

• South Tyneside

• Staffordshire Moorlands

• Wychavon

All of which join Lewes, which was designated back on 8 May 2024.

This week’s designation notices all have the same text:

“On 4 December 2024 the Secretary of State laid before Parliament a document setting out the criteria for designation and de-designation under section 62B of the Town and Country Planning Act 1990 (“the designation criteria”). Neither House of Parliament resolved that the designation criteria should not be approved within the 40-day period referred to in that section.

In applying the designation criteria, the Secretary of State has considered data for the two year period ending on 31 March 2025 and subsequent appeals decisions to 31 December 2025 on the quality of decision making by local planning authorities on applications for planning permission for major development. The Secretary of State, in exercise of the powers conferred by section 62A of the Town and Country Planning Act 1990, and by reference to the designation criteria mentioned above, considers that there are respects in which the local planning authority specified below is not adequately performing their function of determining applications for planning permission for major development under Part 3 of the Town and Country Planning Act 1990 and therefore, it is appropriate to make the following designation:

[ ] Council in respect of applications for planning permission for major development. Duration of designation This designation has effect from 09:00 on 15 June 2026 and shall remain in force until revoked.”

MHCLG’s designation criteria guidance is here.

For the purposes of this week’s designation: “The threshold for designation on applications for both major and non-major development, above which a local planning authority is eligible for designation, is 10 per cent of an authority’s total number of decisions on applications made during the assessment period [the 12 months up to and including the most recent quarter for which data on planning application decisions are available at the time of designation] being overturned at appeal.”

Planning magazine provided the useful table below in their designation day news piece (Pennycook places nine councils in planning performance ‘special measures’ for poor quality decision-making, 15 June 2026 (behind paywall)):

What are the implications of designation?

The applications can now be made direct to the Planning Inspectorate are those for major development, namely:

  • for housing, development where 10 or more homes will be provided, or the site has an area of 0.5 hectares or more
  • the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more; or
  • development carried out on a site having an area of 1 hectare or more.

We have a good picture both from the procedural requirements and guidance but also given previous designations (Fareham de-designated in March 2024, Chorley, St Albans and Uttlesford de-designated in June 2025 and Bristol de-designated in January 2026).

The Planning Inspectorate has procedural guidance for applicants, designated authorities and interested parties . In broad summary:

  • Applicants can secure pre-application advice from PINS at £134 per hour. PINS appoints a case officer who is then the main point of contact and requests necessary background documentation from the authority. The planning inspector reviews the pre-application submission (there is a form and a list of necessary documentation) and carries out a site visit, holds a meeting with the applicant and issues formal advice to the applicant. Pre-application community consultation by the applicant is strongly encouraged as well as “meaningful” consultation with statutory consultees.
  • The application can then be submitted (with at least ten working days’ advance notification given). The fee is the same as for submission to the local planning authority.
  • PINS carries out consultation with statutory consultees and the designated local planning authority, advertises the application in a local newspaper (how quaint), and publishes any consultation responses online.
  • The local planning authority must provide a substantive response to the consultation within 21 days, including matters it considers should be addressed by way of section 106 agreement or conditions and should “work constructively with the applicant to ensure any Section 106 agreement is completed within the required timescales”.
  • “When submitting an application to the Planning Inspectorate, applicants must ensure that it is ready for determination. A decision will be made on the application as submitted. There is no specific provision in the process for amendments or revision to the application once it has been submitted. Applicants should ensure that the relevant information is submitted with the application, as we will not accept any additional information once the application has been submitted, other than in exceptional circumstances.”
  • At the end of the consultation period, PINS will determine the procedure to be followed. “Planning applications relating to development of a significant scale, and which raise issues which cannot be clearly understood from the written submissions will require a hearing.”
  • “It is the responsibility of the applicant and the LPA to ensure that a completed agreement is in place so that it can be taken into account in reaching a decision. For applications dealt with by the written representations procedure, the completed agreement should be submitted within two weeks of the end of the representation period. Where there is a hearing the agreement should be submitted in advance of the hearing date.”
  • “The Planning Inspectorate will issue a formal decision notice incorporating a statement setting out the reasons for the decision. If the application is approved the decision will also list any conditions which are considered necessary.”
  • There is no provision to appeal the decision.
  • CIL processes work as if the decision were taken by the authority.
  • “Where planning permission has been granted under Section 62A the LPA continues to have the responsibility for monitoring the implementation of the permission, ensuring that it is carried out in accordance with the approved plans and any attached conditions. Applications for the approval of details required by condition must be submitted to the LPA. Applications for variation or removal of conditions can also be made to the LPA.”

What all this means in practice is that potential applicants have much to weigh up in deciding or not whether to make their application direct to PINS.

On the plus side, for a scheme that is straight-forward with little risk of subsequent refinements being required, there is more time certainty (and particularly in relation to negotiation and completion of any section 106 agreement), a straight-forward approach to the pre-application engagement and, if the sense is that the application may need to go to appeal anyway, it gets you before an inspector without that initial application stage.

On the minus side, many applicants may wish to maintain a constructive relationship with the particular local planning authority, and will be rightly concerned about the lack of any ability to revise applications or submit further material during the process, as well as the fact that there is just the one roll of the dice, with no subsequent right of appeal. For the local planning authority, the loss of planning application fees can of course have a significant impact.

If you would like to see some examples of applications made, timescales and the relevant documentation there are links here to all applications made in relation to Uttlesford before that authority was eventually de-designated.

Simon Ricketts, 20 June 2026

Personal views, et cetera

Delegation Nation

The new rules (for England) limiting which planning applications can be determined by local councillors come into force on 31 October 2026, a month later than previously intended.

The draft Regulations are accompanied by statutory guidance (1 June 2026) and a draft impact assessment which arrives at the following calculation:

““[Net present social value] (2025 prices, 2026 base year): £509.4 million (Low: £102.6 million and

High: £1,352.3 million)

Central direct monetised impacts (NPSV in 2025 prices, 2026 base year):

• Reduction in costs of holding capital related to determination times (to developers): £329.5 million

• Reduction in costs of holding capital related to appeals (to developers): £127.8 million

• Reduction in costs related to appeals (to developers): £46.0 million

• Reduction in costs related to appeals (to public sector): £6.1 million

• Familiarisation costs (to public sector): <£100,000”

Half a billion pounds is not to be sneezed at.

There is (of course) a comprehensive Lichfields blog setting out how the new system will work (Delegation default: power to the Chief Planner, 11 June 2026). Schedule 1 applications must always be delegated to officers. With Schedule 2 applications there is a presumption that applications will also be delegated, unless (1) unless the nominated officer and nominated member agree the application should be referred to a planning committee or sub-committee for determination and (2)  it meets at least one of the criteria in regulation 5(3), namely:

  • A: where the application raises an economic, social or environmental issue of significance to the local area; and/or
  • B: where the application raises a significant planning matter having regard to the development plan and any other material considerations.

For B, “the following circumstances are unlikely to raise a significant planning matter:

  • where the application for development broadly complies with a detailed site allocation and other relevant policies set out in a local or neighbourhood plan and national decision making policies set out in the National Planning Policy Framework. Significant planning matters may arise if new material considerations are raised by the application.
  • where a specific planning matter (e.g. highways or flood risk) was initially raised by a statutory consultee as a concern, but the development proposal has been modified to make it acceptable in the view of the statutory consultee (unless the nominated officer has compelling reasons to consider otherwise).”

Schedule 1 includes applications for householder development, minor commercial development, minor residential development (fewer than ten dwellings), most reserved matters, condition discharges, prior approvals, permissions in principle, NMAs and certificates of lawfulness.

There are a few changes in the make-up of the schedules since the draft proposals that I summarised in my 31 May 2025 blog post Small Changes , for example:

  • reserved matters applications in relation to phased outline planning permissions will only be in Schedule 2 if the outline permission scheme is for the provision of 500 or more dwellings or buildings with 50,000 sq m or more floorspace.
  • section 73 applications will now be in the same schedule as the application for the original permission.

Local authorities will need to adopt appropriate processes to get this right. This table in the Lichfields blog post gave me a familiar sinking feeling…

What can go wrong?

Well, as set out in the statutory guidance:

“For the avoidance of doubt, where local planning authorities do not comply with the Regulations from the date they come into force (31 October 2026) and their planning committees make decisions on applications which must be delegated officers [sic], those decisions may be subject to judicial review by anyone aggrieved by the decision. This may lead to the quashing of the decision.”

Let’s look at a couple of permutations:

  • Planning committee makes a decision which should have been delegated to an officer. If the decision is to approve, that gives rise to the potential for third parties to challenge the decision. If the decision is to refuse, what does the applicant do? If the authority does not agree to re-determine the application (at least before the decision is formally issued), yes it could judicially review the decision but its more effective remedy may simply be to appeal (and in so will have to grapple with the dilemma of potentially being in a position where it is submitting an appeal in relation to an unlawful refusal notice).
  • Officer makes a decision on a Schedule 2 application without having considered with the nominated member, in accordance with its published procedures, whether it should be determined by committee. First of all, to state the obvious, in many contentious cases there is going to be much pressure placed on the nominated officer and member (usually from objectors, sometimes potentially even from the applicant) for the application to go to committee. If there are grounds for asserting that the process has not been carried out lawfully, you can bet that they will be relied upon. Officers really will need to be robust and clear in their approach and to have the full support of members in order for these changes to work as envisaged and not to lead to unnecessary delays.

Last comment: I googled to find that previous blog post I did on these proposals. This is how reliable or not Google AI is, folks. Matt, if you wrote it I’m sure the blog would be more popular!

Simon Ricketts, 13 June 2026

Personal views, et cetera

Crewsing For A Bruising?

The 7 May 2026 local election results will create various flashpoints as between locally elected politicians and the government’s planning policies.

An early, perhaps totemic, one is over the proposed new town at Crews Hill and Chase Park within the north London borough of Enfield, now that the Conservatives have taken the council.

The Government’s 23 March 2026 new towns draft programme (the consultation period for which closed on 19 May) has it as one of three “priority interventions” within its final draft shortlist of seven:

“Crews Hill and Chase Park, Enfield provides an opportunity with high potential for land value capture through green belt release – delivering up to 21,000 homes in outer London, a region facing extremely high housing demand and low housing affordability.

The potential impacts on the natural landscape could be significant given the site’s greenfield status. These will be mitigated wherever possible through comprehensive masterplanning and consideration of how the Enfield Chase Landscape Recovery project could support mitigation and nature recovery.

Our view is that any remaining impacts would be outweighed by the need for housing delivery in London and low availability of land, especially as the existing greenfield land is low-quality agricultural use.”

The previous Labour administration had supported the designation.

The submitted local plan, currently at examination, allocates Crews Hill and Chase Park as strategic growth areas, albeit not at the scale envisaged by the government’s New Towns Taskforce. Following the government’s earlier new towns announcement in December 2025, the local plan inspector had invited responses to the issues raised in so far as they might relate to the local plan examination process and the council had responded on 20 January 2026 that further engagement on the new town designation would take place separate from progress on the proposed local plan allocations. Main modifications consultation is still to take place followed by publication of the inspector’s final report.

In the meantime, on 28 May 2026, following the election of councillor Alessandro Georgiou as leader, the council announced that it has “formally withdrawn” from the new towns programme and “will no longer support proposals linked to the programme, including development at Crews Hill, Vicarage Farm and across parts of the borough’s Green Belt”. Georgiou’s letter states:

“The new Conservative administration was elected on a clear and unequivocal mandate to protect our borough’s irreplaceable green spaces. The strength of public feeling on this matter cannot be overstated: 77% of the Enfield electorate voted for parties whose 2026 manifestos explicitly committed to opposing the proposed New Town. This decision directly reflects the democratic will of the residents we have  been chosen to represent.

… it is important to note that the London Borough of Enfield is itself a major landowner within the designated New Town area. As the principal custodian of this land, our administration has resolved to use our strategic position and ownership rights to actively ensure that these vital natural assets are preserved, rather than being surrendered to unsustainable urban sprawl.”

It’s an interesting battle of “democratic wills” given that of course Labour’s 2024 general election manifesto promised to “build a new generation of new towns” across England.

The government’s March 2026 new towns consultation programme consultation document indicated that the government “intends to publish final proposals and confirm the new towns locations later in the Summer. We will publish a full government response to the recommendations of the New Towns Taskforce, including more detail on how our confirmed locations will be delivered in line with our ambition for the programme.

Following confirmation of which locations will be taken forward through the New Towns Programme, the government will use every lever at its disposal to prioritise early delivery of homes and infrastructure. This includes establishing clear programme governance through a single front door to government, agreeing delivery vehicles for selected locations, and mobilising funding and business case work with local partners to enable infrastructure-first masterplanning.”

However, ahead even of publishing those final proposals, the prime minster has this week come out fighting in reaction to the position now taken by Enfield. From a 3 June 2026 press statement :

“Where projects have stalled or been watered down, the government will back mayors to push them through – unlocking homes, infrastructure and jobs, particularly for younger generations.

This includes challenging Enfield Council’s refusal to support a proposed New Town in an area with significant housing need, which is near to an under-used train station. The Prime Minister is clear that decisions on new towns will be taken in the national interest alone, because it will be the next generation that suffers from inaction.

He will also confirm action to deliver the public transport services that new homes rely on. This includes confirming that the government is in discussion with the Mayor of London to bring the local services from Moorgate to Welwyn Garden City and Stevenage under Transport for London control. This could improve reliability and deliver easier connections across the network, including the proposed New Town at Crews Hill and Chase Park.”

So what could we see now? Surely, negotiation between the Government and the Mayor of London with a view to the Mayor creating a Mayoral Development Corporation, with compulsory purchase as well as planning powers, to seek to ensure that the Crews Hill and Chase Park proposal comes forward. Given the end of the Mayor’s current political term in May 2028 and the prospect of a general election the following year at the latest, there is some need for speed.

The prime minister presumably cannot be seen to back down in the face of this challenge. If he does, the whole new towns programme could begin to unravel.

And what of the local plan? No doubt any attempt to withdraw it would lead to MHCLG intervention. But will the inspector still be able to find the plan “sound”, unless he has sufficient reassurance from the Mayor and/or government as to the steps they will be taking if the council continues to hold out?

Projects of this scale (1) require long-term political commitment and (2) invariably face local opposition.

NB I really enjoyed our “Ten Years’ Time” event on Monday evening. Thank you to those who came and thank you to all of our stellar panellists. The event raised a healthy sum for youth charity XLP (final amount still being totted up). However, we only scratched the surface of the theme. I wish I had asked the panel to predict what progress will be made in relation to any of the proposed new towns by 2036.  Answers on a postcard, if anyone remembers them.

Simon Ricketts, 5 June 2026

Personal views, et cetera