Permission Quashed Due To PSED Failure

This year has seen a few cases that will have made developers and decision makers somewhat nervous as to the sheer variety of matters which may give objectors a basis for judicial review, depending of course on the facts in each situation and the reasoning set out for the relevant decision. After, for instance Rainbird (my 12 May 2018 blog post) and People Over Wind (my 20 April 2018 blog post) we now have what I think is the second example of a planning permission being quashed as a result of a local planning authority failing to comply with the Public Sector Equality Duty (“PSED”) within section 149 of the Equality Act 2010.

Section 149 provides as follows:

“(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.


(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—


(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
…..


(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.
…..


(7) The relevant protected characteristics are—
age;

1. disability;

2. gender reassignment;

3. pregnancy and maternity;

4. race;

5. religion or belief;

6. sex.”

In R (Buckley) v Bath and North East Somerset Council (Lewis J, 20 June 2018) the High Court quashed, on the basis that the PSED in section 149 had not been complied with, an outline planning permission which the local authority had granted for the development of part of the Foxhill Estate by the demolition of up to 542 dwellings and the provision of up to 700 dwellings.

Most of the properties on the estate are owned by a social housing provider, Curo Places Limited, with some properties being leased from other registered social housing providers and others being privately owned. There are currently 414 affordable homes on the site and these would be replaced by 210 affordable homes as part of the redevelopment.

The estate sits alongside the Mulberry Park development, for which planning permission had already been granted for up to 700 homes, including 210 affordable homes. Defined categories of tenants on the Foxhill Estate would be given priority for homes within Mulberry Park.

Whilst the environmental statement and other documents supporting the planning application dealt with socio-economic matters, and the officer’s report to committee also addressed the relevant development plan policy (H8, “affordable housing regeneration schemes”), there was no specific consideration of the PSED in relation to the impact on the elderly and the disabled of losing of their homes. In the circumstances, the relevant questions for the court to grapple with were

⁃ does the PSED apply at outline planning permission stage?

⁃ were PSED issues dealt with in applying policy H8, which had itself been the subject of an equality impact assessment?

⁃ were the issues considered in sufficient detail in any event to comply with the PSED?

⁃ even if there had been a breach, was it highly likely that the outcome would have been the same even without the breach?

The judge held that the duty does apply at outline planning permission stage. The fact that detailed issues, also raising equality considerations, would arise at reserved matters stage did not prevent the duty from arising.

It was not enough that policy H8 was “designed to address issues of equality in the context of affordable housing regeneration schemes which, necessarily, would or might include demolition of properties as part of the process of regeneration“. H8 was too general as a policy automatically to ensure that an application complying with policy H8 met the PSED.

In order to comply with the PSED, it was not essential for the report to committee to refer to it expressly:

In broad terms, the duty is a duty to have due regard to the specified matters not a duty to achieve a specific result. The duty is one of substance, not form, and the real issue is whether the relevant public authority has, in substance, had regard to the relevant matters having regard to the substance of the decision and the authority’s reasoning. The absence of a reference to the public sector equality duty will not, of itself, necessarily mean that the decision-maker failed to have regard to the relevant matters although it is good practice to make reference to the duty, and evidentially useful in demonstrating discharge of the duty.”

The judge found that on balance “the defendant did not in fact have due regard to the impact on the elderly and disabled persons of granting an application which might lead to the demolition of their existing homes…The defendant did not specifically address or have regard to the impact on groups with protected characteristics, in particular the elderly and the disabled, of the loss of their existing home. It may well be that not a great deal would have needed to be said on this matter. It may have been sufficient to draw that matter to the decision-maker’s attention and then the decision-maker could have decided whether the contemplated benefits of the proposed development did outweigh any negative impacts. Ultimately, however, I am persuaded there were matters relevant to the discharge of the public sector equality duty which the relevant decision-maker needed to have due regard to but which were not drawn to the decision-maker’s attention.”

As to whether it was highly likely that the decision would have been the same even if the duty had been complied with, the judge did not feel able to reach that conclusion. He noted that the proposal was controversial. “The ultimate vote was five in favour of the grant of outline planning permission and four against. There would be other options open for addressing the problems of the estate including re-furbishment rather than demolition. In all the circumstance, it cannot be said that it is highly likely that the outline planning permission would have been granted in this particular case if the breach of section 149 of the 2010 Act had not occurred.

As it happens, once the judicial review had been brought, Curo abandoned its demolition plans in favour of refurbishment of the estate and so the purpose of the proceedings was only to seek to ensure, as far as residents were concerned, that that the permission did not remain on the record and capable of implementation at a later stage. However, it still seems to me that the decision to quash was by no means inevitable on the facts. The case is certainly a warning to developers and local planning authorities to be scrupulous in taking into account the implications of proposals for those with section 149 protected characteristics.

The duty of course also applies equally to Inspectors and the Secretary of State in their decision making, as is demonstrated by what I suspect is the only other example of a planning permission being quashed due to breach of the PSED, namely LDRA Limited and others v Secretary of State (Lang J, 6 May 2016). In that case, a planning permission granted on appeal by an inspector for development on the banks of the River Mersey which would restrict access to the river side.

The judge noted that the site was “the only place in the area where public parking next to the river is readily available. The large car park is immediately beside the River Mersey, thus enabling disabled people and their carers to enjoy the river and the fine views across it, and to watch the activities of ships and smaller boats. Disabled people can remain in the car park area (which is built on two levels) or if they are sufficiently mobile, they can proceed a short distance to the riverside promenade (which forms part of the Wirral Circular Trail) either in a wheelchair or on foot. There was clear evidence before the Inspector from several sources that this car park, and the access which it gave to the river, was an amenity which was both regularly used and valued by disabled people (both adults and children with special needs).” She found that “there was a strong argument, based on the written and photographic evidence, that disabled people with impaired mobility would find it very difficult or impossible to go down to the riverside if the development is built because (a) they would be parked too far away; and (b) the footpath down to the riverside, and back up, would be too steep for disabled people and their carers to manage.”

She concluded:

Applying the legal principles set out above, I have concluded that the Inspector did not have due regard to the duty under section 149 in this case. In particular, because of the lack of any detailed consideration of the value of the existing amenity to disabled persons (including, for the immobile, being able to sit in the car and look at the river); the lack of any other comparable amenity in the Birkenhead area; the practical difficulties which would be experienced by persons with restricted mobility and their carers in descending and climbing the steep footpath to the riverside; and the apparent failure to consider whether the loss of the car park would not be merely “less convenient” for disabled persons but might well mean that they would be unable to access the riverside at all. If the Inspector was not fully appraised of the relevant information, he was under an obligation to seek the information required. The statutory equality duty was not mentioned in the planning officers’ report, nor in the Inspector’s decision. Of course, the Inspector could comply with the duty without specifically referring to it. But there is no indication in the decision that the Inspector considered the factors set out in section 149, and tellingly there is no reference, express or implied, to the statutory considerations of removing or minimising disadvantages suffered by disabled persons, and taking steps to meet the needs of disabled persons. I consider it is likely that the Inspector overlooked section 149 in reaching his decision, and thus made an error of law”.

The permission was quashed.

Of course the PSED does not just arise in the context of the determination of planning applications and appeals but generally in the exercise of functions by public authorities (as well as in the exercise of public functions by non-public bodies).

It will be recalled that at first instance (albeit overturned on appeal in Secretary of State v West Berkshire District Council (Court of Appeal, 11 May 2016), Holgate J had quashed the written ministerial statement on minimum affordable housing contribution thresholds and the vacant building credit, partly on the basis of breach of the PSED, given that a disproportionate number of those with protected characteristics were in need of affordable housing, which he did not find had been sufficiently taken into account in the Government’s decision. The Court of Appeal disagreed, holding that a “relatively broad brush approach” in the equality statement accompanying the WMS was sufficient.

Breach of PSED was also an unsuccessful ground of challenge in the recent judicial review of the Mayor of London’s affordable housing and viability SPG, brought by a group of retirement housing companies (McCarthy & Stone Limited and others v Mayor of London (Ouseley J, 23 May 2018). The judge gave the complaint short shrift:

Mr Warren’s attack is only on one narrow aspect of s149, where he raises a very particular point about the effect of the SPG on the provision by the Claimants of specialist accommodation for the elderly to buy, and hence on those whose protected characteristics could be affected. That point is not actually grappled with in any of the equalities assessments. But the basis for that in Mr Burgess’ evidence ultimately concerns the financing arrangements of the Claimants. “Due regard” for s149 purposes, does not require all possible ways in which someone may be affected, including in this indirect way, to be considered. Still less does it do so when it has not been raised and explained to the degree necessary. It is a very indirect consequence, and not something which one would expect a planning authority to be aware of unless specifically told. “Due regard” does not require an encyclopaedic examination of all the ways, not by any means obvious, in which an equality effect might be argued to arise.

Ms Peters has also explained that she did not accept that the sort of problems which Mr Burgess described were soundly based or significant for the sector. She was entitled to come to that view, and in so doing to conclude that there was no impact of significance to be considered or which had been omitted.

Even if criticism can be made of the form in which the fulfilment of the PSED duty is recorded, and even if there was a point which could have been considered in the course of having “due regard”, I find it impossible to consider that the outcome of its consideration could have been different in view of the rejection by the GLA of the factual basis upon which the Claimants’ rely. It is not for me to resolve that issue. The GLA view is not unreasonable.”

Whilst all cases of course turn on their facts, the Buckley judgment (which incidentally does not cite West Berkshire, McCarthy & Stone or indeed LRDA) does appear to take a tougher stance in relation to the need for proper compliance with the PSED (the facts in LRDA are certainly more stark). The lessons must surely be to ensure that developers and decision makers give specific, careful, consideration as to the potential implications of any project for those with section 149 protected characteristics, implications which may not be immediately obvious, and to ensure that the implications are expressly taken into account in decision making.

Simon Ricketts, 22 June 2018

Personal views, et cetera

Photo credit Bath Newseum

Long Players: Time & Money

Is there more that can be done to encourage timely resolution of issues that arise at planning application stage?

Two prompts for this blog post:

1.Provectus Remediation Limited v Derbyshire County Council (Sir Wyn Williams, 8 June 2018), which considered the circumstances in which an applicant for planning permission is entitled to a full fee refund if the application is not determined within 26 weeks.

2. The Secretary of State’s Lotmead Farm, Swindon decision dated 13 June 2018 to accept his inspector’s recommendation to award the local authority its costs against the appellant for unreasonable behaviour in relation to two appeals – on the basis that the appeal process had been used to “evolve the schemes“, contrary to the Planning Inspectorate’s procedural guide (the Secretary of State having dismissed the appeals in a separate decision letter of the same date).

Planning application refunds

In our ridiculous legislative patchwork you need to look at the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013 which amended the 2012 Regulations from 1 October 2013 so as to introduce, as Regulation 9A, the right for an applicant to have its application fee refunded “in the event that the local planning authority fail, or the Secretary of State, in relation to an application made under section 62A of the 1990 Act fails, to determine the application within 26 weeks of the date when a valid application was received by the local planning authority or the Secretary of State, as the case may be.

Regulation 9A (2) provides that the right does not apply where “the applicant and the local planning authority, or, in the case of an application under section 62A of the 1990 Act, the Secretary of State, have agreed in writing that the application is to be determined within an extended period“, the application has been called in, is the subject of an appeal or of judicial review.

In the Provectus case, the claimant had submitted its planning application on 14 September 2014, paying an application fee of £44,000, withdrew the application and resubmitted the application on 22 December 2015 (no additional fee payable due to Regulation 9 of the 2012 Regulations), which was registered by the local planning authority on 25 January 2016. Further environmental information was requested by the authority in April 2016, which was provided (following an extension of time requested by the claimant) in July 2016. On 3 August 2016 the authority requested an extension of time for determining the application and an extension to 7 November 2016 was agreed. Further environmental information was then sought by the authority during the period, the claimant’s agent agreed to that and then was replaced by another agent, which no longer agreed to provide the information, arguing that it had in part already been provided and in part was unnecessary. In December 2016 the claimant appealed on the basis of non-determination and in March 2017 requested that the authority refund the fee.

So in short, a real mess but unfortunately not an unusual sequence of events. From a limited knowledge of events gained solely from the account in the judgment, I would guess that neither side particularly smelt of roses.

The claimant judicially reviewed the decision of the authority to refuse to refund the application fee. The authority took the position that Regulation 9A (2) disapplies the right where the applicant and authority have agreed an extended period for determining the application. The claimant argued that this should not be the case if the application is not then determined within the agreed extended period. To assist their respective stances, both parties’ counsel sought to rely on different parts of the explanatory memorandum that accompanied the 2013 Regulations.

Wholly unsurprisingly, the judge rejected any purposive interpretation:

A refund of a fee paid at the time of a planning application should be made only if a period of 26 weeks has elapsed from the receipt of a valid application and that application has not been determined by the local planning authority. In my judgment, if the applicant and the local planning authority agree in writing that the 26 week period should be extended the planning fee paid by the applicant does not fall to be refunded even if the local planning authority fails to determine the application within the extended period.”

So the claimant did not recover its £44,000 and now faces not only a costs bill from its own lawyers but liability to pay the authority’s costs in relation to the litigation.

The case does highlight a few things:

1. Don’t forget about the right to a refund.

2. Take it into account in your decision making as to whether to agree a time extension.

3. The Regulations plainly risk giving rise to perverse incentives: (1) it is so much safer for an authority if it can agree an extension of time, after which it is not at risk of a fee refund however poor its performance and (2) canny applicants may decline to agree time extensions where an application is running into the sand.

I did wonder to myself why the argument wasn’t made by the claimant that at least 26 weeks had already passed between the submission of a valid application in December 2015 and the agreed time extension but I assume that this wouldn’t have worked given that the formal request under the EIA Regulations for further environmental information would have had the effect of stopping the clock running until the information had been provided and/or that the agreed extension of time for providing that additional environmental information may have itself disapplied Regulation 9A? As ever reality is more complicated than legislation envisages.

Using the appeal system to “evolve” a scheme

Where there is lack of engagement on the part of a local planning authority, what real remedy is there aside from an appeal? And yet Annexe B of the Planning Inspectorate’s procedural guide seeks to encourage resolution of issues before an appeal has been submitted, reflecting the advice in the Planning Practice Guidance:

Before making any appeal the party seeking permission should first consider re-engaging with the local planning authority to discuss whether any changes to the proposal would make it more acceptable and likely to gain permission. It is possible that a further planning application may be submitted without charge. However, this will depend on the circumstances of each case, so parties should ask the local planning authority for further details.”

Annexe M of the PINS procedural guide states:

M.2.1 If an appeal is made the appeal process should not be used to evolve a scheme and it is important that what is considered by the Inspector is essentially what was considered by the local planning authority, and on which interested people’s views were sought.

M.2.2 Where, exceptionally, amendments are proposed during the appeals process the Inspector will take account of the Wheatcroft Principles when deciding if the proposals can be formally amended. In the ‘Wheatcroft’ judgment22 the High Court considered the issue of amendments in the context of conditions and established that “the main, but not the only, criterion on which… judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation”. It has subsequently been established that the power to consider amendments is not limited to cases where the effect of a proposed amendment would be to reduce the development.

M.2.3 Whilst amendments to a scheme might be thought to be of little significance, in some cases even minor changes can materially alter the nature of an application and lead to possible prejudice to other interested people.

M.2.4 The Inspector has to consider if the suggested amendment(s) might prejudice anyone involved in the appeal. He or she may reach the conclusion that the proposed amendment(s) should not be considered and that the appeal has to be decided on the basis of the proposal as set out in the application.”

The position in which the developer found itself at the Lotmead Farm appeals was that it had sought pre-application advice from Swindon Borough Council over a period from December 2013 to May 2015 in relation to a proposal for up to 2,600 homes together with associated development, on a site with a strategic allocation in the local plan. An application for outline planning permission for the whole scheme as well as an application for outline permission for an initial phase of 200 homes were made on 30 April 2015. The council made a series of requests for further information and for extensions of time. The council refused the applications on 30 June 2016 at a point where the developer was seeking to resolve or at least narrow the issues.

After submitting appeals against the refusals the developer then made a series of amendments to the proposals to seek to address the reasons for refusal. At a pre-inquiry meeting the developer indicated the scope of the amendments that would be made and that an ES addendum would shortly be publicised. The inspector postponed the inquiry to allow participants in the inquiry to have sufficient preparation time. The amendments apparently were then more significant than had been identified. The changes included an additional 2 form entry primary school, an increase in the red line area, changes to the transport proposals, to all of the parameter plans and to the illustrative masterplan and green infrastructure parameter plans. “Moreover, over the following months additional amendments and information were submitted by the appellant and corrections were made to submitted documents“. The ES addendum entailed six of the topic areas being superseded.

In his report on the appeals, the inspector sets out the amendments in detail before stating at paragraph 10.14:

In conclusion, the amended schemes are very significantly different to those determined by the Council and have evolved considerably during the course of the appeals. To use the appeal process in this way is contrary to Procedural Guidance and does not sit comfortably with the Wheatcroft principle. There are no exceptional circumstances to justify this approach. No specific case of prejudice has been highlighted but compliance with the Procedural Guidance is the best way to ensure no-one is disadvantaged through the appeal process.”

She considered that it was appropriate to consider the appeals on the basis of the originally submitted proposals, although (since the appeals had been recovered for the Secretary of State’s own determination) she considered the proposed revisions in detail as well in case the Secretary of State took a different approach. She recommended that the appeals be dismissed, whether or not the revised proposals were considered.

In his decision letter, the Secretary of State accepted the recommendation that the revised proposals should not be considered:

13. The Secretary of State has given careful consideration to the Inspector’s analysis at IR10.1-10.15. The Secretary of State has taken into account that all parameter plans and the illustrative masterplans were amended (IR10.6). The Secretary of State has further taken into account that the ES also was substantially reviewed, with six of the topic chapters being superseded. The Secretary of State has further taken into account at IR10.7 that further amendments were made including proposals for access, surface water management, trees and landscaping. For the reasons given at IR10.6-10.7, the Secretary of State agrees with the Inspector at IR10.7 that the evolution of the proposals results in an overall very considerable change to the schemes and to the quality of the supporting information.

14. For the reasons given at IR10.6-10.7, the Secretary of State agrees with the Inspector at IR10.8 that the amended schemes are not the schemes determined by the local planning authority in June 2016 and on which interested people’s views were sought (IR10.8). The Secretary of State agrees with the Inspector that the narrowing of the areas of dispute was of assistance to the efficient running of the inquiry but was carried out very late in the day. He further agrees that the approach adopted by the appellant during the course of the appeals has not been in accordance with procedural guidance (IR10.8).

15. As such, the Secretary of State agrees with the Inspector at IR10.9 that the changes to the proposals in the Masterplan and the Phase 1 appeals are sufficiently material that consultation on the amendments would be essential.

16. The Secretary of State has taken into account the Inspector’s conclusions on consultation at IR10.10-10.13. The Secretary of State agrees with the Inspector at IR10.14 that the amended schemes are very significantly different to those determined by the Council and have evolved considerably during the course of the appeals. He further agrees that to use the appeal process in this way is contrary to procedural guidance and does not sit comfortably with the Wheatcroft principle and there are no exceptional circumstances to justify this approach; and agrees that no specific case of prejudice has been highlighted but compliance with the procedural guidance is the best way to ensure no-one is disadvantaged through the appeal process (IR10.14). He concludes, in agreement with the Inspector, that the appeals should be determined on the basis of the original proposals (IR10.15).”

A separate report and decision letter addressed an application for costs that was made by the borough council. The inspector recommended that a full award of costs be allowed:

Unreasonable behaviour resulting in unnecessary or wasted expense, as described in the Planning Practice Guidance, has been demonstrated in that:

• appeals were made on the original schemes when there was no reasonable prospect of success, and

• the appeal process was used to evolve the schemes, which was contrary to Procedural Guidance.”

She noted that if amendments to the proposals had been pursued through another application “there would be a greater probability of compromise on both sides, outside of the adversarial appeal process. The normal development management process has been avoided.”

The Secretary of State agreed.

Perhaps here the circumstances were exceptional but I do worry whether this is the right direction for the planning system to be heading in – although I appreciate that the Government and the Planning Inspectorate would prefer a clean, front-loaded appeal process that is only used as a last resort. If anything may conceivably focus a local planning authority on resolving matters with an applicant, it is the risk that its position may come under scrutiny at inquiry. I do not know if this was the case at Lotmead Farm but sometimes it is impossible to ascertain what the authority’s position is, or what changes to a scheme may be considered acceptable. If the developer has to wait for a refusal notice and start again with a further application before appealing, without the ability to bring matters to a head by way of the appeal and changes made as part of the appeal process, appealing becomes increasingly impractical as an option (and the authority knows it).

Of course there has to be a limit to the scale of any amendments made at the appeal stage. But as long as the amendments are fully consulted upon is there really such a problem if they improve the scheme and ensure that permission can be granted by the inspector or Secretary of State rather than a further application being required? Not only do we now have an appeal process that is increasingly slow, we have a process that is increasingly impractical in relation to complex schemes, where interation is inevitable and surely no bad thing.

At least through its appeal, notwithstanding not achieving permission and having an expensive adverse award of costs against it, the Lotmead Farm developer did manage to narrow various issues with the authority and third parties, and secure detailed comments from the inspector on various elements of its proposals, some negative, some negative, but sufficient presumably now to form the firm basis for a further application. The inspector even identified a series of elements of the section 106 package that did not comply with regulation 122 and which presumably will not be included next time round (which will save a substantial sum). It is just a shame that there is not the ability to secure, more nimbly, equivalent independent expert input during the application stage itself so as to resolve differences – rather than tie everyone up in a slow, expensive and adversarial process.

Simon Ricketts, 15 June 2018

Personal views, et cetera

Judicious Review?

It’s the examination season: daughter, university finals; son, A levels; me, asked by a journal for my thoughts on the interim report published by the Raynsford Review (Planning 2020: Interim report of the Raynsford review of Planning in England May 2018). I’m sharing my first thoughts with you so please set me right, because I really don’t want just to write a piece damning the whole process with faint praise.

I wrote a blog post on 28 August 2017, Another Review when the review was announced, instigated by the Town and Country Planning Association “to identify how the Government can reform the English planning system to make it fairer, better resourced and capable of producing quality outcomes, while still encouraging the production of new homes.”

The review’s chair, Nick Raynsford, is the right person for the role. His professional life inside and outside Parliament has focused on planning and housing issues.

However, I was sceptical as to the governmental appetite for further significant reform of the planning system and queried the role of any recommendations without endorsement from the major political parties. That scepticism increased when the next month the Labour party announced its own review of the planning system (see my 30 September 2017 blog post Mending The Planning System (Has Anyone Tried Switching It Off And On Again?). I also queried the role of any fundamental review of the planning system outside any wider political vision:

The planning system is a machine, big cogs, little cogs, to deliver the government of the day’s social, economic and environmental objectives. Unless the review is just to be about process, what objectives are to be assumed in framing recommendations?

Turning to the interim report published last month. It’s all to play for because a “final round of feedback” is sought by 16 July 2018.

The 71 page document is strong on the evolution of the modern planning system from 1947, previous reviews and on summarising the current system. It recounts the numerous public events and meetings held by the review team and the 197 submissions of evidence received, before setting out seven “emerging policy themes“, nine “basic questions which define the direction of reform” and, provisionally, nine “propositions for a new planning system“.

So we have (each accompanied in the document by explanatory text):

Emerging policy themes

• the degree to which the current system is delivering on
its objectives;

• how much power spatial planning should have
(positive and negative);

• how the balance of planning powers should be
distributed between central and local government;

• the right spatial structure for planning, including local
government structure and boundaries;

• the degree to which communities should have
meaningful control over their own local environment,
and the nature of community rights; and

• issues of betterment and fair land taxation.

Basic questions which define the direction of reform

What is the justification for a spatial planning system in

a market economy?

What is purpose of a spatial planning system, and how should this be expressed?

What should the scope and powers of the spatial planning system be?

What should the governance arrangements for these structures and institutions be, and what role, and how much power, should there be for the citizen in decision-making?

What are the basic outcomes that people can expect from the planning process?

Can we simplify the legal structures of planning?
What institutional structures are required to support

spatial planning?
What taxation or charging measures are necessary to

deal with the economic impact of land use regulation?

What sorts of skills, practice and culture do planners

need to support the system?

Propositions for a new planning system

Proposition 1: Planning in the public interest

Proposition 2: Planning with a purpose

Proposition 3: A powerful, people-centred planning system

Proposition 4: A new covenant for community participation

Proposition 5: A new commitment to meeting people’s basic needs

Proposition 6: Simplified planning law

Proposition 7: Alignment between the agencies of English planning

Proposition 8: A fairer way to share land values

Proposition 9: A new kind of creative and visionary planner

The conclusion of the analysis in the work so far is that planning is “at a historically low ebb“. It is in a worse state than it has been for 75 years and that “the last thing that is needed is more short-term tinkering with the nuts and bolts. Instead, what is required is a deep and hard look at the fundamentals – what should be the purpose of planning, how can it best be structured to deliver the outcomes that the country needs, and how can all parties be engaged most constructively in the process?

You begin to see the breadth and ambition of the project. But if wholesale change is to be prompted by a process that is not sponsored by government or government-in-waiting, there is a huge job of work to be done by the review panel between now and the final report, which is to be published in the Autumn for the party conferences.

First, avoid generalities. Set out with quantified evidence why and where the planning system is not delivering. What detailed points were made in the responses and do they reflect the views of all participants in the planning process?

Secondly, bring the issues to life. The interim review in tone is part academic, part old-fashioned tub-thumping, empty of people, empty of place. If you want to see how to do it, read The Secret Barrister’s devastatingly detailed critique of the modern criminal justice system.

Thirdly, set the problems and gripes that we have with our planning system in context. The planning system may appear at times and in places to be on its knees, or dysfunctional in the way that it operates. But in comparison with areas of public administration, whisper it quietly, it may not be so bad. I have mentioned the criminal justice system, but the health service, benefits, the rating system even (having just read Jerry Schurder’s 8 June 2018 blog post What we could learn from the rest of the world – if only the Government was interested). I have practised under every iteration of the planning system since 1985. If there was a golden age, it was before then I assure you. And yet, by and large, outcomes are fair (if slow), people have their say, development happens or doesn’t happen. Let’s also set our system in an international context – how is our English system performing as compared to the rest of the United Kingdom or Europe?

Fourthly, recognise and reflect on the inherent contradictions. The interim report talks of giving the public a greater say in decision-making but then of a new commitment to meeting people’s basic needs such as the right to a home and of the “deployment of modernised Development Corporations to deal with particularly demanding issues such as flood risk, economic renewal, and population change“. It talks of simplified planning laws but then of a four tier system of neighbourhood, local, regional and national alongside development corporations and of new interventions to share land values.

Fifthly, give appropriate emphasis to the need to encourage the production of new homes, specifically referred to in the remit of the review. So far I see little in the interim report that would give that encouragement. Indeed, the document strongly criticises the current permitted development right to convert office uses to residential, without any detailed analysis of whether the disbenefits do indeed outweigh the benefit acknowledged in the report (between 86,665 and 95,045 units delivered between 2010 and 2017).

Sixthly, explain how we are going to get from here to there. The document reports the planning system as having “been in an almost constant state of flux over the past decade and a half” but how would we reform the system to Version Raynsford without equivalent upheavals? And if we assume that there is no prospect of wholesale change within the shelf life of the report, what might be less ambitious, but still helpful, interventions?

Seventhly, acknowledge that the next ten years will see enormous changes, whether economic-political (Brexit, possibly), social (how we live, work, shop) and technological (spatial implications but also the changes that plantech will bring to the very processes of planning and public engagement).

In the meantime, utopian thinking shouldn’t deflect us from events which may have more immediate implications.

First, Sir Oliver Letwin’s build-out review is continuing at pace. It is looking to “explain the significant gap between housing completions and the amount of land allocated or permissioned in areas of high housing demand, and make recommendations for closing it”. Sir Oliver has indicated that he will publish “analytical work by the end of June in the form of a Draft Analysis. This will contain only a description of the problem and of its causes

Secondly, MHCLG will be publishing this month a consultation paper in relation to further potential widening of permitted development rights. The review panel won’t enjoy that I’m sure.

Thirdly, practical thinking continues on land value capture. Commons HCLG Committee on Land Value Capture held an oral evidence session on 4 June 2018 (read the transcript) with a further session on 11 June at which the TCPA’s Hugh Ellis (who should take huge credit for the work that he has put into the Raynsford review process) will appear, alongside others including lawyers Barry Denyer-Green, Stephen Ashworth and Vicky Fowler.

Fourthly, the Labour party continues to announce policy reviews, most recently in April, Housing For The Many.

All of this is interesting of course (and, despite my carping, the Raynsford interim report is an impressive and illuminating piece of work) but until there is a very different political climate (with the time and power to think about big, complicated changes for the public good – and even then town and country planning should take its place in the queue), we plainly will need to carry on making the best of the current system. It creaks, but it isn’t broken. Of course, at the very least, consolidation of the legislation would be helpful, but at present even that seems an impractical dream.

Views?

Simon Ricketts, 9 June 2018

Personal views, et cetera

Community Benefits

The road to the High Court is paved with good intentions. Who doesn’t want development to deliver all manner of gains to a community? But at the planning application or appeal stage, the developer and decision maker need to be clear in their thinking as to whether each commitment made is material to the decision-making process and, if documented by way of section 106 agreement, meets the statutory tests.

This piece was initially prompted by the High Court’s ruling in Good Energy Generation Limited v Secretary of State (Lang J, 25 May 2018) and the earlier ruling of the Court of Appeal in R (Wright) v Forest of Dean District Council (Court of Appeal, 14 December 2017), which is now heading to the Supreme Court.

I then saw this piece in the Standard on the way home last night which got me thinking as to how blurred the lines are in all of this.

As you might expect, the position is dealt with in a more upfront way in the United States, where the practice has grown up of developers negotiating “community benefits agreements” with local communities to build support for, or at least reduce opposition to, major development projects. There is a good paper published by the New York City Bar, The Role of community benefit agreements in New York City’s land use process (8 March 2010). The scope of the agreements referred to, in relation to projects such as Hudson Yards and the relocation of the Mets and Yankees stadia, sounds remarkably similar to many English section 106 agreements but the agreements are negotiated direct with the communities affected. An additional complication does of course arise as to determining which groups should be included in the negotiation, as well as to how the agreement is to be enforced, but for good or bad the process does not appear to lead to the intellectual agonising engaged in by our courts as to whether particular commitments are or are not to be taken into account in the decision making process.

The traditional position in England, Scotland and Wales is represented by the Supreme Court’s judgment last year in Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited (25 October 2017):

“A planning obligation, which required as a pre-condition for commencing development that a developer pay a financial contribution for a purpose which did not relate to the burdened land, could be said to restrict the development of the site, but it would also be unlawful. Were such a restriction lawful, a planning authority could use a planning obligation in the context of an application for planning permission to extract from a developer benefits for the community which were wholly unconnected with the proposed development, thereby undermining the obligation on the planning authority to determine the application on its merits. Similarly, a developer could seek to obtain a planning permission by unilaterally undertaking a planning obligation not to develop its site until it had funded extraneous infrastructure or other community facilities unconnected with its development. This could amount to the buying and selling of a planning permission.”

Furthermore:

The inclusion of a policy in the development plan, that the planning authority will seek such a planning obligation from developers, would not make relevant what otherwise would be irrelevant.”

(For further detail see my 28 October 2017 blog post Aberdeen: Supreme Court, Planning Obligations).

However, that traditional position is now overlaid, in England and Wales, with the additional restriction contained in regulation 122 of the Community Infrastructure Levy Regulations 2010, which provides that a “planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—
(a) necessary to make the development acceptable in planning terms;
(b) directly related to the development; and
(c) fairly and reasonably related in scale and kind to the development.

The two most recent cases that examine the appropriateness of developers’ commitments as to benefits for the local community both involve wind farm projects. That’s probably no surprise because, against the background of frequent local hostility, the Government has encouraged promoters to bring forward community benefits packages (see for example the 2014 DECC guidance, Community Benefits from Onshore Wind Developments: Best Practice for England). The PPG also encourages “community led renewable energy developments” and “community based initiatives“. However the principles from the case law of course apply equally to all types of development.

R (Wright) v Forest of Dean District Council (Court of Appeal, 14 December 2017) considered the “issue of whether, on an application for development proposed to be undertaken by a community benefit society, a proposed donation to the community of a proportion of the turnover derived from the development is a material consideration.” In that case, which concerned a scheme for a single community-scale 500kW wind turbine, it was “proposed that the turbine would be erected and run by a community benefit society, and the application included a promise that an annual donation would be made to a local community fund based on 4% of turnover from the operation of the turbine over its projected life of 25 years, to be achieved by way of a condition that the development be undertaken by such a society with the donation as part of the scheme.” The commitment was not to be delivered by way of section 106 agreement (and so regulation 122 was not relevant) but by way of a condition requiring that the development be undertaken by a community benefit society, details of which were to be provided to the authority prior to commencement.

The local planning authority took that commitment (which looks a pretty loose one to me!) into account as a material consideration in granting planning permission. A local resident challenged the decision on the basis that it was not a material planning consideration. Dove J upheld the challenge and the local planning authority and promoter appealed to the Court of Appeal.

In front of the Court of Appeal, counsel for the local planning authority and the promoter both “accepted that, on a planning application, it would be unlawful for a planning authority to take into consideration a donation to a community benefit fund by a commercial wind farm developer, because such a donation would not be a material consideration. For similar reasons, they accepted that an authority could not require such a donation as a planning obligation, whoever the developer might be. However, they each submitted that the circumstances of this case, notably the voluntary donation derived from a community-led project and made to benefit the community, were materially different“.

Hickinbottom J disagreed, commenting as follows:

where a financial contribution that is not a material consideration is put forward as part of an application for proposed development, it is sometimes said that that is an attempt to “buy” planning permission. In my view, that terminology (or even more pejorative terms such as “bribe”) is generally unhelpful. In respect of materiality, the proper focus is upon the Newbury criteria. No matter how well-intentioned the proposed donor might be (and I accept that, here, Resilient Severndale is well-intentioned), and no matter how publicly desirable such a donation might be (and I accept that, here, the proposed community benefit fund would benefit the community), such a donation will not be material for planning purposes unless it satisfies those criteria.

As I have indicated (paragraph 28(ii) above), a planning purpose is one which relates to the character or use of the land. It is proposed that the donation by the developer here will be put into a community benefit fund, administered by local people for the benefit of the community, but without any other restriction, e.g. a restriction to use it for a planning purpose. I have set out some of the beneficiaries of the similar fund set up in respect of the St Briavels Wind Farm (see paragraph 22 above). I accept that all these are worthy community causes, but the provision of waterproofs for young people, and lunch for older people, do not seem to address any obvious planning purpose. As Dove J found (at [48] of his judgment), “beyond being of some benefit to the local community, as recognised or defined by the local people administering the fund, there is no limitation on how the money might be used”.

He concluded:

In my view, for the reasons I have given, Dove J, who referred to and applied the relevant authorities, was right to proceed on the basis that the nature of the community benefit fund donation, and the vehicle it was proposed would provide it, were not such as to preclude examination of the contributions associated with it to see whether they satisfied the legal requirements of being a material consideration in the planning decision. He was entitled to conclude that “the community donation is an untargeted contribution of off-site community benefits which is not designed to address a planning purpose” (see [55] of his judgment). He was also entitled to conclude that there is “no real connection between the development of a wind turbine and the gift of monies to be used for any purpose which appointed members of the community consider their community would derive benefit” (see [56]). Indeed, he was in my view, undoubtedly right to draw such conclusions: and to conclude that, consequently, the Council was not entitled to take into account as a material consideration the offer of the community benefit fund donation made as part of Resilient Severndale’s proposal, as it did.”

That case will ultimately be considered by the Supreme Court, so watch this space. In the meantime, the High Court last month handed down its judgment in Good Energy Generation Limited v Secretary of State (Lang J, 25 May 2018). Here, an appeal had been dismissed by the Secretary of State (following the recommendations of an inspector) in relation to the proposed development of a wind farm in Cornwall. The promoter challenged the decision on two grounds but for present purposes I am only focusing on the first ground, namely:

The Claimant submitted that, in assessing the planning balance, the Secretary of State and the Inspector erred in law in disregarding the benefits offered by the Claimant in a unilateral undertaking made under section 106 TCPA 1990, as these were material considerations, which were not excluded by regulation 122 of the CIL Regulations 2010.

In summary, the main benefits offered by the Claimant were:


i) financial contributions to a community benefit fund;
ii) a community investment scheme open to local residents; and
iii) a reduced electricity tariff, open to local residents.

The Claimant’s pleaded case was that all three of these community benefits were material planning considerations. They were for a planning purpose since they furthered the Government’s legitimate planning policy objectives of encouraging local community involvement in renewable energy schemes and providing positive local benefit from renewable energy development. They also complied with specific aspects of local development plan policy. Furthermore, the benefits were directly related to, and derived from, the use of the land for the operation of the development.

However, after the claim was issued, the Court of Appeal decided in R (on the application of Peter Wright) v Forest of Dean District Council & Resilient Energy Serverndale Limited [2017] EWCA Civ 2102 that the local planning authority had erred in taking into account a proposed donation to the community (4% of turnover) from the operators of a wind turbine development as a material consideration weighing in favour of the grant of planning permission. It did not serve a planning purpose, nor did it fairly and reasonably relate to the development proposed.

In the light of the decision in Wright, at the hearing before me, the Claimant abandoned its challenge in respect of the community benefit fund, but continued with the challenge in respect of the community investment scheme and the reduced electricity tariff scheme open to local residents.

The Claimant further submitted that, in applying regulation 122 of the CIL Regulations 2010, the Inspector and the Secretary of State failed to exercise their planning judgment in deciding whether or not the obligations were “necessary” on the facts of the case. If they did exercise their planning judgment, they failed to give adequate reasons for their conclusions.”

The community benefits set out in the section 106 agreement included:

“(a) a £5,000 per megawatt of installed capacity community benefit contribution to be paid into a community benefit fund;
(b) a community investment scheme open to local residents; and
(c) a reduced electricity tariff, also open to local residents
.”

Lang J set out the case law and stated that the tests in regulation 122 are “more stringent than the common law tests“. She found that “the inspector and the Secretary of State were entitled to conclude, in the exercise of their judgment, that no weight could be attached to the local tariff and the community investment scheme in determining the appeal as they were not material considerations which complied with regulation 122 of the CIL Regulations 2010.”

She rejected any suggestion that the local tariff (amounting to at least a 20% reduction in electricity bills, funded by the community benefit fund) could be said to be a community-led initiative within the meaning of the PPG: “the local tariff was essentially an inducement to make the proposal more attractive to local residents and to the local planning authority. The scheme was not necessary to make the development acceptable in planning terms under regulation 122 of the CIL Regulations 2010.

She found that the terms of the community investment scheme were uncertain. The section 106 unilateral undertaking simply committed the developer to its establishment within six months of first generation.

The lack of any specific details, combined with uncertainty about the scheme’s commencement and long-term future, meant that the connection between the benefit and the development was remote and uncertain, rather than real.

…It was merely a potential investment opportunity“.

What lessons do we draw?

There is nothing at all wrong with developers making commitments to deliver community benefits. However, be careful to ensure that these are only taken into account in decision making if they are material planning considerations and meet the strict requirements of regulation 122.

Can we do things differently? There is nothing to prevent developers negotiating community benefits agreements, perhaps labelled indeed as such, with communities as long as matters which are not material planning considerations are not taken into account in decision making (although I accept that the position can become pretty artificial, where committee members are asked for the sake of form in their decision making to close their eyes to what is plainly on offer).

At present section 106 agreement negotiations, particularly in relation to major projects, can become somewhat of a fudge, where it can be difficult to separate those commitments which are genuinely required to make the development acceptable from those which are required in practice to secure political and community acceptance. To the extent to which regulation 122 has either introduced an additional JR trip hazard (as it has) or, through leading to caution on the part of promoter and authority alike, discouraged commitments to what would have been worthwhile public benefits, better for all, is regulation 122 causing more harm than good?

Finally, the way in which all of this to be reported to committee will be tidied up as and when section 155 of the Housing and Planning Act 2016 is brought into force, in that “financial benefits information” will need to be included in officers’ reports, including “a list of any financial benefits (whether or not material to the application) which are local finance considerations or benefits of a prescribed description, and which appear to the person making the report to be likely to be obtained” by the authority or third parties within a description to be prescribed, as a result of the proposed development, together with “in relation to each listed financial benefit, a statement of the opinion of the person making the report as to whether the benefit is material to the application” as well as any other prescribed information about each listed financial benefit.

Whether or not section 155 is brought into force, this approach would be a useful discipline and may provide a safer basis for developers who do indeed for a range of reasons (reputation, securing quality outcomes in the longer term, building support and reducing suspicion with local communities and, in some cases such as renewable energy, shale and major transportation projects, seeking to address the perceived unfairness of expecting one community to take all of the adverse effects of development for the wider good) wish to deliver community benefits without unnecessarily adding to the risk of judicial review.

Simon Ricketts, 2 June 2018

Personal views, et cetera

So Who Did Win The SPG JR?

Isn’t it heartwarming when the opposing parties in litigation all claim to have won? He said wryly.

Ouseley J’s judgment in McCarthy & Stone Retirement Lifestyles Limited, Churchill Retirement Living Limited, Pegasus Life Limited and Renaissance Retirement Limited v Mayor of London was handed down at 10.30 am on 23 May.

The Mayor rapidly issued a press release that morning, Judge rules in favour of Mayor’s threshold approach to housing.

However, the subsequent press releases by McCarthy & Stone Judge rules in favour of retirement consortium’s judicial review of the Mayor of London’s SPG and by Renaissance Retirement later that day seemed to tell a different story.

So that they can be checked for factual, typographical or grammatical errors or ambiguities, Planning Court judgments are usually issued in draft to the parties at least 24 hours ahead of being handed down, under conditions of strict confidentiality. Disclosure beyond the lawyers and parties themselves is a contempt of court and can bring criminal sanctions. However, what that advance sight does mean is that, by the time that the judgment is formally handed down (often with the parties not needing to be present and with submissions about remedies, costs orders and so on dealt with separately by email), the parties have got to grips with the often complex analysis within it and are ready to influence the way in which the narrative appears in traditional and social media, particularly the breaking online news items in the specialist press.

Planning law can be difficult in its abstractions and it can take time and strong coffee to arrive at a full understanding of the implications of a judgment (particularly without a familiarity with the evidence presented and submissions made to the court). This blog always includes links to the judgment transcripts because, however detailed the summary, there is no substitute for reading the document itself, but even then it can be hard. All credit to Holgate J in Parkhurst for appending parts of the inspector’s report to provide readers with the necessary context, but that was still a complex judgment (there have been some glib summaries!) and always of course watch for the political spin (Cheshire East Council’s “Cheshire East wins landmark legal judgement for residents in fear of housing sprawl” press release, following its loss in the Supreme Court in Suffolk Coastal , with ultimately an award of costs against it, being a classic of the genre!).

Back to the case in hand. So who really did win?

The claimants are all developers of specialist housing for the elderly. Their main concern with the Mayor’s 2017 affordable housing and viability SPG was that their schemes, usually on small sites, are caught by its requirement for a late stage viability review but were not caught under the adopted London Plan, which refers to the mechanism in the context of schemes which “in whole or in part…are likely to take many years to implement“.

[I summarised the SPG in my 20 August 2017 blog post 20 Changes In The Final Version Of The London Mayor’s Affordable Housing & Viability SPG. (Warning: the Mayor of London’s SPGs are not subject to the same legal regime that applies to local planning authorities in preparing SPDs, summarised in the first part of my 1 December 2017 blog post What’s For The Plan, What’s Supplementary?)]

The claimants’ evidence was that they developed smaller sites – “usually brownfield, higher build costs, significant communal facilities and spaces which were not for sale – making them more costly per square metre than most market housing, and particularly so in London. These schemes were constructed in a single phase, and could not meet affordable specialist housing accommodation requirements on-site, as had been accepted for years; they always provided viability appraisals to justify off-site contributions to affordable housing, and always had to be completed as a whole before any elderly occupiers moved in; they had a markedly slower selling rate. This made the Claimants less able to compete with general house builders in site acquisition.”

Their evidence was that “the acute pressures, on the viability of specialist housing schemes, made it essential that the risk of the development’s returns falling significantly below expectations was reduced to a minimum. They relied on various forms of borrowing to fund site purchases. The standard but notional 20 percent development return used in such appraisals was the bare minimum “on the basis that the risk associated with the affordable housing cost is known…If there is a risk that [that] cost might rise significantly, the risk profile becomes unacceptable….” Mr Warren emphasised that it is the risk which matters when deciding on what price to pay for a site. And it is that extra risk which Mr Burgess said affected them more than those in the general market. The effect of the late stage review was felt by the Claimants at the stage of bidding for the sites in the first place; the uncertainty about the amount of money which might have to be paid over at the late stage review affected the calculation of risk for borrowing, in such a way as to make the funding impossible.”

The judge made no ruling as to whether these concerns were justified and they were not accepted by the Mayor but this was the claimants’ explanation as to why the issues mattered to them.

[I note at this point that the proceedings were brought in the knowledge that the emerging new London Plan would in any event be proposing an equivalent late stage review mechanism. The parameters of that mechanism will no doubt be considered as part of the examination into the draft Plan (rumoured as likely to take place from November 2018 to February 2019)].

So the claimants’ objective plainly was to challenge that requirement for a late stage review of viability in relation to schemes like theirs which could not be said to be “likely to take many years to implement” (although the claimants sought to argue that it was single phase schemes that should not be caught).

In order to demolish that requirement, they contended that the SPG was unlawful and in so doing relied on three grounds:

(1) it constitutes policy which should only be in the London Plan, which is currently being revised; the SPG was also inconsistent with that Plan;

(2) the SPG is a “plan or programme” which required a Strategic Environmental Assessment, SEA, under the Environmental Assessment of Plans and Programmes Regulations, SI 2004 No.1633 but which had not been undertaken; and

(3) it was produced without due regard being had to the constituent parts of the public sector equality duty, PSED, in s149 Equality Act 2010.”

Ouseley J rejected grounds 2 and 3 as unarguable and I’ll say no more about them.

In relation to ground 1, Rupert Warren QC for the claimants first argued that the SPG contained policies which could only be within the London Plan itself, namely “the 35 percent threshold, the fast-track, and the viability tested route, with three viability appraisals, (initial, early stage and late stage), the deliberately slow-track.”, all of which are indeed now proposed as policy in the draft London Plan.

The judge largely sidestepped this issue: “I do not want this judgment to be misread as holding that the SPG, and at this level of detail, must as a matter of law be in the London Plan or alternatively that the SPG cannot lawfully be included in the Plan as policy“. He did not interfere with the Mayor’s decision to treat the matters as appropriate for an SPG.

He commented that whether the emerging policies that reflect those SPG requirements are appropriately strategic for the Plan will be a matter for the inspector to determine following his or her examination of it: “They may contain a level of detail for the control of negotiations in quite small forms of development, and larger non-PSI developments, which excludes them from s334, though I do not doubt that the levels of affordable housing developed on new housing sites, can be seen as a strategic matter. In particular, when the draft London Plan goes for public examination, the question of whether draft policy H6, which takes the SPG into the draft Plan, is “strategic” and “general” may be one on which the inspector after the examination in public expresses a view. I would not want what I say to resolve the content of the draft London Plan, in advance of any inspector’s consideration and report.”

Rupert Warren QC’s second argument under ground 1 was that the SPG was inconsistent with the adopted London Plan. The judge stated:

I am not prepared to hold that conflict with development plan policy of itself makes a non-statutory document unlawful. If it states that it is in conflict with the development plan because that plan is now out of date, for example because of changes in Government policy as might be found in the NPPF, or because the review of the Plan was delayed for proper reasons, I see no basis for it to be unlawful. The weight to be given to it is quite another in the light of s38(6), but the NPPF contains advice which conflicts with development plans up and down the country, and is not on that account unlawful. If an authority seeks to put forward some policy to cover the period when it is out of date, which could happen very quickly with new government policy, I see no reason to hold its actions unlawful. The plan-led system is supported by the proper application of s38(6), which can readily accommodate expressions of policy in conflict with the development plan. It does so often when a new draft plan is issued.”

So, inconsistency of itself does not lead to an SPG being unlawful. However, as identified by the judge:

Here the Mayor clearly did not intend to produce SPG in conflict with the London Plan, let alone to avoid the development plan process. The Executive Summary of the SPG at [4] states that it is “guidance to ensure that existing policy is as effective as possible…it does not and cannot introduce new policy.” Indeed, the consistency of the SPG with the London Plan was a theme of the Defendant’s response to Grounds 2 and 3, SEA and PSED. It is inherent in the concept of SPG that it purports to supplement and not to contradict development plan policy. In so far as he did produce SPG in conflict with the London Plan, he would have misdirected himself as to the meaning and effect of either the Plan or the SPG and so failed, in promulgating it, to have regard to a material consideration. ”

So, inconsistency may well lead to an SPG being unlawful, if the policy-maker did not intend there to be any inconsistency, as was the case with this SPG.

Mr Warren is reported as pointing to two inconsistencies: “(1) the most important, is the introduction by the SPG of a late stage review to single phase sites where the London Plan only envisaged those for phased developments; (2) the adoption of a 35 per cent affordable housing on-site threshold at which no viability information was required, whereas the London Plan required each site to provide the maximum reasonable amount of affordable housing, which could be greater than 35 percent.”

The judge did not find that the 35% threshold was inconsistent with the adopted Plan (hence the focus of the Mayor’s press release!) but he did find there was inconsistency in relation to the requirement for a late stage review:

By contrast, the language of the London Plan does not permit the imposition of a requirement for all sites over 10 homes, of a specific requirement to produce at least three viability appraisals, and more if the phases so turn out. Nor does it permit it exceptionally. It permits it only where, in general, the timescale or scale of development means that it is likely to take many years to complete a phase or the whole.”

So, he found for the claimants on the issue which had led them to bring the claim in the first place.

The judgment indicates that he will now “hear submissions on the appropriate remedy, if any, for the inconsistency I have found to exist“. But it seems to me that whether the relevant parts of the SPG are formally quashed or not is neither here nor there – the effect of the ruling is that the Mayor cannot lawfully rely on the SPG in requiring a late stage viability review in relation to the sorts of schemes that they promote.

Of course, that may be a Pyrrhic victory. As the judge goes on to comment:

The status of SPG matters little now that the draft London Plan has been published and consulted upon, containing H6. Draft plans often are inconsistent with their predecessors and are given increasing weight as they progress, as outlined in the NPPF. Once the Mayor has considered the consultation responses to the draft Plan, the period for delivering which has expired, and has amended the Plan as he sees fit, it will have no lesser weight than the SPG. Giving some weight to draft policy which is inconsistent with the development plan is not uncommon. The NPPF contains material which is not consistent with developmental plans. The issue about the status and consistency of the SPG is not one of continuing importance.”

That may be so, but presumably the claimants went into the litigation with their eyes open, given the emerging draft London Plan. This will indeed be a temporary win if they do not persuade the inspector that late stage reviews are not appropriate in relation to smaller, usually single phased, schemes. But that will be an issue to be debated without pre-existing support in the form of the SPG.

Who won? The claimants on the point that I suspect they cared most about. The Mayor on the point that I suspect he cared most about: avoiding collateral damage from the proceedings, in the form of any wider adverse ruling on other matters such as the 35% threshold or the validity of the document as a whole.

Simon Ricketts, 26 May 2018

Personal views, et cetera

You’ve Been Frameworked!

By the Government’s 10 May deadline, over 20,000 responses were received to the draft revised NPPF, albeit apparently almost half of them duplicated campaign responses (for example the TCPA-led campaign to reinstate the express support for garden city principles that is in the current framework). The final version is expected in the week beginning 16 July. As many have pointed out, there surely is not enough time for any detailed consideration of all of that thinking, in the sliver of time between the initial process of collation and the final process of sign-offs and proofing?

Given that for development control purposes the policies in the revised framework will have immediate effect, perhaps it is as well if there are few surprises in the final version.

In England the 2012 NPPF has become a familiar (sometimes irritatingly vague) friend, but this is an appropriate point perhaps to remind ourselves of the peculiarities of the concept, born of the reforms introduced by the incoming coalition government in 2010, that swept away centrally approved regional spatial strategies and a mass of existing national policy statements and guidance, in the name of a Conservative version of localism as well as less prescriptive ways of working across local authority boundaries (the duty to cooperate, LEPs). The extent to which that system is or is not delivering is analysed well in this month’s interim report of the Raynsford Review of planning in England, but six years on we now take for granted the various oddities of the document, in that it is:

⁃ non-statutory – with no formal prescriptions as to its content or the procedure for its preparation and review – and with an uncertain formal status: in development control matters its principles are very much subsidiary to any relevant policies in an up to date development plan

⁃ determinedly non-spatial, with of course not a whisper of the “regional” word, not a whisper of where in the country growth might be more or less appropriate, or as to differences of approach in London and the core cities as opposed to rural communities- and, as a consequence of that lack of spatial policy making, the lack of any formal sustainability appraisal of policy options given that strategic environmental assessment requirements are not engaged.

⁃ devoid of top-down targets, in relation to housing numbers for example, which are left to percolate up from a myriad of contentious local plan processes, with until now no standardised approach as to any methodology for assessing local housing needs

⁃ not co-ordinated in any way with national economic or infrastructure investment priorities

⁃ immutable in the face of difficulties of interpretation and changed priorities, whilst shadowed by much more detailed planning practice guidance that has been subject to constant tinkering

⁃ despite its best intentions, relatively impenetrable I’m sure to non-planners.

I only practise in England. It is sometimes a shock to look at differing approaches being taken in other parts of the United Kingdom, as well as in Ireland. Whether as part of the NPPF or as a separate document, our unique choice is not to have any form of spatial plan for our country. Odd isn’t it?

Scotland

In Scotland, the National Planning Framework (NPF) is currently reviewed every five years and guides the preparation of Scottish planning policy, by setting out a strategy for Scotland’s spatial development and the priorities for that development. It is prepared pursuant to the Planning etc. (Scotland) Act 2006.

The current Planning (Scotland) Bill would have the effect of incorporating Scottish planning policy into the NPF, which would then only be reviewed every ten years, and thereby putting Scottish planning policy, in addition to the NPF, on a statutory footing. The NPF would become part of each local authority’s development plan

The Scottish Parliament’s Local Government and Communities Committee published its stage 1 report on the Bill on 17 May 2018, broadly supporting the proposals whilst seeking for the Scottish Parliament to be consulted on NPF changes and for the NPF to have a “clear read across to funding arrangements“.

The next version of the NPF, NPF4, is expected in June 2019, once the new arrangements have come into law. NPF3, “Ambition – Opportunity – Place”, was published in 2014. It is entirely different in character to the English NPPF, particularly in its spatial focus, and was the subject of detailed strategic environmental assessment.

Wales

The framework for Welsh land use planning policy comprises Planning Policy Wales (Edition 9, November 2016) supplemented by a series of Technical Advice Notes (TANs) and Minerals Technical Advice Notes (MTANs). There is also the Wales Spatial PlanPeople, Places, Futures, last updated in 2008.

The Welsh Planning Directorate has begun work on the production of a National Development Framework (NDF). The NDF will set out a 20 year land use framework for Wales and will replace the current Wales Spatial Plan.

Northern Ireland

Northern Ireland has its Strategic Planning Policy Statement for Northern Ireland -Planning for Sustainable Development (SPPS) (September 2015), published by its Department of the Environment, alongside its Development Strategy 2035 (March 2012), published by its Department for Regional Development.

The SPPS reflected the new tier-tier system which had been introduced, devolving various planning functions to local authorities whilst retaining for the Department of the Environment responsibility for regional planning policy, the determination of regionally significant and called-in applications, and planning legislation.

However, best laid plans and all that. Following the current dissolution (effectively since January 2017) of the Northern Ireland Assembly, its Departments have no minister in charge of them. As a result of the ruling of the Northern Irish High Court this month in the Colin Buick case, the full ramifications are now plain: absent a minister a Department is not in a position lawfully to exercise the powers specifically given to it.

In Buick, the decision of the Department for Infrastructure to grant planning permission for a major waste disposal incinerator, promoted by the Arc21 consortium of local authorities, was quashed:

“I have also noted the argument made in the papers that the delay in concluding a determination of the Arc21 planning application is impacting upon the implementation of public waste and environmental development at national, European and international level. However, the entire programme for government is on hold whilst the current impasse continues. This is extremely unfortunate. However, I do not consider that the exigencies of the current situation are an adequate justification for the course that has been taken. The commendable motivation and aims I refer to cannot override the proper construction of the statutory regime which this case requires.”

This presents a major constitutional and political dilemma. Until such time as the assembly can resume its work, how are significant decisions, both as to plans and projects, to be progressed in Northern Ireland? The Northern Irish planning system is currently broken, in a way which (for all the doom and gloom of the Raynsford review analysis) the English system is not.

Ireland

Finally, the Irish government has published its strategic planning and development framework, Ireland 2040, which comprises a national planning framework alongside its national development plan 2018 – 2027.

Its framework is very definitely spatial, unlike its 2002 predecessor document. The document refers to “…the situation that had arisen by the end of the 2000’s, when there was enough land zoned for a population of 10 million people in Ireland, but not located where required. We cannot continue with such a lack of focus.”

It directs the relative levels of growth it expects for its regions and its gestation has been far more controversial than has been the English draft revised NPPF, no doubt because it tackles difficult questions. There is a good summary of the document by Roger Milne in The Planner https://www.theplanner.co.uk/news/news-analysis-ireland’s-npf-sets-out-its-stall-on-joined-up-planning-and-development (19 February 2018). It will have a statutory basis once the Planning and Development (Amendment) Bill currently before the Seanad is enacted.

Lastly, it should be noted that there is a Framework for Co-operation – Spatial strategies of Northern Ireland and the Republic of Ireland (24 June 2010).

Back to England, with ad hoc national interventions and initiatives, seemingly little structured coordination as between on the one hand what the planning system can achieve and one the other hand any strategic approach to investment and funding, and reliance on many permutations of local alliances and forms of joint working. I certainly agree with many of the criticisms set out in Nick Raynsford’s interim report (whilst the direction and practicality of the solutions flagged may be open to question).

Let’s see how we get on shall we? Special, but determinedly not spatial.

Plans that either come to naught or half a page of scribbled lines

Hanging on in quiet desperation is the English way
The time is gone, the song is over
Thought I’d something more to say
.” *

Simon Ricketts, 19 May 2018

Personal views, et cetera

*Mason, Walters, Wright, Gilmour

All About That Base

Good planning relies on good baselines. Determining the correct baseline or fallback position is the vital starting point for determining the effects that a development proposal would have, but is not easy – often involving the need for judgment as to what can be done in any event without planning permission or what the position would be in any event in terms of, for instance air quality, highways movements or the effect on the level of daylight and sunlight that existing properties enjoy.

In Wiltshire Waste Alliance Limited v Secretary of State (Sir Ross Cranston, 10 May 2018), an inspector had granted permission on appeal for the extension of a waste recycling plant.

Before him the company’s case was that if the appeal was dismissed the appeal site would continue to operate pursuant to a series of admittedly complicated planning permissions which, in any event, would allow a significant number of uses. The appeal was advanced on the basis of these “no project” baselines being in existence. No other grounds were advanced for the grant of planning permission. Essentially the claimant’s case against the appeal was that these baseline activities were not in fact permitted under the permissions operating. Further, for practical reasons what was permitted was limited and in any event could not take place.

In his decision letter the inspector had identified that it was crucial to the proper determination of the appeal that the effects of generated HGV traffic on the highway network and air quality were calculated “on a precautionary basis and compared with any planning fall-back position from which realistic baseline positions are drawn. It is established law that for a fall-back position to be taken into account it must be legally possible with respect to existing permitted land uses and also likely to occur on available evidence.”

The planning permission for the existing facility did not include any condition restricting the amount of waste that could be treated, but the application for it had indicated a figure of up to 25,000 tonnes per annum for one area, whereas the fallback position being relied upon by the operator at the appeal had assumed that this could be increased to 75,000 tonnes without the need for planning permission. It argued that the 25,000 figure was no limitation (applying the I’m Your Man case, recently approved of by the Court of Appeal in Lambeth LBC v Secretary of State). The claimant argued that the inspector had not considered whether such an increase in the quantity of material treated would have amounted to a material change of use by way of intensification. Retired High Court judge Sir Ross Cranston accepted the claimant’s argument, but also determined, as had been conceded by the Secretary of State, that the inspector had also wrongly noted that the application document referring to the 25,000 tonnes figure had not been incorporated by reference into the permission. Sir Ross Cranston’s summary of the arguments and reasoning is brief. (In the light of the Lambeth case I don’t see how incorporation by reference of the application document is relevant.)

As well as meaning that the inspector had made a legal error in the way that he had considered the fallback position, the judge accepted that the approach that had been taken “has the potential to infect the conclusions regarding the baseline scenarios” for the purposes of assessment of likely significant environmental effects in the environmental impact assessment.

It is a cautionary tale – ensure that you can justify any fallback or baseline position that you rely upon.

Whilst it didn’t matter for the purposes of the judgment, I assume that the proposal was assessed under the 2011 EIA Regulations. The 2017 Regulations are more prescriptive. EIA now needs to include a “description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the development as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge“.

The more far-reaching and longer-term the effects of a project, the more complex the analysis ends up being, as can be seen from the Secretary of State’s decision dated 10 May 2018 to authorise the development consent order applied for by Transport for London in relation to the proposed Silvertown twin-bore road tunnel under the Thames (a scheme which also was promoted under the previous EIA legislation). The task of analysing what would be the position in terms of issues such as congestion and air quality is complex. There will be much focus on his conclusion on air quality effects in particular, namely that “greater weight needs to be placed on the impact of the Development on the zone [for the Greater Urban London area as a whole] rather than at individual receptors. The Secretary of States therefore places weight on the fact that whilst some receptors will experience a worsening in air quality as a result of the Development, overall the Development should have a beneficial impact on air quality and that the Development is not predicted to delay compliance with the [Air Quality Directive] in the timeframes that the Updated [Air Quality Plan], including the zone plan for the Greater Urban London area, sets out as being the quickest possible time.”

We have seen recently how assumptions as to air quality levels can be proved wrong in ways that are unexpected, such as the VW emissions scandal that threw into question the degree to which air quality levels would improve as newer vehicles replaced older ones on the road, or ways which are possibly less unexpected, such as the Government’s delayed compliance with the Air Quality Directive.

Accurate analysis is of course equally necessary with more routine non-EIA projects: that is, accurate analysis both in the relevant technical assessment, whatever it may be, and accurate analysis by the decision maker in taking it into account in reaching a decision. R (Rainbird) v London Borough of Tower Hamlets (Deputy Judge John Howell QC, 28 March 2018) was a recent example of a planning permission being quashed (that the council had granted to itself for an affordable housing development) because of incorrect conclusions being drawn from a report on sunlight and daylight issues, that in itself was held to be significantly misleading in a number of respects, both in relation to the relevant baseline position and in its analysis of compliance with the relevant BRE guidelines that had been incorporated into the council’s local plan. However, every case inevitably turns on its own facts and, as the judge identified, the threshold for challenge is high:

⁃ Baroness Hale in Morge v Hampshire County Council (Supreme Court, 19 January 2011: “reports obviously have to be clear and full enough to enable [members] to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves

⁃ Lindblom LJ in Mansell v Tonbridge and Malling Borough Council(Court of Appeal, 8 September 2017): “The question for the court will always be whether, on a fair reading of his report as a whole, the officer has significantly misled the members on a matter bearing upon their decision, and the error goes uncorrected before the decision is made. Minor mistakes may be excused. It is only if the advice is such as to misdirect the members in a serious way—for example, by failing to draw their attention to considerations material to their decision or bringing into account considerations that are immaterial, or misinforming them about relevant facts, or providing them with a false understanding of relevant planning policy—that the court will be able to conclude that their decision was rendered unlawful by the advice they were given.


Where the line is drawn between an officer’s advice that is significantly or seriously misleading—misleading in a material way—and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact.., or has plainly misdirected the members as to the meaning of a relevant policy… There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law…. But unless there is some distinct and material defect in the officer’s advice, the court will not interfere
.”

⁃ Section 31 (2A) of the Senior Courts Act 1981 provides that the High Court “must refuse to grant relief on an application for judicial review…if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred” unless it is appropriate to disregard this “for reasons of exceptional public interest.”

Simon Ricketts, 12 May 2018

Personal views, et cetera