Westferry Printworks Decision: LPA Reaction Unprintable

Tower Hamlets Council’s revised CIL charging schedule came into effect on 17 January 2020, imposing borough CIL for the first time on its large allocated sites, so you will appreciate its double disappointment at the Secretary of State allowing the Westferry Printworks site appeal, against the inquiry inspector’s recommendations, in a decision letter dated 14 January 2020. The CIL figure could have been up to £50m, according to evidence given at the inquiry on behalf of the appellant.

The scheme is for a “comprehensive mixed-use redevelopment comprising 1,524 residential units (Class C3), shops, offices, flexible workspaces, financial and professional services, restaurants and cafes, drinking establishments (Classes B1/A1/A2/A3/A4), community uses (Class D1), car and cycle basement parking, associated landscaping, new public realm and all other necessary enabling works” at Westferry Road on the Isle of Dogs.

There has been a furious response from the council. At a full council meeting the following day, 15 January 2020, a resolution was passed to examine “all available options, including a judicial review“. The East London Advertiser reports Mayor John Biggs as saying:

It is a massively tall and dense development. Something of 40 floors on the island is an outrage. By making the decision on Tuesday we also lose a massive sum of money. This development will place a huge impact on the island. It is a scandal and outrageous. We will be doing everything in our power [including] seeking a judicial review.”

The potential impact of borough CIL on the viability of the proposals obviously had been raised by the appellant as a potentially relevant matter, given that it would go to viability. Unsurprisingly, the appellant had sought to include a mechanism within its section 106 agreement for a potential reduction in affordable housing should the Secretary of State’s decision letter be issued after the revised CIL charging schedule had been adopted, a proposal which both the inspector and Secretary of State rejected.

The timing of the decision letter meant that this issue went away – it would have been an interesting one to test, given that the situation often arises where an applicant or appellant is in the hands of the decision maker as to whether permission will be issued before a revised CIL charging schedule comes into effect and why shouldn’t a section 106 agreement mechanism to neutralise the effect be appropriate where the viability appraisal has not taken the potential additional CIL liability into account?

The decision letter was plainly ready to be issued, why should it have been held back?

The appeal had been lodged in relation to an application submitted by Westferry Developments Limited (the owner of the site is Northern & Shell, the development manager is Mace) on 24 July 2018. The appeal was recovered for the Secretary of State’s own determination on 10 April 2019. Tower Hamlets asked for more time to formulate their position in relation to the proposals but this was refused by the Secretary of State, as recorded in a report to a meeting of Tower Hamlets’ strategic development committee on 14 May 2019:

This report is seeking the authority of the committee for officers to defend an appeal which has been submitted to the Secretary of State by the developer. The Secretary of State has imposed a timetable which requires that this report is considered by the Committee on 14th May 2019 in time for the council to submit a Statement of Case by 22nd May 2019 in order to avoid breaching the imposed timetable and making the authority liable for costs for unreasonable behaviour. As the report had not been written when the timetable was imposed, the Council asked Secretary of State to review the timetable and he has declined. These are the special circumstances justifying the urgency.”

The previous Mayor of London (whatever happened to him?) had intervened and granted planning permission for an earlier scheme for the site in 2016 for “comprehensive mixed use redevelopment of 118,738 m2 including buildings ranging from 2-30 storeys (tallest 110 m AOD) comprising: a secondary school, 722 residential units, retail use, restaurant and cafe and drinking establishment uses, office and financial and professional services uses, community uses, car and cycle basement parking, associated landscaping and new public realm“. That planning permission has been implemented by the demolition of the printworks and works to construct a new basement.

The latest application had been on the basis of an offer of 35% affordable housing, although not policy compliant due to the proposed tenure mix, justified by reference to viability appraisal. When the appeal was submitted, unsurprisingly, given that on appeal the decision maker would expect an updated viability appraisal, that offer was withdrawn and at the time of the 14 May 2019 committee meeting there was just an indication that a revised viability assessment would be submitted and that the revised offer would be less than 35%.

The committee resolved that the proposals would have been refused on the following grounds:

⁃ Townscape and visual impact

⁃ Wind Impact on the Docklands Sailing Centre

⁃ Affordable housing – amount

⁃ Housing mix and choice

The inquiry started on 7 August 2019. This was an important appeal for the council, as can be seen from this July 2019 Facebook post from a councillor, encouraging opposition to the proposals:

In the evidence for the inquiry, the affordable housing offer had been reduced to 21% on the basis of an updated viability assessment.

In this summary that follows I am plagiarising some of an internal note prepared by my Town partner Louise Samuel (into which I may now introduce errors, all mine):

• The inspector accepted that the existing permission should be treated as a fallback, which formed an appropriate basis for assessing an alternative use value for the purposes of arriving at a benchmark land value.

• However, the inspector did not agree with how the appellant had calculated the benchmark land value (see IR 507 on for BLV discussion) and considered that the 21% offer was unlikely to be the maximum reasonable provision for the site. He did not, however, set what the maximum reasonable provision would be.

• Whilst Tower Hamlets criticised the appellant for resiling from its previous 35% offer, the Inspector notes that it was clear that the appellant was responding to the Mayor’s fast-track approach (which requires at least 35%) and so took a commercial view despite the fact that it was not supported by the viability assessment at the time. He concluded that this was not, in itself, a reason to reduce the weight to be attached to the Assessment before him (see para 530 of the IR).

• The Inspector’s view was that the consented scheme provided many of the same benefits but without causing the same harm to heritage assets. Because of the consented fallback, the only benefits that carried weight were those in addition to the consented position.

• The Secretary of State agreed that it is likely that the scheme could provide more affordable housing (“21% does not…represent the maximum reasonable amount of affordable housing”) but still considered that the additional benefits (compared to the consented fallback scheme) of: (a) housing (802 more units of which 142 would be affordable, with a policy compliant tenure split of 70% affordable rent 30% intermediate); and (b) employment during construction, were enough to grant permission. The Secretary of State gave these benefits significant weight whereas the Inspector had attached moderate weight to these benefits. The Secretary of State took into account that “there is no evidence before him of any other scheme which might come forward or what level of affordable housing might be delivered by any such scheme”.

• The Secretary of State considered these benefits to be enough to outweigh harm to important heritage assets (Grade I Old Royal Naval College; Grade I Tower Bridge; and the Greenwich World Heritage Site).

• The section 106 agreement included both an early and late stage viability review, which means that the percentage of affordable housing may increase, albeit the Inspector criticised the limited effectiveness of these.

An interesting decision in that we would need to go back almost two years to find another recovered appeal for housing development which the Secretary of State has allowed in London. Contrast for instance with the 19 July 2019 Chiswick Curve decision letter, appeal dismissed by the Secretary of State against his inspector’s recommendations, where he gave only moderate weight to the provision of 327 dwellings, whereas the Inspector had given significant weight to the housing offer (the decision has been challenged by the appellant – Louise and colleagues acting), and contrast with for instance the 1 Cambridge Heath Road 10 June 2019 decision letter, again an appeal dismissed against his inspector’s recommendations.

Much to chew over for those promoting, or otherwise engaged with, major projects in London.

Simon Ricketts, 18 January 2020

Personal views, et cetera

 

Image courtesy of Westferry Printworks website

Feels Like We Only Go Backwards: Wealden, South Oxfordshire & Eastleigh Local Plans

It feels like I only go backwards, baby

Every part of me says, “Go ahead”

I got my hopes up again, oh no, not again

Feels like we only go backwards, darling

The seed of all this indecision isn’t me, oh no

‘Cause I decided long ago

But that’s the way it seems to go

When trying so hard to get to something real, it feels

(Tame Impala)

An Australian band singing about English local plans?

Wealden local plan

First the Sevenoaks plan was knocked back on failure of the duty to cooperate (see my 26 October 2019 blog post More Plans Grounded: West Of England; Sevenoaks; London), now Wealden.

As always, it is interesting to start with the “taking the moral high ground” toned press statement.

Throughout the Local Plan process, we have always tried to find the right balance between the need for growth in housing and employment land, and the need to protect our unique environment,” said Councillor Bob Standley, Leader of Wealden District Council.

“Our approach to protect the environment has been supported by our Councillors and many of our residents.

“Unfortunately, the Planning Inspector, following last summer’s Examination in Public of our Local Plan, has found that we put too great an emphasis on protecting the environment and that we need to do more to build houses in Wealden which our neighbouring councils cannot accommodate.

“Regrettably, this will inevitably have impacts on our communities. We acknowledge that there is already significant pressure on infrastructure; such as roads, doctors, dentists, schools and sports facilities. A requirement to build more homes will only have a greater impact on those facilities, which will require further investment.”

(Wealden District Council’s 6 January 2020 press release).

It is interesting then to turn to the forensic dissection of the council’s approach, its multiple failings laid bare in the inspector’s 20 December 2019 letter.

I wrote about Wealden’s previous run-ins with Natural England, adjoining authorities and the courts, all basically about the extent that the council is entitled to rely on environmental concerns to reduce housing numbers within its district, in my 8 April 2017 blog post Heffalump Traps: The Ashdown Forest Cases.

South Oxfordshire local plan

My 12 October 2019 blog post SOx On The Run explained the background to the Government’s intervention to prevent the new Lib Dem administration at South Oxfordshire from withdrawing the plan which the previous Conservative administration had submitted for examination.

Secretary of State Robert Jenrick has now written on 6 January 2020 to the council indicating that he is considering whether to use powers to ask Oxfordshire County Council to prepare the Plan.

In this context, I would like to take this opportunity to ask you to outline by 31st January 2020, if there are any exceptional circumstances as to why you do not have a plan in place that I should take into account when I make a decision on next steps.”

Eastleigh local plan

Eastleigh Borough Council is in the middle of an examination of its submitted local plan. It has not been uncontroversial locally:

Hundreds of campaigners, along with local TV crews, converged on the Botleigh Grange Hotel yesterday morning as Action Against Destructive Development (ADD) staged a demonstration on the second day of the public examination of Eastleigh’s Council’s Local Plan.

Organisers estimated 400 hundred people had braved the rain to attend the early morning “show of strength” as residents from Eastleigh’s Northern and Winchester’s Southern parishes united in opposition to council plans to build thousands of new homes and a motorway link road in countryside just North of Bishopstoke and Fair Oak.  It was reported that so many people had turned up, some were forced to park at the Ageas bowl two miles away.”

(from Hundreds protest at Local Plan hearing Eastleigh News, 23 November 2019).

31 year old career politician Paul Holmes was elected to represent the Eastleigh constituency in the December 2019 general election, replacing fellow Conservative Mims Davies, who is now MP for mid-Sussex. Ms Davies was a long-time opponent of the (Lib Dem) council’s plans – indeed oddly (and surely contrary to convention) there are still campaigning pieces by her about Eastleigh on her official website despite now representing another constituency:

Our community must be heard. Real democracy is missing across Eastleigh in the local planning process. Our beautiful green spaces are under direct threat from the plans of the Council. We need to use brownfield land first. That is why I joined with community groups to make a strong submission to the Eastleigh Local Plan process. The Council should serve Eastleigh residents and not developers.”

Mr Holmes has picked up the reins from Ms Davies with some verve…

Indeed he asked a question about the local plan at Prime Minister’s Questions on 8 January 2020:

My right hon. Friend has always been a vocal advocate of localism, so what advice can he give to my constituents who are concerned about the local Lib Dem council’s unwanted housing plan in Eastleigh, which would lead to even more overdevelopment without securing the vital infrastructure that Eastleigh needs?

The Prime Minister’s response:

I am not surprised by what my hon. Friend says about the cavalier behaviour of the Lib Dem council in Eastleigh. We will ensure that, in so far as we need to build many more homes, which we do, we will supply the infrastructure necessary and do it on brownfield sites.”

(Sigh, that brownfield sites reference. That’s what they all say, isn’t it? What did Mr Holmes do on the very first day in his new job? He objected to proposed development on just one such brownfield site, the GE Aviation site in Hamble Lane, and the application was duly refused by members in spite of officers’ recommendation to approve).

I wrote about other examples of MPs intervening in local plan processes in my 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism.

Let’s leave local plan examinations to the examiners!

Simon Ricketts, 11 January 2020

Personal views, et cetera

Image from Tame Impala video for Feels Like We Only Go Backwards.

Elephant, Dove, Old Oak, RICS

I thought I would start 2020 by trying to establish some common ground, before then mentioning what happened shortly before Christmas in relation to the Elephant & Castle and Old Oak projects, both controversial in different ways. The questions are long but I hope that the answers are short.

Do we all agree that…

1. more housing is needed for those who cannot afford homes that are being built by the private sector in their local area, even when these are required to be sold or let at significant discounts to market rates – and that what we call that housing (eg social housing/socially rented) and the nature of the body that delivers and manages it (housing associations or other registered providers, local authorities) are secondary issues?

2. the current system of seeking to require developers to deliver that housing (whoever then manages it) is not working and is hugely inefficient, in that: (1) local policy expectations set out in local plans are often not met, due to those expectations being determined not to be viable – leading to prolonged negotiations and local objection (2) the complexities and multitude of inputs to any negotiated section 106 affordable housing package, often including intricate mechanisms to provide for later reviews of the viability position, are at best a costly distraction for all parties (needing to be tooled up with valuation and QS professionals) and at worst are prone to lead to huge delays and, over time, the prospect of renegotiation where the negotiated outcome is not sufficiently attractive to funders, or where (almost inevitably) circumstances have changed during the long course of the process?

3. it is in the public interest for communities within developments to be socially and economically diverse?

4. the system worked more easily when much more Government money was available to support affordable housing by way of grant (without grant obviously a requirement to deliver social housing has a huge impact on the viability of a scheme) and that we need to get back to a system that (1) is simple (2) delivers housing that is truly affordable for those who need it (3) is efficient and (4) does not delay development more generally?

5. government (ie our) money needs to be spent where it can have most beneficial impact and is most needed?

There has been a lot of government tinkering but don’t we have to get back to those fundamentals? I’m not sure that the Government’s promised Social Housing White Paper is going to get us there, given the absence of relevant detail about affordable housing in the Conservatives’ manifesto – talk about owning first homes is a world away from the very different challenges faced by so many.

I’m sorry to be a cracked record – see my 28 May 2017 blog post Affordable Housing Tax or 4 November 2017 blog post Viability Assessment Is Not A Loophole, It’s A Noose. We could look at the idea of expanding CIL to include a social housing contribution, so that local authorities can deliver or procure it, with the option of provision on site counting as works in kind? But I’ve previously been against further rolling out another complex and inefficient regime, ie CIL, and most authorities, hollowed out and stretched as they are, are not currently in any position to deliver or procure social housing at scale. Instead, personally I would simply prefer that we go back to the old way – grants to providers so as to reduce the impact on viability for the developer of providing social housing.

In the meantime, we have to make the current system work. My 8 June 2019 blog post The Bottom Line: Updates On CIL And Viability reported on the RICS professional statement on financial viability in planning, which came into effect on 1 September 2019, and mentioned the revisions made to viability passages of the PPG by the Government on 9 May 2019, reflecting changes to the NPPF that seek to ensure, amongst other things, that detailed viability examination takes place at plan-making stage rather than when applications come forward.

The RICS professional statement sets out the professional responsibilities of the surveyor in the viability appraisal process, to seek to ensure that the surveyor operates with professional independence and integrity throughout. The RICS is now consulting from 13 December 2019 until 9 February 2020 on a draft guidance note Assessing financial viability in planning under the National Planning Policy Framework for England, 1st edition that seeks to set out the methodology to be applied by those professionals, so as to give effect to Government policy.

We are not seeking comments contrasting the government framework with a market-based appraisal. Comments should focus on whether our draft guidance gives effect to government policy and practice guidance, in an administratively efficient way, in order to deliver the objectives of the NPPF.”

Make your views known.

In the meantime…

Elephant & Castle

Delancey’s proposed redevelopment of the Elephant & Castle shopping centre and London College of Communication has long been controversial. It proposes a large mixed-use development comprising a range of buildings of up to 35 storeys, with a mix of uses including 979 dwellings (proposed to be for rent rather than sale) and accommodation for retail, office, education, assembly and leisure along with a remodelling of the London Underground station. One of the lines of attack for objectors, including the 35% Campaign, has been the perceived lack of “genuinely affordable” housing.

Planning permission was granted by the London Borough of Southwark on 10 January 2019. Just before Christmas, in Flynn v London Borough of Southwark (Dove J, 20 December 2019), the High Court rejected a crowdfunded challenge to the permission brought on behalf of the 35% Campaign. The grounds of challenge all turned on the affordable housing deal that Southwark struck in the section 106 agreement with the developer.

The case doesn’t turn on any particularly interesting legal principles or make any new law. But the facts, set out in careful detail by Dove J, illustrate precisely the concerns that lay behind my attempt just now to establish some common ground:

The policy background is not straightforward, with a changing position both at borough level and at London Plan level.

The Mayor has set out criteria in his 2017 affordable housing and viability SPG for different tenures of affordable housing, including social rent (target rents determined through the national rent regime), affordable rent (rent controls requiring a rent of no more than 80% of the local market rent), intermediate (available for rent or sale at a cost above social rent but below market levels – and eligible only to households whose annual income is within a defined range) and intermediate London Living Rent (only available to households renting with a maximum income of £60,000 without sufficient current savings to purchase a home within the local area).

The adopted London Plan requires boroughs to seek the “maximum reasonable amount of affordable housing…when negotiating on individual private residential and mixed use schemes, having regard to” a number of factors, including “development viability” and the “availability of public subsidy”.

Within the Elephant & Castle area, Southwark’s adopted plan seeks a minimum requirement of 35%, on the basis of a split of 50% social rented and 50% intermediate housing. Its emerging plan seeks, in relation to build to rent developments, a different tenure split for the 35%: social rent equivalent (ie social rent level but not managed by registered provider) 34% minimum, affordable rent (aka discount market rent) capped at London Living Rent equivalent 52% minimum, affordable rent (aka discount market rent) for household incomes between £60,000 and £90,000 per year 14% minimum. The lack of social rent reflects the specific nature of build to rent developments, where it is more efficient for all of the housing to remain under single management rather than for a separate registered provider to be introduced.

At the time Delancey’s application first went to committee on 16 January 2018, its proposal was 36% affordable housing based upon habitable rooms, with the 36% made up as follows: 10% social rent equivalent, 46% London Living Rent, 43% discount market rent. The non policy compliant offer (in terms of tenure split) was based on an agreed viability assessment. Despite a recommendation for approval, members deferred a decision until a meeting scheduled for 30 January 2018 at which they intended to formulate reasons for refusal. The day before the follow-up meeting the developer made further proposals in relation to the affordable housing offer and the application was deferred to a subsequent meeting.

The revised proposal was to replace 33 social rent equivalent units with 74 socially rented units, all to be located on the western part of the development and to be owned and operated either by the borough or by a registered provider. This changed the tenure split (of the 35% affordable housing dwellings) to: social rent 24.9%, London Living Rent 27.9%, discount market rent 47.2%.

In June 2018 the offer was increased again. The developer’s consultants indicated that following “in-principle agreement from the GLA to provide grant funding towards the proposed scheme” the number of social rent units could be increased to 116 homes, or 38.1% of the 35% of the units that were to be affordable.

The application was approved at a committee meeting on 3 July 2018. It was acknowledged in the report that the proposed tenure split was still not policy compliant but was justified by way of the agreed viability appraisal. The report also noted that there would need to be a fallback arrangement in the section 106 agreement to cater for the possibility that the developer might choose after all to develop the western part of the development on a for sale rather than for rent basis (in which case the affordable housing requirement for that part of the site would return to 50% social rented, 50% intermediate).

If all of this does not start to give an idea of the inevitable complexity of negotiations on a scheme such as this, then consider the viability appraisal. As is common with a significant longterm development, where application of the more straightforward benchmark land value plus developer’s profit approach does not reflect accurately the financial modelling of a project over time, viability was judged against a minimum internal rate of return for the developer.

The latest RICS draft guidance defines internal rate of return (or “IRR”) as follows:

The rate of interest (expressed as a percentage) at which all future project cash flows (positive and negative) will be discounted in order that the net present value (NPV) of those cash flows, including the initial investment, be equal to zero. IRR can be assessed on both gross and net of finance.”

However, unless I have missed it, there is no guidance anywhere as to when an IRR approach is appropriate and how to arrive at and test the inputs and modelling.

The agreed benchmark was 7.15% IRR, with annual growth to 11% over the construction period. Review mechanisms in the section 106 agreement provide that 50% of any excess are to be applied to increasing the affordable housing provision up to a policy compliant level/tenure split.

The claimant had three grounds of challenge. The first turned on an alleged inaccuracy in the way that the GLA’s offer of funding had been reported – it had not been formally confirmed and discussions were at an “in principle stage”. The second alleged that one of the detailed mechanisms in the section 106 agreement departed from the relevant head of term in the committee resolution. The third related to the mechanism in the section 106 agreement for determining the affordable housing to be provided if the western part of the site turned into a “for sale” development, but a deed of variation had been entered into after the challenge was brought, largely correcting the error that had been identified.

Dove J rejected each of the grounds, whilst accepting that each was arguable. (1) The report did not materially mislead members. (2) The section 106 mechanism was not outside the scope of the committee resolution (“True it is that the solutions arrived at are not a literal interpretation of paragraph 364 [of the report to committee], in that they do not include for the provision of land and a substantial cash dowry to construct the social rented units but, in my judgment, that was not required in order to remain within the scope of the delegation granted by the members”). (3) The approach to the fallback (“for sale”) scenario was “entirely rational and appropriate”. Part of the claimant’s criticism of the arrangements turned on whether the additional affordable housing in these circumstances should be social rented units rather than the social rented equivalent units provided for. The judge saw nothing relevant in the distinction:

In terms of the matters raised by the Claimant the quality of tenure enjoyed by tenants in social rented equivalent properties are, as the nomenclature suggests, equivalent to those in social rented properties. Of course, there may well be nuanced differences between them as a consequence of them being separately defined. Furthermore, they will be managed in different ways as the definition implies. Be all of this as it may, in my view the important point is that the requirement of the officers’ report was a review in terms of affordable housing, and whether the additional habitable rooms were to be provided as social rented or social rented equivalent accommodation was not identified as being in any way a critical point upon which the delegation to the officers of authority to enter into the section 106 obligation turned. Put another way, whatever may be the nuanced differences between social rented equivalent property and social rented units that was not identified as a key requirement in relation to the review mechanism contemplated were the developer to take up the fall-back scenario.”

Will the new guidance make any of this more straight forward? I doubt it. Would proper funding for social rent and social rent equivalent housing? Of course it would.

Old Oak and Park Royal Local Plan

The recent NPPF and PPG changes of course seek to move the viability spotlight to the point at which sites are allocated for development. The Old Oak plan was examined last year under the previous NPPF but viability matters were still centre stage and the inspector’s findings may be an indicator of the detailed scrutiny that is likely to be given to the viability in particular of strategic sites (taken together with proposed policy requirements in terms of infrastructure delivery and affordable housing).

One of the key issues for the inspector was whether the proposed allocation of the 54 acre Cargiant site for residential and associated development was viable. Cargiant had itself attempted development of its site in the past. It had concluded that it would be unviable to contemplate relocating or extinguishing its business and carrying out the development – and took the position that there was no reasonable prospect within the plan period of the Old Oak and Park Royal Development Corporation (“OPDC”) being in a position to carry out such proposals, even by resorting to compulsory purchase and even with the benefit of £250m Housing and Infrastructure Fund monies which had been agreed in principle to be allocated by MHCLG.

My firm acted for Cargiant and so I will restrict myself to pointing out the level of detail to which the inspector went in his interim findings on viability of Cargiant site proposal (10 September 2019) before concluding that the allocation would be unviable and therefore unsound.

The day after the general election, on 13 December 2019, the OPDC announced that it would change its proposals, which will now leave Cargiant in place:

New focus for Old Oak and Park Royal regeneration:

The Old Oak and Park Royal Development Corporation (OPDC) has today set out a revised approach to deliver tens of thousands of new homes and jobs through collaboration with major public sector landowners.

The regeneration of Old Oak, Park Royal and surrounding areas in west London, has the potential to deliver 25,500 new homes and 65,000 jobs over the next 30 years. OPDC has already approved plans for over 5,000 homes including 1,500 already completed or being built.

The shift in approach has been triggered by recent, rapid increases in industrial land values in west London which mean that it is currently not financially viable to deliver OPDC’s early regeneration plans at Old Oak North. This area, close to the planned new HS2 interchange station, includes the 54-acre site that is owned and operated by Cargiant, which had originally been earmarked for development.

Earlier this year, the Planning Inspector, in his interim report on the OPDC’s draft Local Plan, de-designated the Cargiant site from Strategic Industrial Land, but also concluded that Old Oak North had become commercially unviable for residential-led development at this time.”

Whilst this situation might be taken to be an example of how viability matters can indeed in practice be taken into account at the plan-making stage, I do have concerns:

⁃ There is now a bigger onus on authorities to carry out proper viability work, including work to a sensible level of detail on strategic sites (albeit often with assistance from those promoting those sites for development), and is it actually going to be done?

⁃ Where it is not done, delays will occur in the examination process. At Old Oak, the necessary work had not been done and there was a significant hiatus whilst it was commissioned.

⁃ Development proposals are often not sufficiently worked up, at the stage that the plan is being prepared, so as to enable a sensible viability appraisal to be undertaken. And will developers be prepared always to come clean at the allocation stage as to the challenges they are facing in making the numbers stack up?

⁃ Will there always be participants in the local plan examination process with the motivation and resources to put authorities to proof on the work that has been carried out? If Cargiant hadn’t taken its stance (entailing lawyers and a team of consultants to challenge much of the inputs) I suspect the allocation would have been confirmed without challenge – and then proved over time to be undevelopable.

The next blog post will be shorter, I promise.

Simon Ricketts, 4 January 2020

Personal views, et cetera

Pic credit: Bizarro Comics

Blue Christmas

Duncan Field, Victoria McKeegan and I were speculating in our 16 December 2019 planorama vlog as to what the new Government’s legislative programme and policy priorities are likely to be in relation to planning, infrastructure and the environment

We now have the blueprint, in the form of the Queen’s Speech on 19 December 2019 and particularly the 151 pages of background notes published the same day.

There is going to be an “ambitious” planning white paper in due course, but what is promised in the meantime in this very blue paper that these notes represent? The government has little excuse not to deliver on what it has set out, given the size of its majority. The most relevant references are as follows:

Housing (pages 48 to 50):

My government will take steps to support home ownership, including by making homes available at a discount for local first-time buyers.”

The Government will support people to realise the dream of homeownership. One of the biggest divides in our country is between those who can afford their own home and those who cannot.

The Government will shortly launch a consultation on First Homes. This will provide homes for local people and key workers at a discount of at least 30 per cent – saving them tens of thousands of pounds.

The discount on First Homes will be secured through a covenant. This means these homes will remain discounted in perpetuity, supporting people now and in the future who aspire to own a home of their own.

The Government will also renew the Affordable Homes Programme, building hundreds of thousands of new homes for a range of people in different places. This will help us prevent people from falling into homelessness while also supporting further people into homeownership.

We will introduce a new, reformed Shared Ownership model, making buying a share of a home fairer and more transparent. This new model will be simpler to understand and better able shared owners to buy more of their property and eventually reach full ownership.

To deliver on the homes this country needs, the Government is committed to building at least a million more homes over this Parliament. In the coming months we will set out further steps to achieve this, including an ambitious Planning White Paper and funding for critical infrastructure.

The Planning White Paper will make the planning process clearer, more accessible and more certain for all users, including homeowners and small businesses. It will also address resourcing and performance in Planning Departments.

The new £10bn Single Housing Infrastructure fund will provide the roads, schools and GP surgeries needed to support new homes. Alongside First Homes, this will ensure local people truly benefit from house building in their area and build support for new developments

To help those who rent, the Government will build a rental system that is fit for the modern day – supporting landlords to provide high quality homes while protecting tenants. The Government’s Better Deal for Renters will fulfil our manifesto commitments to abolish ‘no fault’ evictions and to introduce lifetime deposits, alongside further reforms to strengthen the sector for years to come.

The Government is taking forward a comprehensive programme of reform to end unfair practices in the leasehold market. This includes working with the Law Commission to make buying a freehold or extending a lease easier, quicker and more cost effective – and to reinvigorate commonhold and Right to Manage.

The Government will ensure that if a new home can be sold as freehold, then it will be. We will get rid of unnecessary ground rents on new leases and give new rights to homeowners to challenge unfair charges. The Government will also close legal loopholes to prevent unfair evictions and make it faster and cheaper to sell a leasehold home.

For those in the social rented sector, we will bring forward a Social Housing White Paper which will set out further measures to empower tenants and support the continued supply of social homes. This will include measures to provide greater redress, better regulation and improve the quality of social housing.

This Government has committed to end rough sleeping by the end of this Parliament. The Government will continue to invest in key rough sleeping interventions, building on the progress that we made last year in reducing rough sleeping numbers. The Government will also continue to support those at risk of homelessness and rough sleeping through the continued enforcement of the Homelessness Reduction Act.

Building Safety Bill (pages 51 to 53):

New measures will be brought forward…to improve building safety.

An enhanced safety framework for high-rise residential buildings, taking forward the recommendations from Dame Judith Hackitt’s independent review of building safety, and in some areas going further by:

Providing clearer accountability and stronger duties for those responsible for the safety of high-rise buildings throughout the building’s design, construction and occupation, with clear competence requirements to maintain high standards.

Giving residents a stronger voice in the system, ensuring their concerns are never ignored and they fully understand how they can contribute to maintaining safety in their buildings.

Strengthening enforcement and sanctions to deter non-compliance with the new regime, hold the right people to account when mistakes are made and ensure they are not repeated.

Developing a new stronger and clearer framework to provide national oversight of construction products, to ensure all products meet high performance standards.

Developing a new system to oversee the whole built environment, with local enforcement agencies and national regulators working together to ensure that the safety of all buildings is improved.

We will also legislate to require that developers of new build homes must belong to a New Homes Ombudsman.

Fire Safety Bill (pages 54 to 55):

New measures will be brought forward…to improve building safety.”

Clarifying that the scope of the Fire Safety Order includes the external walls of the building, including cladding, and fire doors for domestic premises of multiple occupancy.

Strengthening the relevant enforcement powers to hold building owners and managers to account.

Providing a transitional period for building owners and managers (the “responsible person”) and Fire and Rescue Services to put in place the infrastructure for these changes.”

National Infrastructure Strategy (pages 90 to 91):

My government will prioritise investment in infrastructure…”

The National Infrastructure Strategy will be published alongside the first Budget, and will set out further details of the Government’s plan to invest £100 billion to transform the UK’s infrastructure.

The Strategy will set out the Government’s long-term ambitions across all areas of economic infrastructure including transport, local growth, decarbonisation, digital infrastructure, infrastructure finance and delivery.

The Strategy will have two key aims:

To unleash Britain’s potential by levelling up and connecting every part of the country. Prosperity will be shared across all of the UK, and long- standing economic challenges addressed, through responsible and prudent investment in the infrastructure.

To address the critical challenges posed by climate change and build on the UK’s world-leading commitment to achieve net zero emissions by 2050.

The Strategy will also provide the Government’s formal response to the National Infrastructure Commission’s 2018 National Infrastructure Assessment, which made a series of independent recommendations to government across all sectors of economic infrastructure (transport, energy, digital, waste, water and flood management).”

Rail reform and High Speed Rail 2 (West Midlands – Crewe) Bill (pages 101 to 103)

Last year the Government launched a ‘root and branch’ review of the railways led by Keith Williams. The Review is the first comprehensive assessment of the rail system in a generation and is tasked with making ambitious proposals to reform the rail industry.

The Review is focused on reforms that will put passengers at the heart of the railway, provide value for taxpayers and deliver economic, social and environmental benefits across Britain.

The Government will publish a White Paper informed by the recommendations next year. Among other things, this will end the complicated franchising model to create a simpler, more effective system.

The Government has also committed to a number of major investments in the railway, including:

o Midlands Rail Hub, to improve services around Birmingham and throughout the West and East Midlands;

o Northern Powerhouse Rail;

o Reopening a number of the lines and stations closed under the

Beeching cuts in the 1960s; and,

o Significant upgrades to urban commuter and regional services outside London.

Separate to the wider review of the railway system, the Government awaits the review, of the High Speed Two (HS2) network led by Doug Oakervee which is looking at whether and how to proceed with HS2, including the benefits and impacts; affordability and efficiency; deliverability; and scope and phasing, including its relationship with Northern Powerhouse Rail.

Without prejudice to the Oakervee Review’s findings and any Government decisions that follow, it is expected that the High Speed Rail (West Midlands – Crewe) Bill will be revived in this Parliament. The Bill was first introduced in Parliament in July 2017 and will enable Phase 2a of HS2. The Bill passed through the House of Commons and had completed Second Reading in the House of Lords before the dissolution of the previous Parliament. Following revival it would begin its next stages in the House of Lords.

English Devolution (pages 109 to 110):

My government…will give communities more control over how investment is spent so that they can decide what is best for them.”

We are committed to levelling up powers and investment in the regions across England and allowing each part of the country to decide its own destiny.

This means proposals to transform this country with better infrastructure, better education, and better technology.

We will publish a White Paper setting out our strategy to unleash the potential of our regions, which will include plans for spending and local growth funding.

It will provide further information on our plans for full devolution across England, levelling up powers between Mayoral Combined Authorities, increasing the number of mayors and doing more devolution deals.

These increased powers and funding will mean more local democratic responsibility and accountability.

We remain committed to the Northern Powerhouse, Midlands Engine, and Western Gateway strategies.

Business rates (page 111):

To support business, my government will…bring forward changes to business rates.

The Government is committed to conducting a fundamental review of business rates.

The Government recognises the role of business rates as a source of local authority income and will consider input from the sector as part of the review of business rates. Further details on the review will be announced.

We are committed to increasing the retail discount from one-third to 50 per cent, extending that discount to cinemas and music venues, extending the duration of the local newspapers discount, and introducing an additional discount for pubs.

We will also progress legislation to bring forward the next business rates revaluation by one year from 2022 to 2021 and move business rates revaluations from a five-yearly cycle to a three-yearly cycle. This will allow the Government to press ahead with delivering an important reform that has been strongly welcomed by business.

More frequent revaluations will ensure that business rates bills are more up- to-date reflecting properties’ current rental values. Moving to three-yearly revaluation will make the system more responsive to changing economic conditions.

Environment Bill (pages 112 to 114):

To protect and improve the environment for future generations, a bill will enshrine in law environmental principles and legally-binding targets, including for air quality. It will also ban the export of polluting plastic waste to countries outside the Organisation for Economic Co-operation and Development and establish a new, world-leading independent regulator in statute.

Establishing new long term domestic environmental governance based on: environmental principles; a comprehensive framework for legally-binding targets, a long term plan to deliver environmental improvements; and the new Office for Environmental Protection.

Improving air quality by setting an ambitious legally-binding target to reduce fine particulate matter (PM2.5), the most damaging pollutant to human health. The Bill also increases local powers to address sources of air pollution and brings forward powers for the Government to mandate recalls of vehicles when they do not meet legal emission standards.

Protecting nature by mandating ‘biodiversity net gain’ into the planning system, ensuring new houses aren’t built at the expense of nature and delivering thriving natural spaces for communities. We will improve protection for our natural habitats through Local Nature Recovery Strategies and give communities a greater say in the protection of local trees.

Preserving our resources by minimising waste, promoting resource efficiency and moving towards a circular economy. These measures include extended producer responsibility, a consistent approach to recycling, tackling waste crime, introducing deposit return schemes, and more effective litter enforcement. We will also ban the export of polluting plastic waste to non- OECD countries, consulting with industry, NGOs, and local councils on the date by which this should be achieved.

Introducing charges for specified single use plastic items. This will build on the success of the carrier bag charge and incentivise consumers to choose more sustainable alternatives.

Managing water sustainably through more effective legislation to secure long- term, resilient water and wastewater services. This will include powers to direct water companies to work together to meet current and future demand for water, making planning more robust, and ensuring we are better able to maintain water supplies.

Climate change (pages 115 to 118):

My government will continue to take steps to meet the world-leading target of net zero greenhouse gas emissions by 2050. It will continue to lead the way in tackling global climate change, hosting the COP26 Summit in 2020.”

We will build on our progress with an ambitious programme of policy and investment, with our first Budget prioritising the environment. This will help deliver the green infrastructure needed to improve lives and achieve Net Zero, including by investing in carbon capture, offshore wind, nuclear energy, and electric vehicle infrastructure so that individuals are always within 30 miles of a chargepoint. We will make sure we help lower energy bills investing in the energy efficiency of homes, schools and hospitals. And away from home, we will use our £1 billion Ayrton Fund to develop affordable clean energy for developing countries.

The government will continue to use our position as a global leader in this area by hosting the UN Climate Change Summit in Glasgow in 2020 (COP26). We will ask our partners to match the UK’s ambition.

With a focus on nature based solutions at our upcoming COP summit, at home we will be substantially increasing our tree-planting commitment and creating a £640 million new Nature for Climate fund.

Our natural environment is one of our greatest assets, and can play a crucial role in the fight against climate change. This government will:

introduce a landmark Environment Bill – the first one in twenty years – that will create an ambitious environmental governance framework for post Brexit, as well as banning the export of plastic waste to non-OECD countries;

establish a new £500 million Blue Planet Fund to help protect our oceans from plastic pollution, warming sea temperatures and overfishing;

lead diplomatic efforts to protect 30 per cent of the world’s oceans by 2030; and,

in our trade negotiations, never compromise on our high environmental protection

We will also ensure that we are protecting our citizens by investing £4 billion in flood defences and lowering energy bills by investing £9.2 billion in the energy efficiency of homes, schools and hospitals.

We will increase our ambition on offshore wind to 40GW by 2030, and enable new floating turbines.

We will support decarbonisation of industry and power by investing £800 million to build the first fully deployed carbon capture storage cluster by the mid-2020s; and £500 million to help energy-intensive industries move to low-carbon techniques.

Constitution and democracy (pages 126 to 127):

A Constitution, Democracy and Rights Commission will be established. Work will be taken forward to repeal the Fixed-term Parliaments Act.”

Setting up a Constitution, Democracy & Rights Commission that will:

Examine the broader aspects of the constitution in depth and develop proposals to restore trust in our institutions and in how our democracy operates. Careful consideration is needed on the composition and focus of the Commission. Further announcements shall be made in due course.

It’s a blue, blue, blue, blue Christmas.

The usual askew perspectives and commentary will continue here in 2020.

Simon Ricketts, 21 December 2019

Personal views, et cetera

This Week’s Big News: Supreme Court, Village Greens & The Statutory Incompatibility Test

You will remember the Supreme Court’s unanimous ruling that our Prime Minister had acted unlawfully in advising the Queen in August 2019 that Parliament should be prorogued?

Last week, in R (Lancashire County Council) v Secretary of State

R (NHS Property Services Ltd) v Surrey County Council and another (Supreme Court, 11.12.19), five Supreme Court justices were faced with a rather more difficult issue, where a unanimous ruling could not be achieved.

The principal issue was “the circumstances in which the concept of “statutory incompatibility” will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes.”

It’s an important question, given the frequency with situations arise where land owned by public bodies may end up being used by local people for many years “as of right”. It is also somewhat of a legal conundrum due to the apparent inconsistency between the rights given by the Commons Act 2006 and the statutory regimes under which public bodies hold land for public purposes.

In R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7; [2015] AC 1547 (“Newhaven”) [the Supreme Court] held that the duty under section 15 of the Commons Act 2006 did not extend to an area held under the specific statutes relating to the Newhaven Harbour. We are asked to decide whether the same principle applies to land held by statutory authorities under more general statutes, relating respectively (in these two cases) to education and health services.”

The facts are summarised in my 5 May 2018 blog post We Are The Village Green Preservation Society, which covered the Court of Appeal’s decision to uphold registration. The Court of Appeal had distinguished the Newhaven case, holding as follows:

⁃ in relation to the land held by Lancashire County Council for educational purposes, that by “contrast with Newhaven Port & Properties, there were no ‘specific’ statutory purposes or provisions attaching to this particular land. Parliament had not conferred on the county council, as local education authority, powers to use this particular land for specific statutory purposes with which its registration as a town or village green would be incompatible.”

⁃ in relation to the land owned by NHS Property Services in Surrey, “the circumstances did not correspond to those of Newhaven Port & Properties. The land was not being used for any ‘defined statutory purposes’ with which registration would be incompatible. No statutory purpose relating specifically to this particular land would be frustrated. The ownership of the land by NHS Property Services, and the existence of statutory powers that could be used for the purposes of developing the land in the future, was not enough to create a ‘statutory incompatibility’. The clinical commissioning group would still be able to carry out its statutory functions in the provision of hospital and other accommodation and the various services and facilities within the scope of its statutory responsibilities if the public had the right to use the land at Leach Grove Wood for recreational purposes, even if the land itself could not then be put to use for the purposes of any of the relevant statutory functions. None of those general statutory functions were required to be performed on this land. And again, it is possible to go somewhat further than that. Although the registration of the land as a village green would preclude its being developed by the construction of a hospital or an extension to the existing hospital, or as a clinic or administrative building, or as a car park, and even though the relevant legislation did not include a power or duty to provide facilities for recreation, there would be nothing inconsistent – either in principle or in practice – between the land being registered as a green and its being kept open and undeveloped and maintained as part of the Leatherhead Hospital site, whether or not with access to it by staff, patients or visitors. This would not prevent or interfere with the performance of any of the relevant statutory functions. But in any event, as in the Lancaster case, the two statutory regimes were not inherently in conflict with each other. There was no ‘statutory incompatibility’.”

The Supreme Court overturned the Court of Appeal’s ruling by a majority. In the majority judgment of Lord Carnwath and Lord Sales (with which Lady Black also agreed) it was held that the “test as stated is not whether the land has been allocated by statute itself for particular statutory purposes, but whether it has been acquired for such purposes (compulsorily or by agreement) and is for the time-being so held.”

Acquisition of land by a statutory undertaker by voluntary agreement will typically be by the exercise of general powers conferred by statute on such an undertaker, where the land is thereafter held pursuant to such powers rather than under specific statutory provisions framed by reference to the land itself (as happened to be a feature of the provisions which were applicable in Newhaven itself). That is also true of land acquired by exercise of powers of compulsory purchase. In relation to the latter type of case, the majority said in terms that “the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes” (para 93). On our reading of the majority judgment, it is clear that in relation to both types of case Lord Neuberger and Lord Hodge took the view that an incompatibility between general statutory powers under which land is held by a statutory undertaker (or, we would add, a public authority with powers defined by statute) and the use of such land as a town or village green excludes the operation of the 2006 Act.

We do not find the construction of the 2006 Act as identified by the wider reasoning of the majority in Newhaven surprising. It would be a strong thing to find that Parliament intended to allow use of land held by a public authority for good public purposes defined in statute to be stymied by the operation of a subsequent general statute such as the 2006 Act. There is no indication in that Act, or its predecessor, that it was intended to have such an effect.”

“In construing the 2006 Act it is also significant that it contains no provision pursuant to which a public authority can buy out rights of user of a town or village green arising under that Act in relation to land which it itself owns…Again, it would be surprising if Parliament had intended to create the possibility that the 2006 Act should in this way be capable of frustrating important public interests expressed in the statutory powers under which land is held by a public authority, when nothing was said about that in the 2006 Act.”

The three justices stressed that what matters is the statutory powers for which the land is held, not how the public body may be using, or proposing to use, the land.

Lady Arden dissented from the majority judgment on that last issue (whilst agreeing that the appeals be allowed); in her view it “must be shown that the land is in fact also being used pursuant to those powers, or that it is reasonably foreseeable that it will be used pursuant to those powers, in a manner inconsistent with the public’s rights on registration as a TVG.”

Lord Wilson dissented from the majority judgment more widely and would have dismissed the appeals:

It is agreed that, in their capacity as education authorities, local authorities, such as the appellant in the Lancashire case, can hold land only for specified statutory purposes referable to education; that health authorities, such as the appellant in the Surrey case, can hold land only for specified statutory purposes referable to health; and that, for example, in their capacity as housing authorities, local authorities can hold land only for specified statutory purposes referable to housing.

If public authorities which hold land for specified statutory purposes are to be immune from any registration of it as a green which would be theoretically incompatible with their purposes, the reach of section 15 of the Commons Act 2006 Act is substantially reduced. One would expect that, had such been its intention, Parliament would have so provided within the section. In the absence of any such provision, whence does justification for it come?

He disagreed with Lord Carnwath and Lord Sales that “incompatibility with statutory purposes should be assessed as a theoretical exercise rather than by means of a practical inquiry into interference with the authority’s existing or proposed future use of the land.

Adopting what I believe to be the correct, practical, approach to the assessment of incompatibility in relation to the present appeals, I agree with the Court of Appeal that neither the education authority nor the health authority has established that public use of its land as a registered green would be likely to be incompatible with its use of it pursuant to its statutory powers. In the Lancashire case the Inspector conducted the requisite practical assessment, which led her to reject the alleged incompatibility; and, like the Court of Appeal, Ouseley J in the Administrative Court found no fault with her reasoning. I discern no ground upon which this court might have concluded otherwise. In the Surrey case the Inspector, while recommending refusal of the application for a different reason later shown to be invalid, also rejected the alleged incompatibility on apparently practical grounds; and the error of law which Gilbart J in the Administrative Court perceived him to have made in assessing it practically rather than as a matter of statutory construction was in my view correctly held by the Court of Appeal to have been no error at all.

It was with complete passivity that, for no less than 20 years, these two public authorities contemplated the recreational use of their land on the part of the public. Their simple erection at some stage during that period of signs permitting (or for that matter prohibiting) public use would have prevented such use of the land being as of right: Winterburn v Bennett [2016] EWCA Civ 482, [2017] 1 WLR 646. In such circumstances it is hardly surprising that they both failed to establish its practical incompatibility with their own proposed use of it.”

Concluding remarks

The judgment gives public bodies a much stronger basis to resist application for registration of land which they hold in pursuance of statutory functions. Will we now indeed see applications to de-register village greens? Part of the reason for this legislative and judicial mess is because, as identified early on in the majority judgment, “there is no indication that the concept of a modern green, as it has been developed by the courts, was part of the original thinking under the Commons Registration Act 1965” – it was assumed that the 1965 Act was to be read as requiring 20 years’ use as a village green before the passing of that Act, rather than a period of 20 years back from the date of the application, but this was not how the test came to be interpreted by the courts and the opportunity was not taken to clarify the position when the Bill that led to the Commons Act 2006 passed through Parliament.

Applications for village green registration are a powerful weapon, often used with the purpose of opposing development, and a successful application will inevitably have that effect. The scope for such applications was much reduced by the introduction of a series of disqualifying “trigger events” in the Growth and Infrastructure Act 2013 and this Supreme Court ruling will serve to reduce their scope further.

Simon Ricketts, 14 December 2019

Personal views, et cetera

Unsuccessful Attacks On Guildford & Waverley Local Plans

Two recent salutary lessons from Surrey for campaigners tempted to resort to the courts, having failed to persuade the relevant local plan inspector.

Guildford local plan

In Compton Parish Council v Guildford Borough Council (Sir Duncan Ouseley, 4 December 2019), three separate claimants, Compton Parish Council, a Mr Julian Cranwell and Ockham Parish Council, “opposed the principle and extent of land which the submitted Plan proposed to release from the Green Belt, as well as the allocation for development of specific sites proposed for release from the Green Belt.

The main general issue (numbered 2 in the list used by the parties) was whether the Inspector had erred in law in his approach to what constituted the “exceptional circumstances” required for the redrawing of Green Belt boundaries on a local plan review. This had a number of aspects, including whether he had treated the normal as exceptional, and had failed to consider rationally, or with adequate reasons, why Green Belt boundaries should be redrawn so as to allow for some 4000 more houses to be built than Guildford BC objectively needed. The scale of the buffer did not result, it was said, from any consideration of why a buffer of such a scale was required but was simply the sum of the site capacities of the previously allocated sites. There were two other general issues (1) and (7): (1) had the Inspector considered lawfully or provided adequate reasoning for not reducing the housing requirement, leaving some needs unmet to reflect the Green Belt policy constraints faced by Guildford BC? (7) Did Guildford BC breach the Environmental Assessment of Plans and Programmes Regulations 2004 SI No.1633, in deciding not to reconsider what might be reasonable alternatives to the proposed Plan when, in 2018, the objectively assessed housing needs figure was reduced from 12,426 to 10,678, with housing land supply allocations totalling 14,602. It was submitted that it ought to have considered alternatives such as removing the development allocation in the Green Belt from one or more of the contentious large sites.”

But there were also site specific grounds of challenge. The first site specific issue, (4), relating to the former Wisley airfield, was the adequacy of reasons given by the Inspector in his report on the PE for reaching conclusions which, it was said, were inconsistent with the views expressed by an Inspector, accepted by the Secretary of State, on an appeal against the refusal of planning permission for a major residential development at the former Wisley airfield, taking up most of the Local Plan allocation there. The appeal Inquiry began before the PE and the decision emerged in the course of the PE. The second site specific issue at Wisley, (5a), concerned the extent of land removed from the Green Belt yet not allocated for development, termed “white land”; issue (5b) concerned the lawfulness and effect of the submission of the 2017 version of the Plan, when the further consultation on it was restricted to the 2017 changes, and did not encompass unchanged aspects of the 2016 version, upon which there had already been consultation in 2016. The third issue, (8), concerned the lawfulness of the approach by the Inspector to the air quality impact of the Wisley allocation on the Thames Basin Heaths Special Protection Area, the SPA. It was initially said that the Conservation of Habitats and Species Regulations 2017 SI No.2012 required the decision-maker to leave mitigation and avoidance measures out of account; but the argument was refined so that it attacked the assessment that there would be no adverse effects, on the basis that there would still be exceedances of critical thresholds, even though the baseline levels of pollution would have reduced.

The site-specific issues raised in respect of the Blackwell Farm allocation were, (3), that the local exceptional circumstances relied on by the Inspector were not legally capable of being regarded as “exceptional”, and that strategic and local “exceptional circumstances” overlapped, leading to double counting of exceptional circumstances. The other issue at Blackwell Farm was, (6), whether the Inspector erred in law in the way he considered the new access road. This would have to climb the escarpment to link to the A31, and a section of which would pass through the part of the Surrey Hills Area of Outstanding Natural Beauty, the AONB, which lay to the north of the A31. Should he have concluded that this would be “major development” in the AONB and so face a policy obstacle to its approval which could put the allocation at risk, or even prevent its being delivered? He should at least have taken this risk into account.”

After assessing the extent of local housing need the inspector concluded that there was “to strategic-level exceptional circumstances to alter the Green Belt boundary to meet development needs in the interests of the proper long-term planning of the Borough.

Some highlights:

Issue 1: did the Inspector consider and provide legally adequate reasons for his conclusion that the objectively assessed need for 10678 dwellings should be met in full, notwithstanding the consequent need for the release of land from the Green Belt?

There is no definition of the policy concept of “exceptional circumstances”. This itself is a deliberate policy decision, demonstrating that there is a planning judgment to be made in all the circumstances of any particular case; Calverton Parish Council v Nottingham City Council [2015] EWHC 1078 at [20], Jay J. It is deliberately broad, and not susceptible to dictionary definition.”

“”Exceptional circumstances” is a less demanding test than the development control test for permitting inappropriate development in the Green Belt, which requires “very special circumstances.” That difference is clear enough from the language itself and the different contexts in which they appear, but if authority were necessary, it can be found in R(Luton BC) v Central Bedfordshire Council [2015] EWCA Civ 537 at [56], Sales LJ. As Patterson J pointed out in IM Properties Development Ltd v Lichfield DC [2014] EWHC 2240 at [90-91 and 95-96], there is no requirement that Green Belt land be released as a last resort, nor was it necessary to show that assumptions upon which the Green Belt boundary had been drawn, had been falsified by subsequent events.”

“Mr Kimblin put forward Mr Cranwell’s contention that the supply of land for ordinary housing, even with the combination of circumstances found here to constitute exceptional circumstances by the Inspector, could not in law amount to “exceptional circumstances.” I cannot accept that, and I regard it as obviously wrong.”

“The Inspector has already considered the pressing needs, and the consequence of them not being met. Here he considers whether the consequence of those needs being met, through releases of Green Belt land, mean that they should nonetheless not be met. His conclusion is clear: there is no justification for applying a restriction on the quantity of development. His reasoning is clear and adequate: land can be found within the Green Belt, through boundary changes, with relatively limited impacts on openness, elaborated elsewhere in the Report, and without causing severe or widespread harm to its purposes. He also considered whether further land could be made available in the urban areas; IR 81-2; these had been thoroughly investigated; significant constraints existed; any extra yield from sites which could have potential not yet earmarked, “would fall a long way short of making the scale of contribution towards meeting overall development needs that would enable the allocated sites in the Green Belt to be taken out of the Plan.”

“I reject the Claimants’ first ground of challenge. This issue and whether a policy restraint should be applied to the OAN was considered and the Inspector’s conclusion that there should be no restraint below OAN was supported by ample reasoning.”

“Issue 2: Was the conclusion that there were exceptional circumstances justifying the allocations of housing land, released from the Green Belt, to provide headroom of over 4000 dwellings above the 10678 OAN lawful, and adequately reasoned?”

“…in my judgment, once meeting the OAN is accepted as a strategic level factor contributing to “exceptional circumstances”, as it has to be for the purpose of this Issue in the light of my conclusions on Issue 1, it follows that the provision of headroom against slippage and for flexibility to meet changes, “future-proofing” the Plan, as the Inspector put it, would also contribute to such circumstances.”

“...having read the strategic and Local-level exceptional circumstances, which have to be taken together, I had no sense of having read something illogical or irrational, or which strained the true meaning of “exceptional circumstances.” I can see that a different approach to the quantity of headroom might have commended itself, but that was plainly a matter of planning judgment.”

Issue 7 Sustainability Appraisal”

“The Claimants contended, through Mr Harwood, that once the OAN was reduced from 12426 to 10678 as a result of the publication in September 2018 of the 2016 household projections, there should have been a further SA examining reasonable alternatives which matched allocations to the OAN figure of 10678, with the Wisley airfield allocation in mind in particular however.”

“I cannot accept these arguments. No complaint is made of the SA process before the effect of the 2016 household projections was considered. First, the objectives of the Plan had not changed; the objective was not the provision of 10,678 dwellings; it was not simply the provision of the OAN plus an appropriate buffer. I have set out how the objective was phrased in the earlier versions of the SA. An updated SA, confining itself to the provision of 10,678 dwellings, omitting any buffer, would not have been a reasonable alternative, as previous SAs concluded, and would have been for an objective other than that of the Plan.

The judgment that an OAN without any buffer was not a reasonable alternative, was a reasonable judgment for Guildford BC to make. It could only be attacked on rationality grounds; see Spurrier and Others v Secretary of State for Transport and Others [2019] EWHC 1070 (Admin) at [434]. That would be untenable.

Second, whether the effective increase in the headroom or buffer, but without change to the level of housing allocation, was a significant change or one likely to have significant effects was a matter for the judgment of Guildford BC, as the decision-maker. It is clear that the overall level of housing supply was within the range already considered. All the housing allocations had already been evaluated. The judgment that the change was not significant or likely to have significant effects which had not already been considered, was reasonable.

Third, the only point in considering further alternatives would have been whether one or two large sites should be removed from the allocations. The smaller, sequentially less preferable Green Belt releases around villages, totalling 945 dwellings, could not have been omitted from any reduced buffer because of their importance in meeting the five-year housing supply in the early years of the Plan after adoption. Guildford BC and the Inspector did in fact consider whether the increased level of buffer in the same total supply, with a reduced OAN, was appropriate. They each concluded that it was, and that no large Green Belt site allocation should be now omitted. The arguments for deleting one or more of the 3 large sites were raised; indeed there was an obvious issue about whether that would be an appropriate response. Guildford BC and the Inspector considered it. Guildford BC was entitled to conclude that a further round of SA was quite unnecessary. The Inspector agreed, in his Report. There was no misdirection as to the law; it was for Guildford BC to judge whether there had been a change in circumstances or in the plan which warranted a further SA. This judgment can only be challenged on public law grounds; the only one available would be irrationality. There was no irrationality in the decision.”

Even if there had been an error, and assuming that the omission of one or two of the large sites would have been a reasonable alternative to consider, it is perfectly obvious that the allocations in the adopted plan would have been the preferred choice. That issue was considered by both Guildford BC and by the Inspector. Omission of a further SA would have been a procedural error causing no prejudice, let alone substantial prejudice to anyone. Even if one going to vires, I would have exercised my residual discretion to take no action, given that it is perfectly obvious that it could have had not the slightest effect on the outcome of the Plan.”

“Issue 4: the Wisley airfield appeal decision and the way in which the Inspector dealt with it.”

“I do not consider that it was necessary for the LP Inspector to take the AIR and analyse all its views against his views on the various topics. There is perhaps a difference in emphasis in the LP IR comments on the Green Belt releases in general “relatively limited impacts on openness” and their not causing “severe or widespread harm”, and the AIR comment that there would be “very considerable harm” to the Green Belt from the Wisley allocation. However, as IR 182 makes clear, on a comparative basis, the Wisley site was of medium sensitivity. Its development would avoid putting pressure on other Green Belt areas of greater sensitivity. This comparative exercise, underpinned by the Green Belt and Countryside Study, was not a task which the appeal Inspector could undertake or attempted to undertake; but was essential for the LP Inspector. The same applies to the assessment of the degree of visual prominence: the LP IR comments on the allocation as “fairly self-contained visually,” being on a plateau and not prominent, whereas the AIR thought it visible along its length to highly sensitive receptors, though quite well screened in certain respects. But the sites they consider differed in an important respect and with an adverse effect for the appeal scheme. It is obvious from the AIR that the narrowness of the appeal site exacerbated the prominence of the appeal development. The LP Inspector also considered that specific design objectives, should be in the Plan, via a Main Modification, Policy A35.The effect on the character of the area is referred to in IR 181, but is a factor outweighed by the compelling strategic-level exceptional circumstances. The LP Inspector obviously considered the appeal decision, but found the circumstances he had to deal with, compelling.”

“Accordingly, I reject the contention that it is not possible to see why the LP Inspector reached the conclusion he did, having considered, as he obviously did, what the AIR and Secretary of State had to say. In the circumstances known to all participants about the differing tasks, the reasons are sufficient. There was no need to identify, issue by issue, where the LP Inspector did or did not, to some degree, agree or disagree with the appeal Inspector. Such differences as there may be are explained by the different focus of their tasks and the different cases they were considering.”

Issue 8: The air quality impact of the allocation at the former Wisley airfield”

“It is perfectly clear, in my judgment, that Guildford BC, whose task it was to undertake the HRA, did consider whether significant adverse effects were likely from the development proposed in the Local Plan; it then undertook an appropriate assessment to see whether there would be no adverse effect on the SPA. That could not be answered, one way or the other, by simply considering whether there were exceedances of critical loads or levels, albeit rather lower than currently. What was required was an assessment of the significance of the exceedances for the SPA birds and their habitats. Guildford BC did not just treat reductions in the baseline emissions or the fact that with Plan development, emissions would still be much lower than at present, as showing that there would be no adverse effect from the Plan development. The absence of adverse effect was established by reference to where the exceedances of NOx and nitrogen deposition would occur, albeit reduced, and a survey based understanding of how significant those areas were for foraging and nesting by the SPA birds. The approach and conclusion show no error by reference to the Regulations or CJEU jurisprudence. I have set out the 2019 HRAs at some length. The judgment is one for the decision-maker, as to whether it is satisfied that the plan would not adversely affect the integrity of the site concerned; the assessment must be appropriate to the task. Its conclusions had to be based on “complete precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effect of the proposed works on the protected site concerned”; People Over Wind. But absolute certainty that there would be no adverse effects was not required; a competent authority could be certain that there would be no adverse effects even though, objectively, absolute certainty was not proved; R (Champion) v North Norfolk District Council [2015] UKSC 52 at [41], and Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174 at [78]. The same approach applies, following the Dutch Nitrogen case, to taking account of the expected benefits of measures not directly related to the plan being appropriately assessed.”

Issue 6: The access road at Blackwell Farm and major development in the AONB

“The issue before me was whether the Inspector reached a conclusion on whether the access road was “major development” in the AONB, to which NPPF [116] applied; a contrary conclusion was said to be irrational. If he had reached no conclusion, he ought to have considered the risk to the allocation, and hence to its deliverability, which would arise when a planning application was made, and a decision could be reached that it was indeed “major development”, with all the weight, adverse to the development, which would have to be given to such a conclusion.”

“I can see the force in the argument from Mr Findlay and Mr Turney that the Inspector has in substance concluded that, with the Main Modifications, the means have been provided for the access road to be constructed in such a way that it would not constitute “major development.” However, he has not expressly so concluded, and it would not have been for him to express the decisive view on the point, or to do so in advance of the detailed design of the road. He has reached the view that the road would not inevitably be “major development”, and that it could be designed and landscaped so that the risk of a significant hurdle to the delivery of the allocation is minimised. I do not consider that he needed to go further. In effect, the degree of risk, with the modification, was not such that it made him find the allocation to be unsound. He considered the issue; his language makes his view clear that he sees no significant risk, and is adequately reasoned.

But it cannot be ignored that he has included an extent of headroom, complained of by the Claimants, in part because he recognised the difficulties which larger sites face. This issue was not expressly part of his consideration of the justification for the headroom, but hurdles and delays in the way of approving infrastructure would have been well within his contemplation of the sort of problems which larger sites face.”

Three days in court, eleven barristers, all claims rejected.

Waverley local plan

In CPRE Surrey v Waverley Borough Council (Court of Appeal, 31 October 2019) CPRE Surrey and POW Campaign were appealing against the dismissal of their applications at first instance which had sought to challenge the adoption of the Waverley local plan. They contended that “the council erred in law in adopting the Local Plan Part 1 because the inspector who carried out the examination of it under section 20, when identifying the objectively assessed need (“OAN”) for housing in the borough of Waverley, took an unlawful approach to the treatment of the unmet housing need in the neighbouring borough of Woking. CPRE Surrey also complain that the relevant reasons in the inspector’s report were inadequate. The crucial point, common to both appeals, concerns the inspector’s recommended Main Modification 3, which the council accepted, whose effect was to increase the annual housing requirement figure in Waverley by 83 dwellings per annum – 1,575 dwellings over the whole plan period – to address unmet housing need in Woking.

There were four issues: “first, whether the inspector’s approach to the assessment of unmet housing need in Woking was unlawful and his conclusion unreasonable; second, whether his assessment was vitiated by a failure to seek further information; third, whether he was obliged to recommend a review of the Local Plan Part 1; and fourth, whether his reasons were inadequate”.

At paragraph 35 of his judgment Lindblom LJ sets out the principles applying where there is a challenge to a planning decision-maker’s assessment of housing need, by reference to the relevant case law.

He addresses the claimants’ arguments that the inspector had adopted an incorrect approach in failing to assess Woking’s objectively assessed need before deciding to increase Waverley’s housing requirement figure:

“I cannot accept those submissions, skilfully presented as they were. The fatal weakness in such arguments is that they draw the court beyond the line dividing the role of the judge from the role of the planning decision-maker – territory where the court will not intrude. In my view the judge’s analysis is consistent with the general principles recognized and applied in the authorities. As she held, the inspector’s approach to the issue of unmet housing need in Woking was lawful, and his conclusion did not exceed the range of reasonable planning judgment.”

“In the circumstances he was entitled to conclude, as a matter of planning judgment, that it was reasonable to calculate the necessary uplift to Waverley’s OAN by taking 50% of “the figure for unmet need identified through the [2015 SHMA] process”. This conclusion entailed not merely his judgment on the appropriate proportion, but, in effect, a composite judgment on both amount and proportion: hence the figure of 83 dwellings per annum. Another inspector might have reached a different conclusion on the same evidence, but this does not mean that the conclusion he did reach was legally bad. The conclusion that the appropriate proportion was 50% – rather than, say, 60% or 70% or 75% – was comfortably within the bounds of reasonable planning judgment. In judging this to be the appropriate proportion, the inspector took care not to overstate the amount of Woking’s unmet need that should be met in Waverley. This was a cautious judgment, which deliberately allowed for the uncertainties to which he had referred. The ingredients of the calculation itself were clear. They had been identified at the examination, and were explained in the inspector’s conclusions (paragraphs 26 and 29 and footnote 9). And the figure it produced was specific enough for its purpose. It was not unreasonably approximate.”

As for the attack on the adequacy of his reasons:

Generally at least, the reasons provided in an inspector’s report on the examination of a local plan may well satisfy the required standard if they are more succinctly expressed than the reasons in the report or decision letter of an inspector in a section 78 appeal against the refusal of planning permission. As Mr Beglan submitted, it is not likely that an inspector conducting a local plan examination will have to set out the evidence given by every participant if he is to convey to the “knowledgeable audience” for his report a clear enough understanding of how he has decided the main issues before him.

But the crucial point here is that the inspector explained sufficiently why he had concluded that 50% of Woking’s unmet housing need should be planned for in the Local Plan Part 1. His reasons leave no room for sensible doubt on that issue. He did not have to set out the representations in which various possible conclusions – a wide range of them – were put forward, or summarize the relevant evidence. Participants in the process were familiar with the submissions and evidence. The inspector’s reasons had only to set out the main parts of his assessment and the essential planning judgments in it. They did that.”

That reasoning is clear, adequate and intelligible. Nothing that ought to be there is left out. Nothing is obscure. The appellants disagree with the outcome of the inspector’s assessment. But they cannot say that the reasons he gave in those four paragraphs of his report left them unable to see why he concluded as he did.

Simon Ricketts, 6 December 2019

Personal views, et cetera

Image courtesy of Surrey Life

Can’t Buy A Thrill: Evenings In High Streets

We’re hosting a workshop for London First this week, as part of its London’s Transforming High Streets programme.

Usual mistake of agreeing to say a few words and then reading what it’s about:

The aim of the workshop is to bring together London First members and stakeholders to investigate the barriers to town centre transformation thrown up by the licensing system, and whether there is a disconnect between the places envisioned by the planning system and the permissions given to operators through licensing. Too often we hear examples of businesses trying to create the kind of vibrant live-work-eat-play, 24h places that consumers increasingly demand, only to be actively shut down through licensing. Or developers berated for not incorporating bold design into their regeneration plans, knowing full well the suggested outdoor spaces would never get permission to be used for anything mildly interesting. Are there good examples of where licensing is actively enabling change and growth, and how can we make sure this becomes standard practice to support our a fast-changing retail and hospitality sector?

This is all close to my heart. Opportunities for socialising and cultural activity, theatres, live music, all make London what it is. I walked through the latest phase of Argent’s Kings Cross development last night, the area already buzzing with people enjoying the spaces and venues. And, whilst some change is always inevitable, even more important are London’s existing pubs and venues, under threat by any combination of the five Rs: rents, rates, regulation, residents and redevelopment.

But I realised how much a planning lawyer like me operates in a professional silo, trained to think of the statutory regimes for alcohol and entertainment licensing, just like Building Regulations, as “not planning law”.

Which is a bit odd.

If town and city centres are to retain their central economic and social role they have to be about more than working and shopping. And that needs legislation and policy to be focused on common objectives.

See this BBC piece The growing importance of the night-time economy (17 November 2019). The “live music” sector alone made a contribution of £1.1 billion to the UK economy in 2018, according to UK Music’s Music By Numbers 2019 (20 November 2019).

I can only talk first hand about London.

When becoming London Mayor in May 2016, one of Sadiq Khan’s early steps was to appoint Amy Lamé as London’s “night czar”. Aside from presenting her excellent Sunday afternoon BBC6 Music show (at a time when even I am still awake), she has played an active role in encouraging all aspects of London’s night time economy and the Mayor has made steady progress, including on TfL’s important night tube strategy. Could more have been done? I would be interested to hear views.

As announced in the Mayor’s 31 January 2019 press release London’s night-time economy can help save the high street, London’s Night Time Commission published its report Think Night: London’s Neighbourhoods from 6pm to 6 am with its ten recommendations:

RECOMMENDATION 1: The Mayor should put the night at the heart of London policy- making. He should introduce a Night Test for all new policies to rate their impact on London’s culture, sociability, wellbeing and economy at night.

RECOMMENDATION 2: The Mayor should produce Night Time Guidance for boroughs. This will help them develop holistic Night Time Strategies that go beyond the night time economy and cover all aspect of their town centres and other areas between 6pm and 6am.

RECOMMENDATION 3: The Mayor should set up a London Night Time Data Observatory. This central hub of data on the economy, transport, licensing, infrastructure, safety and health would help boroughs create their Night Time Strategies and inform local decision making

RECOMMENDATION 4: The Mayor should publish an annual report on London at Night. It should include a series of night time metrics that show his progress in implementing the Night Time Commission’s recommendations and achieving the ambitions of his 24-Hour City Vision

RECOMMENDATION 5: The Mayor should establish a Night Time Enterprise Zone fund that boroughs can bid into, starting with a Pathfinder Zone in 2020

RECOMMENDATION 6: The Mayor should carry out research to establish the case for longer opening hours across London

RECOMMENDATION 7: The Mayor, should help establish new partnerships across the capital to improve safety, reduce violence and make London welcoming for everyone at night

RECOMMENDATION 8: The Mayor should develop guidance to help boroughs, landowners and developers create welcoming, safe and vibrant public spaces at night

RECOMMENDATION 9: The Mayor should set up a Late Night Transport Working Group to ensure that workers, visitors and customers can get around London quickly and safely at night. The group should consider extending night services, introducing a ‘Night Rider’ fare that allows workers to move between bus, tube, train, DLR or tram in a single fare, and encourage more use of TfL’s land and buildings at night

RECOMMENDATION 10: The Mayor should extend the remit of London & Partners so that they can promote London’s night time offer to Londoners

The Mayor’s responses to the recommendations have included:

• The Night Czar convening a quarterly 24-hour London delivery group at City Hall to assess the impact of policies on London at night

• The Night Czar and Night Time Borough Champions Network working together to produce guidance for boroughs to develop night-time strategies

• Creating a Night Time Data Observatory to build a full picture of the capital at night

• Reporting progress on the Commission’s recommendations as part of the Mayor’s Annual Report

• Creating a Night Time Enterprise Zone pilot scheme to help a borough develop its night-time offer

• Conducting research into the benefits of longer opening hours across London

• Championing partnerships across the capital that support the night-time economy and investing in the creation of the Safer Sounds Partnership

• Including guidance on improving public spaces at night as part of the work to develop borough night-time strategies

• Establishing a Late-Night Transport Working Group to ensure transport meets the needs of London’s night workers

• Continuing to support London & Partners in their work to promote the capital’s 24-hour tourism offer

In June the Mayor launched a bidding process to select a pilot Night Time Enterprise Zone, as well as establishment of the Safer Sounds Partnership, led by the music industry and part of the Safer Business Network, aimed at developing better liaison between venue operators and event organisers with police and council licensing teams, together the night czar (see his 7 June 2019 press release).

On 10 September 2019, the Mayor announced that Walthamstow High Street had won the bidding process to be London’s first Night Time Enterprise Zone. According to the Mayor’s press release:

The pilot, which runs from October to January, will see Waltham Forest try out a range of proposals for the high street, including:

 

•          Offering entrepreneurs low-cost and flexible business spaces to hire in the evenings

•          Establishing a new fund to help business and community groups host events after 6pm

•          Running a ‘shop local late’ campaign

•          Hosting a ‘reclaim your high street event’ with activities for all ages

•          Creating a step-by-step guide for night-time businesses to help them apply for planning and licensing approval

•          Encouraging late shopping with a new evening map and events listings

•          Encouraging local people and night-time workers to have their say on how to make Walthamstow work better for them after 6pm.”

I would be interested to hear how all this going. There is relatively little on line – and no sign yet of the “step-by-step guide for night-time businesses to help them apply for planning and licensing approval”.

The draft London Plan has policy HC6 (“supporting the night-time economy”):

HC6

• Boroughs should develop a vision for the night-time economy, supporting its growth and diversification, in particular within strategic areas of night-time activity (see Table A1.1 and Figure 7.7), building on the Mayor’s Vision for London as a 24-Hour City.

• In Development Plans, town centre strategies and planning decisions, boroughs should:

1. promote the night-time economy, where appropriate, particularly in the Central Activities Zone, strategic areas of night-time activity, town centres, and where public transport such as the Night Tube and Night Buses are available

2. improve inclusive access and safety, and make the public realm welcoming for all night-time economy users and workers

3. diversify the range of night-time activities, including extending the opening hours of existing daytime facilities such as shops, cafés, libraries, galleries and museums

4. address the cumulative impact of high concentrations of licensed premises and their impact on anti-social behaviour, noise pollution, health and wellbeing and other impacts for residents, and seek ways to diversify and manage these areas

5. ensure night-time economy venues are well-served with safe and convenient night-time transport

6. protect and support evening and night-time cultural venues such as pubs, night clubs, theatres, cinemas and music and other arts venues.

• Promoting management of the night-time economy through an integrated approach to planning and licensing, out-of-hours servicing and deliveries, safety and security, and environmental and cleansing services should be supported. Boroughs should work closely with stakeholders such as the police, local businesses, patrons, workers and residents”

But how effective is this in the short-term, given how long it will take for the policy to be reflected on borough plans/licensing policies, and the various planning policies at all levels (national, London-wide and borough) that point in potentially conflicting directions?

I would be interested to hear how joined up, or not, boroughs’ planning and licensing strategies are, in practice, at present. Operating hours for a development will often for instance be set down in planning conditions, only for a different set of hours to be set out in the eventual premises licence – or detailed operating strategies required which should be the domain of the licensing process.

The formal procedures and statutory criteria to be applied are certainly very different.

The Home Office’s guide to alcohol licensing under the Licensing Act 2003 covers the three types of licence required, namely

“ •any business or other organisation that sells or supplies alcohol on a permanent basis needs to apply for a premises licence

• anyone who plans to sell or supply alcohol or authorise the sale or supply of alcohol must apply for a personal licence

• qualifying members’ clubs (such as the Royal British Legion, working men’s clubs and rugby clubs) need to apply for a club premises certificate if they plan to sell or supply alcohol

The DCMS guide to entertainment licensing, sets out the licensing process required, since the coming into force of the Live Music Act 2012, for:

• “anyone that provides any entertainment between 11PM and 8AM;

• anyone that provides amplified live or recorded music to an audience of more than 500 people;

• anyone that provides recorded music to an audience on premises not licensed for the sale or supply of alcohol;

• anyone that puts on a performance of a play or a dance to an audience of more than 500 people, or an indoor sporting event to more than 1,000 spectators

• anyone that puts on boxing or wrestling

• anyone that screens a film to an audience

The Home Office has published guidance (April 2018) as to how licensing authorities are to discharge their functions.

There are four licensing objectives:

• The prevention of crime and disorder;

• Public safety;

• The prevention of public nuisance; and

• The protection of children from harm.

The guidance goes on to explain that “the legislation also supports a number of other key aims and purposes. These are vitally important and should be principal aims for everyone involved in licensing work. They include:

• protecting the public and local residents from crime, anti-social behaviour and noise nuisance caused by irresponsible licensed premises;

• giving the police and licensing authorities the powers they need to effectively manage and police the night-time economy and take action against those premises that are causing problems;

• recognising the important role which pubs and other licensed premises play in our local communities by minimising the regulatory burden on business, encouraging innovation and supporting responsible premises;

• providing a regulatory framework for alcohol which reflects the needs of local communities and empowers local authorities to make and enforce decisions about the most appropriate licensing strategies for their local area; and

• encouraging greater community involvement in licensing decisions and giving local residents the opportunity to have their say regarding licensing decisions that may affect them.“

Each licensing authority must publish a statement of its licensing policy at least every five years. Here, by way of example, is Camden’s statement of licensing policy 2017 – 2022, with much detail as to its expectations of operators, examples of licensing conditions for different kinds of venues and framework hours. How many of us, or our clients, get involved in this process?

Licensing applications are publicised and consultations take place with the police and other bodies. Contested applications are likely to go to a hearing before a licensing sub-committee, with appeals heard by the Magistrates’ Court.

A practitioner recently explained to me some of the differences that he sees. For instance:

⁃ a premises licence is automatically granted where there are no objections. Imagine the planning system working like that!

⁃ the grant of a premises licence is a material consideration in the determination of a planning application, but not vice versa.

⁃ there is a greater focus at premises licence hearings on evidence of actual, rather than potential, impact.

⁃ There is ongoing regulatory control as to a premises licence – not a once and for all event in the way that the grant of planning permission is.

⁃ Licensed premises form only a small part of planning officers’ workload (especially outside central London) and there can be little knowledge of the detailed ways in which the licensing regime works, often leading to a “belt and braces” approach.

Fair points?

A House of Lords Select Committee considered the operation of the 2003 Act licensing regime in an April 2017 report.

One of the Select Committee’s main areas of focus was whether the licensing and planning regimes should be better integrated:

In our call for evidence we asked: “Should licensing policy and planning policy be integrated more closely to shape local areas and address the proliferation of licensed premises? How could it be done?” An overwhelming majority of respondents criticised the current lack of coordination between licensing and planning, and thought that there should be better integration. We were given numerous examples of the absurdities caused by the separation of the systems, especially for applicants for new premises which need permission for both planning and licensing, and for whom permission for one without the other is of no use.

This example given to us by the London Borough of Hounslow is just one illustration:

“One recent problem is a restaurant who built a structure in their garden without planning permission. Planning permission was subsequently applied for and refused. There was fierce opposition to the structure from local residents and in our view the concerns of the residents were valid. The owners have also applied for a premises licence which includes the structure. Planning could not object because the regimes are supposed to be separate and the licence was subsequently granted with restrictions. We now have a situation where the planning permission is refused and the licence is granted. Residents have commented on their confusion and the premises licence holder has received an approval and a refusal for the same structure from the same local authority.”

Their conclusion was: “The whole process is confusing for our residents and we would support a change in the position so that planning permission can be considered when determining licence applications.”

The Select Committee concluded:

If, as we think, it is not only permissible but logical to look at licensing as an extension of the planning process, it would have been sensible for the Licensing Act to transfer the powers of licensing justices to the planning committees of local authorities, rather than set up a new and untried system of licensing committees with a new and different procedure, new staffing, and a new appellate process. Instead the result has been that each local authority has been able to deal with all aspects of land use through a planning committee with the single exception of licensed premises, which require a separate committee and a separate mechanism. Now that the system has been in operation for 11 years, we believe that this can be seen to have been a mistake and a missed opportunity.

We recognise that a suggestion that licensing committees should be abolished and their work amalgamated with that of planning committees is a radical one. It is not a change which should be made without first being trialled over a small but representative sample of local authorities over perhaps two years.”

The Government pretty much rejected the recommendation out of hand in its August 2017 response:

“While the Government rejects some recommendations and conclusions, there are several recommendations which are a spur to further work, particularly in respect to how the system of licensing can be made to function more effectively and the lessons that can be learned from the planning system.”

We accept that improvements could be made in some local areas and that the synergies between planning and licensing should be part of an ongoing discussion about how we can support local improvements. Instead of transferring the functions of licensing committees to planning committees, we are focusing on improving training and providing stronger guidance on how licensing hearings should be conducted.

The basic structures of the planning and licensing system are similar and our focus will be on improving how the two regimes communicate and interact at local level. There is good practice in many local areas that we will disseminate and build on, for example whether there is additional support that local residents could be given to frame and present their concerns about a licensing application to the committee effectively.”

Will this separation hold firm? Is it sensible for statements of licensing policy to be prepared separately from local plans? Is it sensible for licensing and planning matters to be dealt with by different committees and sub-committees? Is this efficient and understandable both by potential users of the systems, by local authority officers and members, and by local residents? Is there another way of reconciling the desirability of encouraging the night-time economy with legitimate local concerns as to amenity?

You tell me.

Simon Ricketts, 30 November 2019

Personal views, et cetera

Detail from Port of London, Night by Maximilien Luce, 1894