Various of us, including Victoria, will be discussing the documents in detail at our clubhouse Planning Law Unplanned session from 6pm on Tuesday 27 July 2021. Do join us, either to listen or to make your views known. A link is here.
The House of Commons HCLG Committee report on permitted development rights
The Committee’s report was published on 22 July 2021.
I recommend reading the report itself. But some extracts from the summary:
“Whilst we understand the intention behind the recent changes, we have concerns about their impact, including on local planning authorities (LPAs) and the critical role they play in place-making. The ability of LPAs to control permitted development is limited to certain prescribed matters, principally those set out in the prior approval process. We support the use of prior approval and other conditions to control the quality of permitted development, but we heard the regime had become so complicated it was now little different from the full planning system. Furthermore, the Government has not explained how its approach to PDR fits with its proposed reforms in the planning White Paper. In particular, the recent changes appear to contradict the increased focus in the White Paper on plan-led development and local democratic involvement.
For these reasons, we recommend the Government pause any further extensions of permitted development rights for change of use to residential, including the new class MA right, which is due to take effect on 1 August, and conduct a review of their role within the wider planning system. As part of that review, we recommend it set out its long-term vision for permitted development for change of use to residential and explain how it plans to retain the benefits of these PDRs whilst not also sacrificing the ability of LPAs to shape their communities.
We broadly welcome the new use class E, as we can see the advantages of greater flexibility, but we are concerned it allows out-of-town premises, such as office blocks, to convert to retail without having first gone through the sequential test.”
The House of Commons and House of Lords both rise on 22 July 2021 and are due to return on 6 September 2021, which means that each year this week and next we always see many documents published and announcements made. Much festivity.
This week last year the Planning White Paper was eagerly awaited of course but ran late, eventually being published in the first week of August. At one stage we had expected an update by the Government on progress by now, including its response to last year’s consultation process but Robert Jenrick announced back at the beginning of the month that we will not see this until the Autumn and there will be no Bill until some time after that. (For a summary of MHCLG’s current priorities, see his 6 July 2021 speech to the Local Government Association, or indeed Nicola Gooch’s 16 July 2021 blog post on the speech).
But there have already been various other announcements and publications and in this post I will just pick randomly from them, Quality Street style.
Of particular interest is the Department for Transport’s Transport Decarbonisation Plan (14 July 2021) which sets out the road map (no, wrong expression) for reducing transport’s greenhouse gas emissions to net zero. It is a turbo-charged (no, wrong expression), “high ambition”, plan covering all modes of transport. There is a wide-ranging series of commitments over 220 pages of text.
What is there that directly refers to the planning system? Aside from confirmation that the Government will be reviewing the National Networks National Policy Statement, there is a wider commitment to “embed transport decarbonisation principles in spatial planning and across transport policymaking“. Pages 156 to 160 address this in detail and I am going to no more than set out below large sections of this section:
“…The planning system has an important role to play in encouraging development that promotes a shift towards sustainable transport networks and the achievement of net zero transport systems.
Traffic issues have often caused opposition to housebuilding. There is a legacy of developments that give people few alternatives to driving, are difficult to serve efficiently by public transport and are laid out in ways which discourage walking and cycling. Developments which are planned to minimise car use, promote sustainable transport choices, and are properly connected to existing public transport could help make new building more publicly acceptable.
The National Planning Policy Framework (NPPF) makes clear we already expect sustainable transport issues to be considered from the earliest stages of plan-making and development proposals, so that opportunities to promote cycling, walking and public transport are pursued. Planning policies should already provide for high quality cycling and walking networks and supporting facilities such as cycle parking (drawing on Local Cycling and Walking Infrastructure Plans). The NPPF also outlines that new developments should promote sustainable transport, taking opportunities to promote walking, cycling and public transport. However, while many local plans already say the right things, they are not always followed consistently in planning decisions. Developments often do little or nothing meaningful to enable cycling and walking, or to be properly and efficiently accessible by public transport. Sometimes they make cycling and walking provision worse. We can and must do better.
Last summer, the Government set out its vision for a new and improved planning system in the Planning for the Future White Paper, a vision to make good on the Government’s pledge to build back better, build back faster and build back greener. The White Paper set out how the planning system is central to our most important national challenges, including combating climate change and supporting sustainable growth.
A reformed planning system can assist in achieving the ambition of a zero emission transport future. The planning reforms will provide an opportunity to consider how sustainable transport is planned for and importantly how it is delivered to support sustainable growth and drive more sustainable use of our existing built environment e.g. planning for new development around existing transport hubs, for all developments to be easily and safely accessible and navigable by foot and cycle, and to make existing cycling and walking provision better. Through good design and proper consideration of the needs of our communities, we can better connect people, making communities more accessible, inclusive, safe, and attractive as well as promoting the principles of 20-minute neighbourhoods. We are working with the Ministry of Housing, Communities & Local Government and the Local Government Association to place cycling, walking and public transport provision at the heart of local plan making and decision taking for new developments. In doing so, we recognise the particular challenges faced by rural and remote areas in this regard, and will work, including through the upcoming Future of Transport: Rural Strategy, to ensure policies recognise differing geographies.
The National Model Design Code sets out a process for developing local design codes and guides, with supporting design guidance on movement and public spaces including streets. It outlines an expectation that development should consist of a well-connected network of streets with good public transport and an emphasis on active travel modes including walking and cycling. Building on this, we will also ensure that an updated Manual for Streets aligns with these principles and is routinely used for plan making and decision taking to secure better outcomes for our streets and public realm. These documents can play a key role in delivering high quality, accessible, secure and safe cycle storage. We will work with Active Travel England and other key stakeholders to ensure that the importance of securing high quality cycling and walking provision is embedded within the planning system.
We recognise that the Government has a role in helping Local Planning and Highways Authorities to better plan for sustainable transport and develop innovative policies to reduce car dependency. We need to move away from transport planning based on predicting future demand to provide capacity (‘predict and provide’) to planning that sets an outcome communities want to achieve and provides the transport solutions to deliver those outcomes (sometimes referred to as ‘vision and validate’). We will continue to work with MHCLG to identify how we can best support local authorities to develop innovative sustainable transport policies as part of the planning process, how this can be used to better assess planning applications, and better monitor local transport outcomes to deliver on our ambitions for sustainable transport use.
Achieving these ambitions will require a long-term collective effort across government, local authorities, communities, businesses, and developers. We are exploring with MHCLG how the planning system can be designed to facilitate better collaboration and planning for growth across local authority boundaries, with all key stakeholders involved, to ensure that we align that growth with both strategic and local infrastructure delivery to make good on our manifesto commitment to put infrastructure first and drive growth sustainably.”
“New ‘County Deals’ to take devolution beyond the largest cities, offering the rest of England the same powers metro mayors have gained over things like transport, skills and economic support.
County Deals will be bespoke to the needs of individual places, bringing decisions closer to people and places, potentially allowing more places to benefit from strong, high profile local champions. County Deals will give places the tools they need to pilot new ideas, create jobs, drive growth and improve public services.
Further detail will be set out in the Levelling Up White Paper, but as the Prime Minister set out, county deals will not be one size fits all, and government will take a flexible approach to allow more places to agree devolution.”
“We are […] encouraging councils to use Compulsory Purchase Orders (CPOs) for long-term empty properties and where property owners are stalling regeneration plans. We want to:
• Ensure councils have the right Compulsory Purchase Order enabling powers to support the transformation of high streets and other regeneration projects so that they can acquire vacant and derelict buildings in order to attract new private investment.
• Ensure as part of our planning reforms that Compulsory Purchase Orders can support more effective land assembly to facilitate the development of growth areas identified in the new-style local plans, particularly when they support town centre regeneration.
• Strengthen the capacity and support for local authorities to ensure they are able to use these new Compulsory Purchase Order powers and rights to support the transformation of high streets.”
As regards the conversion of high streets to homes, the following passage was eyebrow raising. So how would this work with the operation of permitted development rights then? And the provision of “green infrastructure” a justification for development intensification?
“Where high streets are being repurposed for homes, green infrastructure and improved public space should be integral. We will explore how reforms to the planning system can ensure green infrastructure is better incorporated into new development. Development of homes, businesses and community space could be intensified on parts of sites to free up land for green infrastructure provision.”
And just to keep practitioners on their toes, there was the Planning Inspectorate’s announcement Plans to resume in-person events (15 July 2021). In one part of the policy forest there’s the transport decarbonisation plan, in another part, brmm brmm, off we go back to in person inquiries from 13 September:
“For hearings and inquiries taking place from 13 September we will be reverting to the pre-pandemic approach of them being arranged by local authorities. In-person events will be possible, but where participants (including the inspector) need to present their evidence or participate virtually this will need to be facilitated by the local authority.
Where in-person elements are planned, the local authority will need to be prepared for the event to be held fully virtually in case pandemic restrictions change.”
Let’s see what more announcements the coming week brings…
Simon Ricketts, 16 July 2021
Personal views, et cetera
This week’s clubhouse Planning Law Unplanned session (6pm Tuesday 20 July) is on the theme “A Green Recovery”: what does it mean; what opportunities? Lucy Wood (Barton Willmore) will lead the session, which will take a good hard look at the government’s green policy agenda (including the transport decarbonisation plan) and what it means for business, councils and communities, alongside special guests including Neil Collar (Brodies) and others still to be confirmed. An invitation to the app and event is here.
“…in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.”
This passage comes from a 1921 case, Cape Brandy Syndicate v IRC, and was quoted this week by Thornton J in the latest case about a self-builder who had unwittingly lost any right to an exemption from the community infrastructure levy: Gardiner v Hertsmere Borough Council (Thornton J, 6 July 2021). (For a previous unfortunate tale see my 19 January 2019 blog post CIL The Merciless).
The purpose of this post is simply to point out again as to how important, but difficult, it is to arrive at an accurate interpretation of the Community Infrastructure Levy Regulations.
This latest case raised “a point of principle as to whether the self-build exemption provided for in Regulation 54A of the Community Infrastructure Regulations (2010/948) (the CIL Regulations) applies to the grant of planning permission, pursuant to S73A TCPA, for development already carried out.”
Query why there is a self-build exemption in the first place for such large self-build schemes as those which end up in these sorts of disputes, but on a wider basis the case is certainly a warning of the CIL consequences of carrying out development in breach of planning control…
“The Claimant is a self- builder who obtained planning permission for partial demolition of, and extension to, his existing chalet bungalow at 59 Aldenham Avenue, Radlett, Hertfordshire, WD7 8JA (“the Site”). CIL was not payable as the Defendant exempts residential extensions from the levy. The Defendant’s planning officers visited the site during the course of the demolition work and considered that the works undertaken had gone beyond the works authorised by the planning permission. They were of the view that the development was unauthorised. In response the Claimant submitted a new planning application to regularise the demolition works undertaken and to permit the subsequent rebuild now required (as opposed to the former extension) of the house. Planning permission was subsequently granted, part-retrospectively, pursuant to s.73A TCPA for the demolition and the erection of a new detached 6-bed dwelling.
The Defendant [Hertsmere Borough Council] is the charging and collecting authority for CIL in the area of Radlett, Hertfordshire. The Interested Party [the Secretary of State] was joined by order of Mr Justice Holgate and directed to produce written submissions to assist the Court as the claim raises issues of interpretation of the CIL Regulations which may have wider implications.”
The case was despatched by Thornton J in short order:
“It is […] apparent, when the ‘strict criteria’ in Regulation 54B(2) are tested against the grant of planning permission, pursuant to Section 73A TCPA, for development already carried out, that they bar the availability of the exemption for such permission.
Firstly; the claim for an exemption must be made by a person who “intends to build, or commission the building of, a new dwelling” (Reg 54B(2)(a)). The references to ‘intends’ and ‘commission’ are forward looking. They are not consistent with an application by a person who has already built or begun to build a dwelling.
Secondly; the claim must be made by someone who has assumed liability to pay CIL in respect of the new dwelling’ (Regulation 54B(2)(a)(ii)). The assumption of liability is a prerequisite to obtaining the exemption. Yet this is not possible for retrospective planning permission granted under Section 73A TCPA, by virtue of Regulation 7(5) and 31 CIL Regulations. Regulation 31 governs the assumption of liability. It refers to “a person who wishes to assume liability in respect of a chargeable development”. The precise use of the words “a chargeable development” make clear that a chargeable development must exist in order for a person to assume liability to pay CIL in respect of it. In other words liability cannot be assumed under Regulation 31, in respect of a chargeable development, until such time as the chargeable development exists. This is necessarily after planning permission has been granted, by virtue of Regulation 9(1). Liability cannot be assumed for something that does not exist and may never exist (if planning permission is not granted).”
“The Claimant’s wife pointed out in correspondence that “our record of engagement with the Council clearly reflects our respect for the [planning] process and that we are exactly the type of residents to whom the CIL exemption is supposed to be available”. In response, the Defendant acknowledged that “the circumstances of this case that caused the CIL liability to be triggered may seem unfair”.
To which Thornton J’s response was the passage at the beginning of this post.
The Lambeth case considered whether a surcharge for late payment of the levy is dependent on the service by a collecting authority of a liability and/or a demand notice and whether, where a revised liability and/or demand notice is issued or served, previously incurred late payment surcharges cease to be payable? In essence, if you were liable to pay CIL but failed to pay it & then only subsequently does the charging authority issue its liability or demand notice, is it fair that the authority can still levy a surcharge for non-payment?
“The Claimant [the London Borough of Lambeth] contends that liability for a late payment surcharge is: a. not contingent on the service of a Liability or Demand Notice; and b. the issue/service of a revised Liability and/or Demand Notice does not have the effect of extinguishing liability for a late payment surcharge which has already been incurred.
The Defendant [the Secretary of State] accepts that the Claimant’s interpretation of the CIL Regulations is correct and concedes the claim.
The Interested Party [Thornton Park (London) Limited] continues to contest the claim. The Interested Party’s case before the Inspector and this Court is that the effect of Regulation 65(9) is that the issue of a revised Demand Notice means that any previously served Demand Notices cease to have effect so a surcharge for late payment can only be imposed 30 days after service of the revised notice, as per Regulation 85(1).
“The essential factual background is as follows: the Claimant granted planning permission for development, for which the Interested Party assumed responsibility for payment of CIL and in respect of which the Claimant duly served a Liability Notice. On 23 November 2018, the Claimant served a Demand Notice stating the amount payable by the Interested Party to be £5,549,963.41 and that the amount was payable in two instalments: on 25 January 2019 and 24 July 2019. Those instalments were not paid. On 18 September 2019, the Claimant granted the Interested Party’s application for a non-material amendment to the planning permission resulting in a change of the chargeable amount. Revised Liability and Demand Notices were served to reflect the changes. On 15 October 2019, the Claimant issued a revised demand notice to include late payment surcharges. The Claimant issued a further revised Liability Notice on 27 November 2019 followed by a revised Demand Notice (including late payment surcharge [of £465,617.67]) on 10 December 2019, to account for further changes to the development and thus to the chargeable amount. In response the Interested Party appealed [successfully] against the payment of the surcharge on the basis that the breach which lead to the imposition of the surcharge had not occurred.”
The council challenged the inspector’s decision. Thornton J concluded that the inspector had “erred in finding that the Claimant had no lawful authority to impose a late payment surcharge with respect to unpaid CIL. Liability for a late payment surcharge is not contingent on the service of a Liability or Demand Notice. The issue/service of a revised Liability and/or Demand Notice does not have the effect of extinguishing liability for a late payment surcharge which has already been incurred.”
As stated by Thornton J in Gardiner, and stated in similar terms in Lambeth:
“The Community Infrastructure Levy is akin to a tax. The proper interpretation of tax legislation requires a close analysis of what, on a purposive construction, the statute actually requires”.
Forget about trying to what work out what might have been equitable. Just read the Regs.
Cheerful point for the future: CIL’s mooted replacement, the Infrastructure Levy, will also be “akin to a tax” and of course will contain a whole new set of trip hazards and uncertainties. Given that there can be little room for flexibility, or consideration of what may be an equitable outcome, at the point of liability, the legislation itself inevitably ends up having to allow, as best it can, for all permutations of situation and that’s where the complexity comes (and grows with every amendment).
Simon Ricketts, 10 July 2021
Personal views, et cetera
Two events coming up this week:
Our clubhouse Planning Law, Unplanned session at 6 pm on Tuesday 13 July, is entitled “JR = VAR? Reviewing judicial review & human rights protections”. What are the Government’s proposals for judicial review & human rights reform and what are the potential practical implications for the planning system in particular? The discussion will be led by Charlie Banner QC (Keating Chambers), Celina Colquhoun (39 Essex Chambers and former member of the Faulks review) and Joshua Rozenberg (honorary QC, leading legal commentator & author of “Enemies of the people: How Judges Shape Society”).
Please feel free to join us, whether to take part in the discussion or just to listen. Invitation to app & event here.
A joint Town Legal and 39 Essex Chambers webinar is also taking place, at 5 pm on Thursday 15 July: Judicial Review & The Planning System in 2021: Practical tips, current trends, what’s round the corner?
To what extent is human safety, and the safe construction of buildings, a matter for the planning system? It can be difficult to determine and this blog post just scratches the surface – there’s a book to be written by someone (not me!) on the subject.
Last week the High Court handed down judgment in Valero Logistics UK Limited v Plymouth City Council (Thornton J, 30 June 2021). Valero and another company operate distilled fuel storage depots, the closest of which is approximately 125m away from a helipad within the grounds of Victoria House, Plymouth. “The depots are “establishments” regulated under the Control of Major Accident Hazards Regulations (SI2015/483) (‘the COMAH sites’) because of the intrinsic dangers to human health and the environment which the products handled and stored there present. Highly flammable fuel is regularly unloaded at a dock approximately 400 metres south east of the site and conveyed by over-ground pipes to the Claimants’ depots, where it is stored in above-ground tanks.”
They were challenging the council’s grant of planning permission for commercial use of the helipad which is currently only used for purposes ancillary to use of the residential use of the house. They had the following five, inter-related, grounds of challenge:
“Ground 1 – the Defendant failed to consider a material consideration by not considering the risks posed by the development to the COMAH sites.
Ground 2 – the Defendant misunderstood the “fallback” position and, by relying on that misunderstanding, it skewed the process by which it made the decision.
Ground 3 – the Defendant acted irrationally by relying on the existence of other regulatory regimes in deciding to grant permission.
Ground 4 – the Defendant erred in law by granting permission to an application that conflicted with the development plan when no other material considerations justified such a decision.
Ground 5 – the decision was irrational.
The Claimants point to the potentially catastrophic consequences of a helicopter crashing onto highly flammable fuel and say that what unites the grounds is a decision-making process and decision that abdicates responsibility for the dangers created by the proposed development. In particular, the Defendant conspicuously failed to engage with the scale of the risk posed to the COMAH sites by commercially operated helicopters flying at low heights over large quantities of highly flammable fuel. To the extent the Defendant recognised any risk, it sought to off-load it onto the Civil Aviation Authority (CAA) even though the CAA did/does not have the mandate or the expertise to evaluate the consequences on the ground of crashing aircraft or to take land-based decisions accordingly. These remain the safety responsibilities of others including the Defendant who is said to have been, and remains, in denial about this.”
The claim failed on all grounds. I want just to point to the summary by Thornton J as to the approach to be taken to safety and other matters covered by other regulatory regimes:
“Where a regulatory regime exists to deal with an issue raised by a planning application, it is open to a Local Planning Authority to place reliance upon the effective operation of that regime in determining an application for planning permission. However, the Local Planning Authority cannot simply ignore the issues in question. It must satisfy itself that the other regulatory regime is capable of regulating the relevant issues..”
The safety concerns were indeed considered by the council’s planning committee. As summarised by the judge:
“It is clear from the [discussion at the planning committee] that the Planning Officer and Members recognised that the risks to the COMAH sites from a helicopter crash were a principal issue in their consideration of the planning application. Extensive consideration was given to the risks and their mitigation including: how the helicopter is operated (under regulatory controls imposed by the CAA); who operates it (professional pilots); type and class of helicopter (Performance Class 1); and where the helicopter is flown (precise flight paths to and from the Site, mainly over water and strictly enforced). In addition, the Members ensured direct communications between the Site Operator and COMAH sites (as well as the Harbour Commissioners) prior to flights. The Committee understood correctly that it must exercise its judgment to assess the risks of the proposal having taken account of the views of the HSE and Civil Aviation Authority. The planning judgment reached was that the current ancillary ad hoc private helicopter use from the Site was less safe than the increased regulation over and greater professionalism of, commercial flying operations from the Site.
The Claimants criticise the Committee’s understanding of risk analysis but they construe risk assessment and minimisation too narrowly to assert that the risks to the COMAH sites cannot be accounted for unless specifically addressed. This is to ignore the broader set of technical and organisational mitigation to reduce the risk of a helicopter crash. The Claimants submit that the Defendant should itself have gone to the helicopter accident statistics and done its own risk assessment to test the 1 in a billion chance of catastrophic helicopter failure set out in the Interested Party’s risk assessment but, as the Planning Officer said during the debate, the Planning Committee are not specialist risk assessors. The Committee heard representations from Valero on the safety risks at the Committee meeting. The Claimants’ submissions seek to hypercritically retest the merits of the decision. It is correct to say that the officer erred in reporting the risk of failure to the Committee as 1 in 9 billion not 1 in 1 billion. The risk was however correctly reported in the Officer’s written report. It is well established that the reports of Planning Officers must not be subject to hypercritical analysis. The same must apply with even greater force to the oral discussion at a Committee meeting where an officer is responding on his feet to questions from members without the luxury of contemplation allowed for in the production of a written document. It is apparent from a review of the transcript of the whole meeting that the Officer and Committee members understood (and were concerned) about the nature of the risks posed by the proposed development to the COMAH sites and further understood that it was ultimately a matter of planning judgment as to whether the risks and mitigation measures (general helicopter technical and organisational requirements, as well as specific COMAH site requirements and regulation by the CAA) were acceptable. They formed the view that they were acceptable, which was a view they were, in my judgment, entitled to come to on the evidence before them.”
So, a decision maker can rely on the effective operation of another regulatory regime, as long as it satisfies itself that the other regulatory regime is capable of regulating the relevant issues.
(Aside from issues of safety and major accidents, the “overlap with other regulatory regimes” question arose in R (Squire) v Shropshire Council (Court of Appeal, 24 May 2019) which I covered in my 1 June 2019 blog post Chickens**t EIA, where a planning permission was quashed on the basis that the decision maker had wrongly concluded that odour and dust issues arising from the proposed spreading of manure would be adequately policed by the Environment Agency via its IPPC permitting regime).
The following complications arise:
First of all, quite an onus is placed on the decision maker, given how complex it is to ascertain the nature of risks arising and how the regulatory regime operates, in the context of the possibly tragic consequences of making the wrong decision – and often in the face of vociferous detailed objections.
Secondly, the question of what is a material planning consideration is famously amorphous and over time issues as to building safety have been drawn into the planning system, which could be dealt with by way of other regulatory systems (or which are dealt with, but at a much later stage).
At a local level, think for example of some central London authorities’ detailed controls over subterranean development (see my 5 December 2016 blog post First World Problems: Basements).
At a national level, in response to the Grenfell tragedy and following commitments made in Building a Safer Future: Proposals for Reform of the Building Safety Regulatory System in the light of Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety the Government has made the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021, which introduces 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. The 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 new regime, known as “Planning Gateway One”, applies to planning applications made from 1 August 2021 onwards and the Government’s Planning Practice Guidance has been updated. “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.”
This is obviously prudent, rather than for vital safety issues to be left for consideration through the Building Regulations and other requirements at a later stage in the process. But, again local planning authorities are increasingly being drawn into matters outside their traditional remit. What level of scrutiny will they need to give to the statements and on what basis are they justified in requiring further information, even if the HSE is satisfied?
The judge in Valero previously presided over another high profile case as to the extent of a local planning authority’s duties in relation to public safety. In Crest Nicholson Operations Limited v West Berkshire Council (Thornton J, 12 February 2021) Crest and others challenged West Berkshire Council’s designation of a Detailed Emergency Planning Zone (“DEPZ”) under the Radiation (Emergency Preparedness and Public Information) Regulations 2019, which were “part of an international, EU and national response to the meltdown of three reactors at the Fukushima Daiichi nuclear power plant in Japan in March 2011 following an undersea earthquake.”
“One of the key changes to emergency planning, reflected in the Regulations, is to require risk assessment and planning for events which have a low likelihood of occurrence but high impact in the event they do occur; as with the Fukushima disaster. Another change, specific to the Regulations, concerns a shift in responsibility for deciding on the extent of a geographical zone in which it is proportionate to plan for protective action in the event of a radiation emergency. The zone is referred to in the Regulations as a ‘Detailed Emergency Planning Zone’ (DEPZ). Responsibility used to lie with either the Office for Nuclear Regulation or the Health and Safety Executive but now rests with the relevant local authority, who must designate the zone on the basis of a recommendation from the site operator.
On 12 March 2020, West Berkshire District Council designated the DEPZ around the Burghfield Atomic Weapons Establishment with a minimum radius of 3160 m from the centre of the site. The site is of national strategic importance. Nuclear weapons are assembled, maintained and decommissioned there. Under the previous regime, the DEPZ was based on a minimum radius of 1600 metres. The extension covers much of the 700 hectares of land belonging to the Claimants and previously earmarked for the development of 15000 homes.”
“The Claimants contend that the rationale for the new and radically extended DEPZ on a recommendation by the privately run operator, AWE, is simply not known. The only publicly facing document contains, at best, a partial rationale for the designation, which is insufficient, as a matter of law, to meet the requirements of the Regulations. The document was not made available to the public until after the DEPZ was designated which was procedurally improper and in breach of statutory requirements. Regulatory oversight of the designation process has been deficient.”
The challenge failed. Those seeking to second-guess decisions that a public authority has reached on matters that fall within the authority’s technical expertise definitely face an uphill struggle:
“The Courts have recognised the need for judicial restraint where the issue under scrutiny falls within the particular specialism or expertise of the defendant public authority. In R(Mott) v Environment Agency Beatson LJ observed that “a regulatory body such as the [Environment] Agency is clearly entitled to deploy its experience, technical expertise and statutory mandate in support of its decisions, and to expect a court considering a challenge by judicial review to have regard to that expertise” (§63). In this case the defendant public authority is the local authority which does not itself hold the technical expertise itself to assess AWE’s work. Nonetheless it drew on assistance and advice from the ONR and PHE. I consider this to be akin to the position where the defendant public authority relies on experts, which the Courts have acknowledged entitles the public authority to a margin of appreciation (relevant that the defendant “had access to internal expert advice and the views of external bodies” in deciding whether there was material before the defendant on which it could rationally be decided that the approval should be made: R(Christian Concern) v Secretary of State for Health and Social Care  EWHC 1546 (Admin)(Divisional Court) at §30 (Singh LJ)) (see also “Where a screening decision is based on the opinion of experts, which is relevant and informed, the decision maker is entitled to rely upon their advice”; Lang J in R (Swire) v Secretary of State for Housing Communities and Local Government  EWHC 1298 (Admin) at §61).”
This all of course places much power in the hands of public bodies such as the Health and Safety Executive, Environment Agency, Public Health England and Office for Nuclear Regulation.
In practice not only does it become difficult for local planning authorities to do anything other than rubber-stamp the advice that they receive given that to do so without sufficient reasoning might not just render their decision liable to challenge but they also need to be aware of the potential for liability in common law negligence to arise. After all, in Kane v New Forest District Council (Court of Appeal, 13 June 2001) it was held that a pedestrian injured by a car when he had left a footpath to cross a road had a real prospect of success in a negligence claim against a local planning authority, given that the authority had required the path to be provided in relation to a development but had not done anything to make sure that the crossing point would be visible to drivers.
The court said this: “it was [the local planning authority] who required this footpath to be constructed. I cannot accept that in these circumstances they were entitled to wash their hands of that danger and simply leave it to others to cure it by improving the sightlines. It is one thing to say that at the time when the respondents required the construction of this footpath they had every reason to suppose that the improvements along The White Cottage frontage would ultimately allow it to be safely opened and used: quite another to say that they were later entitled to stand idly by whilst, as they must have known, the footpath lay open to the public in a recognisably dangerous state.”
The NPPF simply has references to the desirability of “safe communities” and “safe places” and these specific passages:
“Local planning authorities should consult the appropriate bodies when considering applications for the siting of, or changes to, major hazard sites, installations or pipelines, or for development around them.” (paragraph 45).
“Planning policies and decisions should promote public safety and take into account wider security and defence requirements by:
a) anticipating and addressing possible malicious threats and natural hazards, especially in locations where large numbers of people are expected to congregate. Policies for relevant areas (such as town centre and regeneration frameworks), and the layout and design of developments, should be informed by the most up-to-date information available from the police and other agencies about the nature of potential threats and their implications. This includes appropriate and proportionate steps that can be taken to reduce vulnerability, increase resilience and ensure public safety and security; and
b) recognising and supporting development required for operational defence and security purposes, and ensuring that operational sites are not affected adversely by the impact of other development proposed in the area.” (paragraph 95).”
As I say, I’ve only scratched the surface of an important subject.
Simon Ricketts, 3 July 2021
Personal views, et cetera
This week, from 6 to 7.15 pm on Tuesday 6 July we have another big clubhouse Planning Law Unplanned event, We Need To Talk About Green Belt, leading off with contributions from barristers Jonathan Easton and Zack Simons, who will give a first-hand insight into their recent Bolton and Colney Heath inquiry decisions. Free invite to the app and event here.
What are “very special circumstances” which may justify the grant of planning permission for inappropriate development in the green belt?
Of course there is no definitive answer to that question. As set out in the National Planning Policy Framework (this is about application of national policy, rather than a matter of legislation), it is for the decision maker to determine whether the potential harm to the green belt by way of inappropriate development (the NPPF defines what is “inappropriate”) is “clearly outweighed by other considerations”.
I highlighted the difficulties of calibrating terms such as “very special circumstances” and (the test for changing green belt boundaries by way of plan making) “exceptional circumstances” in my 9 May 2020 blog post Zen & The Art Of Very Special Circumstances and also referred to a number of recent decisions.
We have now had more.
Much has of course been written about the inspector’s decision letter dated 14 June 2021 in relation to a proposed residential development in Colney Heath, Hertfordshire (see eg my 19 June 2021 blog post People In Houses…).
I thought I would briefly point to the following other examples:
Focus School, Stoke Poges
This was an inspector’s decision letter dated 24 May 2021 relating to proposed works to a listed school, comprising “erection of a multi-purpose space and ancillary rooms, removal of existing modular classrooms, creation of a new footpath link with Khalsa Academy, creation of temporary construction access on School Lane and related landscaping, SUDS and other drainage works and associated works to 6 no. TPO trees.”
These were the inspector’s conclusions on “very special circumstances”:
“33. The proposal would be inappropriate development in the Green Belt. The Framework establishes that substantial weight should be given to any harm to the Green Belt, and development should not be approved expect in very special circumstances. In addition, I have found that the scheme would also have a modest adverse impact on the openness of the Green Belt and the significance of the listed building. Very special circumstances will not exist unless the harm to the Green Belt and any other harm are clearly outweighed by other considerations.
34. The other considerations before me are substantial and carry significant weight. I am satisfied that the need for the proposal to provide additional accommodation at the school for exams, assemblies and PE has been clearly demonstrated. Paragraph 94 of the Framework gives great weight to the need to expand or alter schools and pupils at the school are currently severely disadvantaged by inadequate facilities at Pioneer House. I am satisfied that there are no alternative locations within the existing building or alternative development proposals that could satisfy this need but result in less Green Belt harm or other material harm.
35. The harm to the significance of the listed building would be less than substantial, with reference to paragraph 196 of the Framework. Paragraph 193 of the Framework establishes that great weight should be given to the conservation of a heritage asset. The statement of common ground establishes that the Council is satisfied that the harm to the listed building would be significantly outweighed by the public benefits that the proposal would bring to the Academy as an educational facility, through the improved facilities it would deliver and improvements to how the Academy operates, and the experience it provides for its pupils. I see no reason to take a contrary view. I am therefore satisfied that the benefits of the proposal, which are significant benefits of a public nature, clearly outweigh the less than substantial level of harm.
36. I find that the other considerations in this case clearly outweigh the harm that I have identified. Looking at the case as a whole, I consider that very special circumstances exist which justify the development.”
Land west of Wingates Industrial Estate, Wimberry Hill Road, Westhoughton, Bolton (ref: 3253244 – 21 June 2021)
This was a decision of the Secretary of State in relation to an application, that he had called in, for a large employment development which Harworth Group had made to Bolton Metropolitan Borough Council. Bolton had resolved to grant planning permission on 10 January 2020. As described by the inspectors, B J Sims BSc (Hons) CEng MICE MRTPI and D M Young JP BSc (Hons) MA MRTPI MIHE:
“The Part A outline development concept is to form an extension to the Wingates Industrial Estate where the stated intention of the Applicant Company is to create a high quality employment park incorporating the range of uses described in the application and providing 100,000sqm of floorspace.
The Part B full application is to first remove some timber animal shelters and then to create the site access and form development platforms. This is in anticipation of future proposals for buildings, including one very large scale, key storage and distribution warehouse and a number of smaller units in a range of sizes. The detailed Part B works would also include boundary landscaping works and the creation of an ecological enhancement area at the north western end of the site.”
Other proposals were considered by the same panel of inspectors at four separate inquiries including the Symmetry Park proposal referred to below.
These were the Secretary of State’s conclusions on “very special circumstances”:
“33.For the reasons given above, the Secretary of State considers that the application is not in accordance with Policies CG7AP, CG1,CG3 and OA3 of the development plan, and is not in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.
34.The material considerations which weigh against the proposal are the harm to the Green Belt and the landscape and visual impacts. The Secretary of State affords the Green Belt harm substantial negative weight and the landscape and visual harm significant negative weight.
35.The Secretary of State considers that the evident need for development of the type proposed carries substantial weight, and the economic benefits of the proposal carry very substantial weight in favour of the scheme. He considers that the benefits of effective landscape mitigation, a net gain in biodiversity, sustainable drainage to obviate flooding concerns, off site highway works to accommodate generated traffic, new or diverted footpaths where affected by the development, improved bus services and enhanced pedestrian and cycle access to the site each carry limited weight.
36.The Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and the other harms he has identified, are clearly outweighed by other considerations. Overall, the Secretary of State considers that the economic and other benefits of the proposal are collectively sufficient to outweigh the harm to the Green Belt and to the landscape such that very special circumstances exist to justify permitting the development.
37.For the reasons given above the Secretary of State considers that the material considerations in this case indicate a decision other than in accordance with the development plan.
38.The Secretary of State therefore concludes that planning permission should be granted.”
Symmetry Park, Junction 25 of the M6, Wigan (ref: 3253242 – 21 June 2021)
This was another call-in decision, following an inquiry held by the same inspectors, into proposals submitted by Tritax Symmetry Limited to Wigan Metropolitan Borough Council, “for the demolition of existing buildings and reprofiling of the site for development comprising:
• Full planning permission for the erection of 27,871 square metres of employment floor space (Use Class B8 with ancillary integral Use Class B1a floor space), comprising two units and the provision of associated infrastructure including sub-station, car parking, landscaping, access from the A49 roundabout and internal estate road; and
• Outline planning permission for the erection of up to 106,095 square metres of employment floor space (Use Class B8 with ancillary integral Use Class B1a floor space), including car parking, internal estate road and landscaping. All matters except for access are reserved, with access proposed from the A49 roundabout.”
Wigan had resolved to grant planning permission in January 2020.
These were the Secretary of State’s conclusions on “very special circumstances”:
“41.For the reasons given above, and in the light of his conclusion in paragraph 43 of this letter, the Secretary of State finds no conflict with development plan policies, and thus concludes that the application is in line with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.
42.The material considerations weighing against the proposal are the definitional harm to the Green Belt by virtue of inappropriate development, the limited and localised harm to Green Belt openness and the moderate harm from encroachment into the countryside. The Green Belt harm carries substantial weight. Also weighing against the proposal is the moderate visual and landscape harm, which carries moderate weight.
43.Weighing in favour of the proposal are the delivery of logistics floorspace which he accords very substantial weight. The locational benefits carry further significant weight. The socio-economic benefits also carry substantial weight. The biodiversity net gain and highway benefits collectively attract moderate weight.
44.The Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and the other harms he has identified, are clearly outweighed by other considerations. Overall, the Secretary of State considers that the economic and other benefits of the proposal are collectively sufficient to outweigh the harm to the Green Belt and to the landscape such that very special circumstances exist to justify permitting the development. As such he finds no conflict with CS Policy CP8 or Green Belt policy in Section 13 of the Framework.
45.Overall the Secretary of State considers that the material considerations in this case indicate a decision which is in line with the development plan – i.e. a grant of permission.
46.The Secretary of State therefore concludes that planning permission should be granted.”
We will continue to see decisions like this, and those referred to in my blog post last year, for so long as local plans do not properly meet the needs for development and/or manage green belt boundaries, although:
⁃ the value of call-ins versus the cost and delays arising may be another question, and
Meanwhile of course the rather dull debate continues as to whether there should be a proper reconsideration of green belt policy – dull only because it is clear how politically toxic (and therefore utterly hypothetical as an idea, whatever its merits) this would be. The HCLG Select Committee’s June 2021 report The future of the planning system in England recommended:
“We agree with evidence that called for the protection of the green spaces in the Green Belt; whilst also recognising that not all Green Belt land are green spaces. A review should examine the purpose of the Green Belt, including whether it continues to serve that purpose, how the public understand it, what should be criteria for inclusion, and what additional protections might be appropriate. The creation of new Local Plans also provides an opportunity for local reviews of Green Belts and the Government should help identify those local authorities where such reviews are particularly urgent. Local Plans can also relieve pressure on Green Belts by prioritising developments on brownfield sites. The Government should ensure there is sufficient funding provided to support their decontamination.”
That recommendation was roundly rejected by housing minister Christopher Pincher in the House of Commons on 14 June 2021:
“We are committed not only to protecting the green belt but to enhancing it, and those protections will remain in force when we bring in planning reforms. I can assure you, Mr Speaker, that we will not be taking the advice of the Select Committee, which suggested that we should undertake a wholesale reform of the green belt. We have committed to protect it, and so we shall, because only in exceptional circumstances may a local authority alter a green-belt boundary, using its local plan and consulting local people on where essential new housing should go, and it needs to show real evidence that it has examined all other reasonable options before proposing to release the green belt. We are committed to the green belt, and we will fight for it.”
i.e. , when it comes to any green belt reform, the Government will continue to…
Simon Ricketts, 25 June 2021
Personal views, et cetera
This week’s Clubhouse Planning Law Unplanned session will be at 5pm on Monday, so as not to draw too many people from the Tuesday evening football. We celebrate Pride month with Planning with Pride. There will be a series of special guests from the planning world, curated by my Town colleague Spencer Tewis-Allen. We would love your support. An invitation to the app and event is here.
…really don’t want other people to have houses, do they?
The prime minister can hardly be surprised when the affluent home-owning constituents of Chesham and Amersham register a protest vote against his plans for change, thinking that in some way he is coming for their beautiful part of the country, even though it bristles with statutory protections from development. First there has been the insensitivity with which HS2 has been forced through the Chilterns AONB with the case for longer tunnelling rejected (see my 30 July 2016 blog post HS2: The Very Select Committee) and secondly, as hitherto loyal Conservatives, they will have taken the prime minister at his word when with typical hyperbole he said in his foreword to last August’s white paper:
“Thanks to our planning system, we have nowhere near enough homes in the right places. People cannot afford to move to where their talents can be matched with opportunity. Businesses cannot afford to grow and create jobs. The whole thing is beginning to crumble and the time has come to do what too many have for too long lacked the courage to do – tear it down and start again.
That is what this paper proposes.
Radical reform unlike anything we have seen since the Second World War.
Not more fiddling around the edges, not simply painting over the damp patches, but levelling the foundations and building, from the ground up, a whole new planning system for England.”
“And, above all, that gives the people of this country the homes we need in the places we want to live at prices we can afford, so that all of us are free to live where we can connect our talents with opportunity.
Getting homes built is always a controversial business. Any planning application, however modest, almost inevitably attracts objections and I am sure there will be those who say this paper represents too much change too fast, too much of a break from what has gone before.
But what we have now simply does not work.
So let’s do better. Let’s make the system work for all of us. And let’s take big, bold steps so that we in this country can finally build the homes we all need and the future we all want to see.”
How easy it must be for other parties and for campaign groups to scaremonger when such coarse analogies are used – war, tearing things down, levelling foundations, building from the ground up.
The paper itself was not nearly as radical as the foreword would suggest and we have seen no further detail since. And so he is now on the defensive:
“What we want is sensible plans to allow development on brownfield sites. We’re not going to build on greenbelt sites, we’re not going to build all over the countryside.”
[What does this even mean? Of course there will continue to be green field development, and of course some green belt development – as there is under the current system].
This is such an unnecessarily controversial issue, carelessly caused, cynically amplified. The planning system doesn’t need to be torn up and was never going to be torn up. But where have the ministers been to explain, to persuade, to engage? Instead, a resounding, almost embarrassed, silence since that August 2020 white paper. The news vacuum as to the form that changes are likely to take has of course been filled with media speculation and campaigners’ characterisations which have now served to make the whole question more political than it ever needed to be.
We all know that what is needed is for the current planning system to work better, largely through clearer carrot and stick policies, through specific process improvements and simplifications – and with better resourcing. So as to deliver, yes, more homes, yes economic growth, yes in a planned way, yes meeting environmental and social, not just economic, goals. But none of that’s going to happen now is it? Because politics is all about retaining power, and planning is dependent on politics. So if you are relying on the planning system to enable you to move out of your parents’ house or out of an HMO; to start a family, or to grow a business, you know what? Your needs don’t matter. Not against the needs of a politician who doesn’t want to be the next Peter Fleet.
All this of course means that the current system needs to continue to work as best it can. The good news is that at least this week we had that Colney Heath appeal decision letter to demonstrate that the entire system is in fact not in total meltdown. If an area is without an up to date plan, with a severe unmet housing need, with need for affordable housing and for sites for self build homes, planning permission may be granted even if the land is, horror of horrors, politicians look away, green belt. My firm Town (well, my colleague Paul Arnett) was pleased to play at least a small role in the appeal as planning solicitors for the appellant, negotiating a section 106 agreement with the St Albans and Welwyn Hatfield councils that secured a commitment that 45% of the 100 homes proposed would be affordable housing and 10% would be self-build, delivering a strategy first formulated by Chris Young QC and developed and implemented at the inquiry itself by Zack Simons (who kindly brought us onto the team). Russell Gray at Woods Hardwick was the lead planning witness and coordinated the team.
Inspector Christa Masters determined that the following were “very special circumstances” that justified inappropriate development in the green belt:
⁃ provision of market housing
“I am aware of the Written Ministerial Statement of December 2015 which indicates that unmet need is unlikely to clearly outweigh harm to Green Belt and any other harm so as to establish very special circumstances. However, in common with the appeal decision referred to, I note that this provision has not been incorporated within the Framework which has subsequently been updated and similar guidance within the Planning Practice Guidance has been removed. I can therefore see no reason to give this anything other than little weight as a material consideration.
It is common ground that neither SADC or WHBC can demonstrate a five year supply of deliverable homes. Whilst there is disagreement between the parties regarding the extent of this shortfall, the parties also agreed that this is not a matter upon which the appeals would turn. I agree with this position. Even taking the Councils supply positions of WHBC 2.58 years and SADC at 2.4 years, the position is a bleak one and the shortfall in both local authorities is considerable and significant.
There is therefore no dispute that given the existing position in both local authority areas, the delivery of housing represents a benefit. Even if the site is not developed within the timeframe envisaged by the appellant, and I can see no compelling reason this would not be achieved, it would nevertheless, when delivered, positively boost the supply within both local authority areas. From the evidence presented in relation to the emerging planning policy position for both authorities, this is not a position on which I would envisage there would be any marked improvement on in the short to medium term. I afford very substantial weight to the provision of market housing which would make a positive contribution to the supply of market housing in both local authority areas.”
⁃ provision of self-build
“In common with both market housing and affordable housing, the situation in the context of provision of sites and past completions is a particularly poor one. To conclude, I am of the view that the provision of 10 self build service plots at the appeal site will make a positive contribution to the supply of self build plots in both local planning authority areas. I am attaching substantial weight to this element of housing supply.”
⁃ provision of affordable housing
“The uncontested evidence presented by the appellant on affordable housing for both local authorities illustrates some serious shortcomings in terms of past delivery trends. In relation to WHBC, the affordable housing delivery which has taken place since 2015/16 is equivalent to a rate of 23 homes per annum. The appellant calculates that the shortfall stands in the region of 4000 net affordable homes since the 2017 SHMA Update, a 97% shortfall in affordable housing delivery. If the shortfall is to be addressed within the next 5 years, it would required the delivery of 1397 affordable homes per annum. In SADC, the position is equally as serious. Since the period 2012/13, a total of 244 net affordable homes have been delivered at an average of 35 net dwellings per annum. Again, this equates to a shortfall also in the region of 4000 dwellings (94%) which, if to be addressed in the next 5 years, would require the delivery of 1185 affordable dwellings per annum.
The persistent under delivery of affordable housing in both local authority areas presents a critical situation. Taking into account the extremely acute affordable housing position in both SADC and WHBC, I attach very substantial weight to the delivery of up to 45 affordable homes in this location in favour of the proposals.”
More decisions such as Colney Heath are inevitable where authorities, admittedly struggling at times with a sclerotic local plans system, fail to deliver, which of course makes this scaremongering about a new planning system so nonsensical.
Topically, at 6pm this Tuesday 22 June our Clubhouse Planning Law, Unplanned theme is “How can we build enough, affordable, housing?”. Our special guests are Chris Young QC, Nick Walkley (ex Homes England chief executive), Claire Dickinson (director, Quod) and Ric Frankland (founder, wudl.). Please join us. A free link to the app and event is here.
Certificates of lawfulness are very useful, but care is still needed, as two recent cases illustrate.
But first, to explain about the two types of certificate provided for under the Town and Country Planning Act 1990 and the consequent jargon about CLEUDs and CLOPUDs.
The “certificate of lawfulness of existing use or development” (“CLEUD”) procedure, under section 191 of the 1990 Act:
“(1) If any person wishes to ascertain whether—
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.”
“(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”
“(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.”
The “certificate of lawfulness of proposed use or development” (“CLOPUD”) procedure, under section 192 of the 1990 Act:
“(1) If any person wishes to ascertain whether—
(a) any proposed use of buildings or other land; or
(b) any operations proposed to be carried out in, on, over or under land,
would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.”
“(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”
“(4) The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness.”
Section 193 (7) “A local planning authority may revoke a certificate under either of those sections if, on the application for the certificate—
(a) a statement was made or document used which was false in a material particular; or
(b) any material information was withheld.”
There is discussion about the distinctions between the two procedures, CLEUD and CLOPUD, in the Government of the Republic of France v Royal Borough of Kensington & Chelsea (Court of Appeal, 12 June 2017) but basically a CLEUD certifies that the development that has already taken place was lawful (i.e. had the benefit of any necessary planning permission) and a CLOPUD certifies that proposed development would be lawful (i.e. would not require any further planning permission).
Either certificate may be revoked by a local planning authority if it was granted on the basis of false information or if material information was withheld. CLOPUDs carry the additional risk that they may no longer be able to be relied upon as determinative of lawfulness if “there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness”.
R (Ocado Retail Limited) v London Borough of Islington (Holgate J, 7 June 2021) concerned the revocation by Islington Council of a CLEUD granted on 26 April 2019 to Telereal Trillium. The effect of the CLEUD was to certify that four of Telereal’s units on an industrial date were in lawful use for storage or distribution purposes, given that they been used for those purposes for at least the last ten years in breach of a condition on a previous planning permission. As is usually the case, the certificate application had been determined without public consultation and by delegated powers. Only when Ocado then made a planning application for works to the property so as to be able to use it as one of their distribution facilities did local residents find out that the certificate had been issued. They provided information to the council which caused it to make the revocation order, relying on the following reasons set out in an officer’s report:
“(i) Telereal’s application had relied on units A-D as “four interlinked units” forming a single planning unit, without mentioning a lack of interconnection between units B and C (paras. 11, 13 and 19); (ii) Telereal had not referred to a statement in the 2011 planning application that units C-D were unused at that time and, being surplus to requirements, had been marketed since 2006 as a separate unit. Telereal had not produced photographs taken in 2011 showing the empty units. This information contrasted with the false statement in the application that between 1992 and 2013 units A-D had been fully operational as a warehouse and also with the reliance placed upon photographs taken in 2006 produced by Mr. Molony. This was not a case where units had simply not been used to capacity (paras. 11, 17 and 18); (iii) The statutory declaration had been false in stating that since 1992 the whole site had been in use as a warehousing/storage depot, that the use had been continuous throughout, and that the photographs submitted were “typical of the uses” (para. 18); (iv) The statutory declaration had withheld the fact that Mr. Molony, who was professing to give first-hand evidence, had not visited the site during Royal Mail’s lease and so could not attest to its use during that period (para.18); (v) The application had failed to refer to Royal Mail ceasing to use the premises by, at the latest, 2015 (paras. 11 and 17); (vi) The application and the decision in 2019 had proceeded on the incorrect legal basis that the issue was whether there had been a 10-year period of continuous use in breach of condition at any time in the past, without that lawful use being subsequently abandoned or suspended. Instead, the law had been correctly stated in Ellis (para.22). In any event, even applying “the wrong legal tests” relied upon by Telereal, the applicant had been required to provide an accurate factual account of the use over time. The false statements and withholding of information were still material to that issue (para.23); (vii) The false assertion about the interlinked nature of units A-D, as well as the lack of use and the separate marketing of units C and D, were relevant to the identification of the correct planning unit (para.28); (viii) On the exercise of the discretion to revoke the CLEUD, the legislation assumes the provision of “correct and complete material information.” Had the false statements not been made and/or material information withheld, Islington “would have been alerted to the need to carry out further investigations in particular as to the planning unit” and “could have come to a different decision” (para.8).
Ocado challenged the revocation by way of judicial review on a series of grounds, a number of which raise interesting and difficult planning law issues, but for the purposes of this blog post it is sufficient to say that the claim failed. Holgate J held that the council was within its powers in deciding to revoke the certificate on the basis of applying the test in section 193 (7).
It is an important judgment for anyone dealing with certificate applications, with some helpful judicial pointers.
As to the drafting of a statutory declaration in support of a certificate application:
“Care needs to be taken in the drafting of any statutory declaration in support of an application for a certificate under s.191 (or s.192). Such a document is intended to have a formal and solemn status in a non-judicial process where oaths are not administered. It is an offence for a person knowingly and wilfully to make a statutory declaration containing a statement which is false in a material particular (s.5 of the Perjury Act 1911). This offence is “triable either way” and so there is no specific time limit on the bringing of a prosecution. Whether or not a statutory declaration is used to provide evidence to a local planning authority, s.194 makes it an offence for a person, for the purposes of obtaining a decision on an application under s.191 or s.192, to make a statement knowingly or recklessly which is false or misleading in a material particular or, with an intent to deceive, to use any document which is materially false or misleading or to withhold material information. In s.194(3) Parliament has expressly disapplied the normal 6-month time limit in s.127 of the Magistrates’ Courts Act 1980 for the bringing of a prosecution in respect of a summary only offence. Section 194(3) is all of a piece with the power of revocation in s.193(7), which is exercisable at any time after the grant of a CLEUD.
To enable an authority to assess the weight to be placed upon a statutory declaration or witness statement, it is good practice for the author to make plain which matters are within his own personal knowledge and, unless it is obvious, how that knowledge was obtained. For each matter outside his own knowledge, he should identify the specific source relied upon. These are essentially the principles applied to witness statements in civil litigation (CPR PD32 para.18.2) and it is difficult to see why the approach should be any less rigorous in the context of s.171B where a declaration may be dealing with continuity over a long period of time.”
As to whether certificate applications should be publicised:
“It is beneficial to the quality of decision-making on s.191 applications, which deal with past events, that persons or bodies with relevant information on the grounds for seeking a CLEUD should be able to be involved, whether supporting or opposing an application. If they are not, there is potentially an increased risk of any certificate granted becoming the subject of an application for judicial review, or revocation under s.193(7), with consequential delays for a landowner wishing to rely upon that decision. If, on the other hand public participation results in the refusal of a CLEUD, the applicant is entitled to pursue the matter on appeal, where the evidence can be examined and tested.
It could be said to be unsatisfactory that whether consultation takes place should depend upon the exercise of discretion by individual planning officers, rather than there being a uniform national procedure. Similar concerns were raised by Collins J in Sumption v London Borough of Greenwich  1 P&CR 20 at . The point is illustrated by paragraph 008 of the relevant part of the National Planning Practice Guidance, which states that “it may be reasonable for a local planning authority to seek evidence from other sources e.g., parish councils or neighbours, if there is good reason to believe they may possess relevant information about the content of a specific application”. The difficulty is that an authority is unlikely to be able to identify all situations in which members of the public have something material to contribute, either on the decision whether to grant a certificate or the precise scope of any certificate.”
As to the extent of the power to revoke a certificate:
“A CLEUD or a CLOPUD may only be revoked by a local planning authority on the grounds set out in s.193(7). The power of revocation may not be used, for example, because the authority wishes to revisit the merits of the application, or has changed its mind about the findings of fact it has made or the inferences or conclusions it has drawn from the material submitted.”
As to other matters to take into account in deciding whether to revoke:
“By way of example, the local planning authority might take into account the effect of revoking the certificate on affected landowners, particularly if time has elapsed and successors in title demonstrate the harm they would suffer. In that event, it could also be relevant to consider whether a successor in title was involved in, or aware of, the application for a certificate, particularly if it intended to rely upon any certificate granted. Where a local authority has reason to conclude that material information was deliberately withheld at the application stage, or that there has been material concealment of information after the certificate was issued, those matters could be taken into account as weighing in favour of revocation. Although the planning merits of a development or a legitimised breach of condition are irrelevant to whether sub-paragraphs (a) or (b) of s.193(7) are satisfied, a local authority may have regard to that aspect when exercising its discretion whether to revoke a certificate. But it is entirely a matter for the authority whether to consider planning benefits or harm at all and, if so, to what extent, subject only to review on the grounds of irrationality.”
I mentioned the additional risk, with CLOPUDs, that they lose their effect if there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining the lawfulness of the proposed development. There was discussion about this in Croyde Area Residents Association) v North Devon District Council (Lieven J, 19 March 2021).
The case concerned an application for judicial review to quash the grant of planning permission on 27 January 2014 for the use of lodges, static caravans and touring caravans at Ruda Holiday Park, Croyde, Braunton Devon. The judge allowed such a late challenge to be brought, applying the principles in R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council (Court of Appeal, 30 April 2019) (covered in my 18 May 2019 blog post Slow Claim Coming: Limiting JRs) but much of the discussion in the case concerned a CLOPUD which was subsequently granted on appeal on 21 February 2020 once a dispute had arisen as to the extent of land which had the benefit of the planning permission, due to a mistake in the way in which the boundaries of the application had been shown (“…roughly 22 hectares of land were included within the red line which before 2014 had no permission for caravans or lodges to be stationed”).
There is an absolute statutory bar on challenging the validity of certificates granted upon appeal after six weeks but challenges can of course be brought to planning permissions granted by local planning authorities outside that six weeks period (on the principles set out in that Thornton Hall Hotel case). That was why this was just a challenge to the January 2014 permission. The land owner, represented by James Maurici QC, sought to argue that to allow a late challenge to the planning permission, as argued for by the claimant, represented by Richard Turney, would undermine the absolute bar on any legal challenge to the CLOPUD. The judge disagreed:
“I am concerned that Mr Turney’s argument does result in the undermining of the LDC, and therefore might be said to undermine the purpose of the statutory provision. However, in my view there are two answers to this. Firstly, it is clear from Challinor and from s.192(4) that the LDC does not create absolute certainty of the lawfulness of the use going forward in any event. The statute envisages that there may be a material change which removes the certified lawfulness and I see no reason why the subsequent quashing of a planning permission should not be such a material change. Secondly, the mischief that Mr Maurici relies upon can in my view be dealt with by the exercise of the court’s discretion not to quash if on the facts of the case that is the appropriate response. It would be a highly unusual, if not exceptional, situation where the court would quash a planning permission where the effect was to remove the benefit of an LDC. As I explain below, I consider this to be such an exceptional case. However, in the vast majority of cases the existence of the LDC will be an overwhelming reason not to quash the planning permission.”
So the judge assumes that the quashing of the planning permission will amount to a material change in a matter that was relevant to determining the lawfulness of the development certified in the CLOPUD. It is not clear from the judgment whether the development described in the CLOPUD had subsequently already been started – that would of course preclude the operation of section 192 (4). (NB I understand that permission to appeal to the Court of Appeal has been sought).
– Be scrupulously accurate when submitting any application for a CLEUD or CLOPUD, and do not withhold any material information. Otherwise, it may come back to bite you or your successor, by operation of section 193 (7).
⁃ In relation to CLOPUDs, be wary of any potential material changes that may come to undermine your certificate. You are at risk until “the use is instituted or the operations are begun”.
Simon Ricketts, 12 June 2021
Personal views, et cetera
It was a busy Clubhouse Planning Law Unplanned week! Many of you will have tuned into our session on Tuesday in relation to the Lichfields Taking Stock report and/or Thursday’s event arranged at about eight hours’ notice when Duncan Field and Zack Simons led a session on the HCLG Committee’s report on the future of the planning system. This Tuesday 15 June at 6pm we have another amazing session, this time about starting new consultancies, firms and practices, with a series of founders’ stories, including Roger Hepher (hgh Consulting), Paula Carney (CarneySweeney), Kelly Ryder (The Planning Lab), Mark Gimingham (i-Transport), Claire Dickinson (Quod), Rachel Naylor & Abbey Musker (Trium Environmental Consulting LLP ) and tax specialist Mitch Young (Fusion Consulting Ltd). Join us! Invite to app and event here.
I tweeted that yesterday was the 5th anniversary of my first simonicity blog post. 273 posts later and 496,000 words (War and Peace = 587,000 words) and to what effect?
As I also said, it can be deflating to look back. So many posts expressing frustration about the same topics, yes obviously CIL, but also the recurring debates as to how to address the country’s housing crisis and as to what the obstacles are: is it the planning system or are other factors at play? Something Must Be Done. But what?
“Paragraphs 129 to 139 of the report’s section on Planning Reform set out the “criticism made of the large house builders…that they hold land suitable and with permission for building, yet build at a slow pace and thus maximise the profit from each development”.
The conclusion is arrived at:
“139.We recommend that local authorities are granted the power to levy council tax on developments that are not completed within a set time period. This time period should be negotiated when planning consent is sought and be varied according to the size and complexity of a development. To ensure that the local authority also has an incentive to accelerate the process, the clock should start to run only when the local authority has signed off all conditions and obligations“.”
The allegation that house builders hold unnecessarily large land banks, going slow to maximise profits, was considered in detail by Oliver Letwin in his 2018 review. Incidentally, a constant theme of my blog posts over the last five years has been reviews commissioned by the Government the recommendations of which it then ignores – my first ever post, on 3 June 2016, was about the recommendations of the CIL independent working group (sensible recommendations, ignored by Government) – and Oliver Letwin’s recommendations in his final report (summarised in my 3 November 2018 blog post Oliver’s Twist: Letwin’s Proposals For Large Housing Sites) were of course similarly ignored, but perhaps the findings in his earlier interim report (June 2018) were more interesting, where he rejects that land banking allegation:
“5.40 It is of course true that, although the land market can be highly volatile, land (unlike most assets) does not depreciate, and has generally tended to increase in value across the cycle, and has a ‘real option’ value. By holding rights over land that benefits from (or is soon likely to benefit from) some form of permission to build houses, the company which holds that land obtains a valuable ability to make profit by building on it at whatever time is thought likely to maximise the profitability of doing so. It would therefore be perfectly possible for financial investors of a certain kind to seek to make a business out of holding land as a purely speculative activity.
5.41 But I cannot find any evidence that the major house builders are financial investors of this kind. Their business models depend on generating profits out of sales of housing, rather than out of the increasing value of land holdings; and it is the profitability of the sale of housing that they are trying to protect by building only at the ‘market absorption rate’ for their products. I have heard anecdotes concerning land owners who seek to speculate in exactly this way by obtaining outline permission many years before allowing the land to have any real development upon it – and I am inclined to believe that this is a serious issue for the planning system. But it is not one that is consistent with the business model of the major house builders.”
And yet here comes the allegation again in an 8 May 2021 Local Government Association press statement: Over 1.1 million homes with planning permission waiting to be built – new LGA analysis. “The LGA is calling for councils to be given powers in a Planning Bill in the Queen’s Speech to incentivise developers to build housing more quickly. Latest figures show that 2,782,300 homes have been granted planning permission by councils since 2010/11 but over the same period only 1,627,730 have been built.”
And look at their proposal, which harks back (without reference to it) to the rejected idea in that 2016 House of Lords Economic Affairs Committee Report. They say:
“While there will be in some cases legitimate reasons as to why development has stalled, and it is recognised that there is a time lag between permission being granted and homes being built, new build completions have only increased by just over half as much in that time. The LGA, which represents councils, says this shows that planning is not the barrier to house-building and that it is the housing delivery system that needs to be reformed.
To help councils get developers building more quickly, the Queen’s Speech should bring forward legislation that enables councils to charge developers full council tax for every unbuilt development from the point the original planning permission expires.”
The wider assertions in the Local Government Association press statement that sufficient planning permissions are already being granted to achieve the Government’s target of 300,000 net additional homes a year are tackled in Lichfields subsequent report, “Taking stock: The geography of housing need, permissions and completions”, published on 1 June 2021, commissioned by the Land Promoters and Developers Federation and the Home Builders Federation. Indeed they conclude that the necessary annual figure to achieve that target is 520,000.
The report represents the first stage of their work: “Analysis of how the number of homes with planning permission relates to housing need and delivery in different parts of the country through a comparison of housing need (either as per the standard method or recently adopted local plans), planning permissions and completions at a regional and housing market area level”.
We await stages 2 and 3:
“2. Assessing how the stock of permissions relates to housebuilder pipelines, rates of build out and the number of extra sites required to meet the government’s ambition; and
3. An analysis of what happens to the stock of permissions for a number of local authority case studies. This is a more in-depth ‘deep dive’ exploration on how the stock of permissions granted is linked to the number of homes completed within a given timescale by monitoring the land supply positions across the authorities over a five year period”
It is a great shame that MHCLG has not provided any detailed methodology to support the national target of 300,000 net additional homes a year. If anything it may be an under-estimate (see the 14 January 2021 House of Commons briefing paper Tackling the under-supply of housing in England) but surely it needs underpinning to avoid any assertion that it is too high. The background to the figure is mentioned in my 10 February 2018 blog post Nothing Was Delivered – the immediate context at the time being the first meeting of then prime minister Theresa May’s “housing implementation taskforce” (always good to have a taskforce). You recall Mrs May’s promise that the housing crisis would be her “number one domestic priority”? Roll forward three years: Theresa May leads Tory revolt over push for new housing (The Times, 12 May 2021).
What has got in the way of a sensible debate as to how we might resolve this country’s housing crisis since I started this blog? Politics. What might get us out of it? Action based on robust factual analysis.
Simon Ricketts, 4 June 2021
Personal views, et cetera
This week’s Clubhouse Planning Law, Unplanned discussion examines the Lichfields Taking Stock report. We will be joined by Lichfields’ Matthew Spry , together with the LPDF’s chairman Paul Brocklehurst, Lambert Smith Hampton’s Mary-Jane O’Neill, the BPF’s Sam Bensted, Blackstock Consulting’s Joshua Carson and our brilliant usual panel. Do tune in to join the discussion, or just to listen. This is a free invitation to the app.
The Government’s First Homes announcements this week mean that we all need to understand the practicalities as to how this new form of discounted market sale housing will work and to plan around three key implementation dates.
From the guidance: “ Local plans and neighbourhood plans submitted for examination before 28 June 2021, or that have reached publication stage by 28 June 2021 and subsequently submitted for examination by 28 December 2021, will not be required to reflect the First Homes policy requirement”
(However: “Planning Inspectors should consider through the examination whether a requirement for an early update of the local plan might be appropriate.”)
28 December 2021
From the guidance: “The new First Homes policy requirement does not apply for the following:
• sites with full or outline planning permissions already in place or determined (or where a right to appeal against non-determination has arisen) before 28 December 2021”
28 March 2022
It also does not apply to “applications for full or outline planning permission where there has been significant pre-application engagement which are determined before 28 March 2022”.
So if you wish to avoid the new requirement and you are not in an area where a plan has been adopted under the transitional arrangements, you need to have submitted your application so that it will be determined (or so that that the statutory right to appeal on the basis of non-determination has arisen) by 28 December 2021 and if there is any doubt as to whether you will meet that deadline it would be prudent to have engaged in “significant pre-application engagement” such that the deadline for achieving permission is 28 March 2022.
“If an applicant wishes to amend a planning application to include First Homes which is already submitted and likely to be granted before these dates, the local planning authority should be flexible in accepting First Homes as an alternative type of tenure.
Local authorities should have flexibility to accept alternative tenure mixes for planning applications that are determined within the timescales identified above, although they should consider whether First Homes could be easily substituted for another tenure, either at 25% or a lower proportion.”
From the guidance:
“What is a First Home?
First Homes are a specific kind of discounted market sale housing and should be considered to meet the definition of ‘affordable housing’ for planning purposes. Specifically, First Homes are discounted market sale units which:
a) must be discounted by a minimum of 30% against the market value;
b) are sold to a person or persons meeting the First Homes eligibility criteria […];
c) on their first sale, will have a restriction registered on the title at HM Land Registry to ensure this discount (as a percentage of current market value) and certain other restrictions are passed on at each subsequent title transfer; and,
d) after the discount has been applied, the first sale must be at a price no higher than £250,000 (or £420,000 in Greater London).
First Homes are the government’s preferred discounted market tenure and should account for at least 25% of all affordable housing units delivered by developers through planning obligations.”
“Who is eligible to purchase a First Home?
A purchaser (or, if a joint purchase, all the purchasers) of a First Home should be a first-time buyer as defined in paragraph 6 of schedule 6ZA of the Finance Act 2003 for the purposes of Stamp Duty Relief for first-time buyers.
Purchasers of First Homes, whether individuals, couples or group purchasers, should have a combined annual household income not exceeding £80,000 (or £90,000 in Greater London) in the tax year immediately preceding the year of purchase.
A purchaser of a First Home should have a mortgage or home purchase plan (if required to comply with Islamic law) to fund a minimum of 50% of the discounted purchase price.
These national standard criteria should also apply at all future sales of a First Home.”
“How should the remaining 75% of affordable housing be secured through developer contributions?
Once a minimum of 25% of First Homes has been accounted for, social rent should be delivered in the same percentage as set out in the local plan. The remainder of the affordable housing tenures should be delivered in line with the proportions set out in the local plan policy.
For example, if a local plan policy requires an affordable housing mix of 20% shared ownership units, 40% affordable rent units and 40% social rent units, a planning application compliant with national policy would deliver an affordable housing tenure mix of 25% First Homes and 40% social rent. The remainder (35%) would be split in line with the ratio set out in the local plan policy, which is 40% affordable rent to 20% shared ownership, or 2:1. 35% split in this way results in 12% shared ownership; and 23% affordable rent.
In another example, if a local plan policy requires 80% of units to be shared ownership and 20% to be social rent, a policy compliant application would deliver 25% First Homes units, 20% social rent and 55% shared ownership.
If a local authority has an up-to-date policy on cash contributions in lieu of onsite contributions, then a planning application compliant with national policy will align with this approach.”
The requirement will be secured by our trusty friend, the section 106 agreement (or unilateral undertaking). The guidance states: “The government will publish template planning obligations for this purpose, which the local planning authority can use as a basis for agreements prepared locally.” A workable template (stress the word “workable”) would be very useful indeed.
How will this policy mechanism work across very different housing market areas across the country and what might be the unintended consequences? I recommend an excellent Lichfields blog post, First Homes: dicing with the discount (Rachel Clements and Bethan Haynes, 27 May 2021).
They ask where can First Homes potentially have the biggest impact?
“First Homes have the potential to have the greatest impact in areas where first-time buyers are currently priced out of the open market (at the entry-level) but where First Homes would be within reach, when the minimum 30% discount is applied. We estimate this represents around one in five authorities in England – around 63 in total.”
Will it avoid the problems that caused the previous Starter Homes concept to fail (e.g see my 29 February 2020 blog post Starter Homes Were A Non Starter – What Future For First Homes?)? What do we make of this continuing political decision to intervene in the market in the interests of encouraging home ownership at the expense (where viability is impacted) of affordable housing for rent, for those on a lower rung of the housing ladder?
There is plenty more to say on the subject, for instance the new opportunity arising to bring forward First Homes exception sites on allocated land outside the green belt or designated rural areas. But for now, I suspect that developers and local planning authorities alike will be wanting to do some basic number-crunching and to bear those three deadlines in mind.
Simon Ricketts, 28 May 2021
Personal views, et cetera
This Tuesday evening’s Planning Law, Unplanned Clubhouse session (6pm, 1 June) takes on a more general subject: “Has work taken over your life? Life hacks, work hacks”. Do come along and share your views, or just listen to the chat. An invitation to the app is here.
“Andrew Wilson, a curator at Tate, wrote on Twitter that this is “another example of the normalisation of money-grabbing philistinism that this government promotes”. Writing on his blog, Charles Saumarez-Smith, the former chief executive of the Royal Academy of Arts in London, says that the government “is play-acting, [putting] a superficial veneer over rather brutal capitalists, who are happy to use British history for their own purposes… a hotel for foreign tourists is more important than a bit of living history”.
Saumarez-Smith also criticises the heritage body Historic England, which backed the boutique hotel project, saying: “I hope that the Commissioners of Historic England, who have so conspicuously failed in their public duty, might consider what went wrong: why they did nothing; why they have allowed this to happen in such a conspicuously supine way.” Historic England said in a statement: “We believe that the proposals have the makings of a successful heritage regeneration scheme, and would provide a sustainable future for this important group of listed buildings.”
“The housing secretary has ordered a review of planners’ approach to heritage after a decision was made to allow a 450-year-old bell foundry that cast Big Ben to be turned into a boutique hotel.”
Away from the traditional media, there has inevitably also been much tweeting and perhaps it is apt that the Secretary of State took to twitter to announce that review, the announcement so far taking the form just of the final sentence of this thread of tweets:
The one thing you get from the newspaper headlines is that the foundry is being turned into a hotel. Isn’t it interesting/worrying how these stories take on a life of their own, reduced to compelling headlines.? Of course, it’s inevitable – who has the time to read even the Secretary of State’s 13 May 2021 decision letter and accompanying inspector’s report, let alone any of the underlying documents? The foundry is not being turned into a hotel.
To take a step back…
First, what was the site? As described by the inspector:
“2.2 The entry in the statutory list provides a great deal of information about theWhitechapel (or what it terms the Church) Bell Foundry. It suffices to set out here that it is a Grade II* listed building. However, the situation is complicated, to a degree, by the fact that parts of the overall foundry site are specifically excluded from the listing.
2.3 Put simply, the application site has three main elements. Firstly, there is the front range (including 32 and 34 Whitechapel Road and 2 Fieldgate Street). Secondly, behind that front range, lie the courtyard and old stables and thirdly, beyond those, are the old foundry and former cottages. Together, these elements comprise the Grade II* listed building.
2.4 Beyond that lies what has been termed the 1980s building. This building is specifically excluded from the listing. Beyond and adjacent to the 1980s building are two areas of car park and hardstanding which were not part of the Whitechapel Bell Foundry but are parcels of land that have been assembled by the applicant.”
The foundry use had ceased in 2017.
What are the proposals by the applicant, Raycliff Whitechapel LLP? Again, as described by the inspector:
“4.1 In simple terms, there are two main components of the proposals that can loosely be classified as the listed building and the new building. In terms of the listed building itself, it would play host to a modern foundry, interpretation spaces, a café and events space, workspaces and workshops. The proposed uses and improved circulation are intended to allow the maximum number of people to access and experience the building.
4.2 The new building would be home to a hotel, with 103 bedrooms, a restaurant, a bar, and a roof-top terrace and pool, and a workspace at ground floor level.
4.3 The ground floor across both the listed building and the new building would be open to the public, with the foundry, interpretation spaces and the café in the historic building, the restaurant bar and hotel reception in the new building. The main entrance to the buildings would be common to both.”
Tower Hamlets Council resolved to grant planning permission and listed building consent on the advice of its officers on 14 November 2019 and the Secretary of State then issued a holding direction on 2 December 2019.
The applications were called in by the Secretary of State on January 2020. There was an early hiccup in the process when housing and planning minister Chris Pincher mistakenly told MPs in a debate on 11 June 2020 (seeking to defend the Secretary of State’s position in relation to another scheme in Tower Hamlets, Westferry – now incidentally back at inquiry for redetermination but that’s another story):
“I am obliged to the hon. Gentleman for his question. As I said, it is not unusual for Ministers to look at and call in significant applications, and for them to come to a different conclusion from that of the Planning Inspectorate. My right hon. Friend’s reasons for his decision were clearly outlined in his decision letter of 14 January. He makes it clear that one reason for his decision to allow the application was the very significant number of homes that were going to be built as a result of it, including affordable homes. I might say in response to the hon. Gentleman that in the same week, in an application to the same authority, my right hon. Friend came to a very different conclusion when he refused a planning application made by and supported by the local authority to demolish the Whitechapel Bell Foundry, the one that created Big Ben and the Liberty bell. The local authority, the well-known tribunes of the people in Tower Hamlets, wanted to demolish it and build a luxury boutique hotel. My right hon. Friend will always come down on an application based on its merits and in the interests of the people. That is what he did on this occasion and that is what he will always do.”
He later apologised for his mistake – it had only been called in by the Secretary of State, not refused, but an unhelpfully politically charged note in the process for sure.
An inquiry took place, which opened on 6 October 2020 and sat for nine days. The main objectors to the proposals were a group known as Re-Form Heritage, which appeared at the inquiry as a Rule 6 Party, represented by Rupert Warren QC and Matthew Dale-Harris, who called four witnesses including professional evidence on heritage and planning – no “David and Goliath” contest this). Tower Hamlets Council was in support of the proposals (Alexander Booth QC appearing), as was Historic England. David Elvin QC appeared for the applicant.
(Thanks to my Town Legal colleague Tom Brooks for much of the following summary, although any views expressed are mine).
Re-Form argued that:
– Raycliff’s proposals were unacceptable in heritage terms, and would cause, in the language of the NPPF (paras 193-196), “substantial harm” to the significance of the listed building; and
– Re-Form’s alternative vision for the future of the site, as a working foundry for casting both bells and other artistic commissions, was less harmful, so the applications should be refused.
Raycliff’s position was that only a low level of less than substantial harm would be caused by the proposals, that this would be outweighed by their public benefits (heritage and otherwise), and that Re-Form’s idea was undeliverable and unviable.
The inspector concluded that the listed building was “of profound significance” (IR 12.14), noting that all agreed there were elements of the proposals that would cause harm to that significance (IR 12.17), whether substantial (leading to NPPF 194-195) or less than substantial (leading to NPPF 196).
As spelt out by the inspector: the end of the bell foundry business in 2017 was unconnected to the present proposals (“Traditional bell founding on the site…ended for economic reasons mainly to do with a drop in demand for tower bells, and the difficulties, both operational and environmental, the business encountered in operating from a Central London address”); and therefore the starting point for the assessment was a “largely vacant Grade II* listed building that formerly housed traditional bell founding…It is not a situation where a traditional bell foundry is to be closed in order to be replaced by something else”. IR 12.23).
Following the inspector’s conclusion that the proposals cannot be taken to cause harm to the listed building as a result of the closure of the business, the only harm possible was any arising from the physical works now proposed. No harm was found to the other heritage asset in this case, the Whitechapel Conservation Area, and that the hotel extension was said by the inspector to be a “subtle and pleasingly understated” addition (IR 12.52).
The inspector concluded that the harm to the listed building “would be very much at the lower end of the scale of less than substantial” (IR 12.44), would be outweighed by the public benefits of the scheme (albeit with some non-consequential discussion as to how this balancing should be carried out – see below), and so planning permission and listed building consent should be granted.
This advice was accepted by the Secretary of State.
There are some interesting issues arising:
– Obviously, there is no planning control whatsoever to preserve as operational the specific use that was said to be significant in heritage terms – as a “large church bell foundry” (IR 8.46) – clearly the planning system cannot require a business to continue to operate or indeed to prevent other industrial uses of the site, or uses which may be possible by way of permitted development. The Secretary of State concluded that “the end of traditional bell making on the site has…nothing whatsoever to do with the proposals at issue”.
– Re-Form argued that that Raycliff needed to demonstrate that its scheme was the “optimum viable use” of the site (following the reference in NPPF 196). This suggestion was dismissed by the inspector: optimum viable use is an example of the public benefits that are to be weighed against harm in the balancing process, but in such “a situation where the heritage and other public benefits of the proposals so far outweigh the harm they would cause, it appears to me unnecessary” (IR 12.82).
– The inspector followed Bramshill at first instance (Waksman J, 16 December 2019) that not much detail of an alternative scheme for a heritage asset is needed for that scheme to be a relevant consideration. Nonetheless, he found Re-Form’s scheme to be “somewhat sketchy, and lacking in detail [with…] far too many uncertainties” (IR 12.92). Moreover, even if it had been shown to be viable, “the mere presence of an alternative scheme offers no justification to resist a proposal that is otherwise acceptable, and statute and policy compliant” (IR 12.77).
– One of the more surprising aspects of the decision is the inspector going out of his way to endorse the so-called “internal heritage balance” method of assessing heritage harm following Palmer (Court of Appeal, 4 November 2016), despite numerous subsequent judgments emphasising that such an approach should be used with caution (see recently the Court of Appeal judgment on Bramshill which I covered in my 12 March 2021 post).
While the inspector was at pains to make his view clear that such an “internal heritage balance” approach was “perfectly legitimate”, and this was endorsed in the Secretary of State’s letter, it actually made no difference to the conclusion reached.
The inspector thus carried out an initial balancing exercise of heritage harm against heritage benefits, prior to the NPPF 196 test considering the wider public benefits. In doing so, he found that “there would be no harm caused to the special architectural and historic interest of the listed building […and] no need to consider paragraphs 195 or 196 because considered in the round, the proposals would cause no harm to the significance of the designated heritage asset affected” (IR 12.75-12.76).
What the inspector had done, though, was exactly the same as carrying out the NPPF 196 test, and simply stopping after the heritage benefits because the scales were already tipped in their favour, and so there was no need to include the wider public benefits too. In fact, the inspector then carried out the NPPF 196 test doing this anyway (at IR 12.78-12.81), leaving it unclear as to why the “internal heritage balance” approach was taken in the first place.
It’s certainly a topical issue. In the middle of my writing this post, judgment was handed down in Juden v London Borough of Tower Hamlets (Sir Duncan Ouseley, 21 May 2021) – another social media cause celebre, the “mulberry tree” case. See discussion at paragraphs 59 to 87 on ground 3 (“inclusion of heritage benefits when assessing the level of heritage harm”).
– It is common, thanks partly to the shared application form these days, for applications for planning permission and listed building consent to share the same description of development. Unusually, in this case, the inspector sought during the inquiry to understand exactly which works should be the subject of each application, resulting in an amendment to the description for the listed building consent – a useful reminder of the proper scope of listed building consent in section 7 of the Act (for “works which would affect its character as a building of special architectural or historic interest”), and that despite their often parallel consideration by planning authorities, they are separate regimes with separate legislative and policy considerations.
Here was a proposal that was supported by Tower Hamlets officers and members, supported by Historic England, recommended for approval by an independent inspector and approved by the Secretary of State (the decision apparently taken by another minister but “on behalf of” the Secretary of State). In the meantime, commentary in social media and the broadsheet newspapers continues to attack the conclusions reached, repeating arguments that have already been rejected throughout this process.
There are plenty of participants to go at of course – the Secretary of State mentions the Planning Inspectorate (why?); Charles Saumarez-Smith (who appeared at the inquiry) alleges that Historic England “conspicuously failed in their public duty” (how?), and as always everyone has a go at the developer, without putting forward any realistic alternative proposals.
What has led to the Secretary of State’s announcement of a “review of how the Planning Inspectorate and planning policy considers and defends heritage”? An attempt to appease, without implementing substantive changes to the current system, those who wish that somehow a different decision could have been reached? Or something more fundamental? If the latter (and I’m struggling to visualise what form that might take), it needs to get hitched pretty quickly to the planning white paper bandwagon.
This week’s 6pm Tuesday 25 May #PlanningLawUnplanned Clubhouse session, provocatively titled, looks more widely at the treatment of planning issues in the media, already with a fascinating list of guest contributors in addition to our usual panel. Invitation to the app here (and, hooray, no longer limited to iphone users).