simonicity

Get With The Project

The question as to “what is the project?” for the purposes of environmental impact assessment has been arising a lot since R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council (Court of Appeal, 7 February 2023), which I summarised in my 11 February 2023 blog post The Bridge To Nowhere Case. The facts in that case were stark but people have been worrying about how far to extrapolate the principle.

Perhaps this week’s ruling by the High Court in R (The Llandaff North Residents’ Association) v Cardiff Council (HHJ Jarman, 10 July 2023) may alleviate concerns.

Briefly, the Cardiff local development plan has allocated a large area north west of Cardiff for development, including at least 5,000 homes. Redrow Homes had been granted planning permission to build just under 6,000 homes on part of the allocation. To quote from the judgment:

“The application was accompanied by an environmental statement (ES) which stated that Dŵr Cymru had confirmed that the significant volume of foul sewage which would be generated by the proposal could be accommodated on its network, but a hydraulic modelling assessment (HMA) would be needed before the extent of infrastructure improvements and storm water removal from the network could be finalised. Outline permission was granted on the application in March 2017, condition 24 of which required a HMA to be approved.”

“Dŵr Cymru [the statutory undertaker with the responsibility of providing a sewerage system under the Water Industry Act 1991] in November 2021 submitted an application to build a pumping station to serve the developer’s proposal. This would comprise a pumping station at the north end of a large open space called Hailey Park to the east of, and on the banks of, the River Taff. The site of the pumping station is about 1Km away from the site of the developer’s proposed development. Also included in the application is a valve kiosk on the other side of the river. What is not included is a pipe under the river to connect the two, as Dŵr Cymru proposes to use permitted rights to construct it. The authority granted that application in September 2022.

At the same time, the authority granted an application made by the developer to discharge condition 24 after a HMA had been obtained. Two applications were made, because of re-design, and each was granted by the authority, the latest one in September 2022.

The claimant is an association of residents of Llandaff North, which adjoins Hailey Park to the east. With permission granted by Steyn J, it challenges both decisions of the authority to grant planning permission for the pumping station and to discharge condition 24.”

“The application was accompanied by a planning statement by Dŵr Cymru’s consultants, Arup, which stated that the need for the proposed development “derives from” the grant of planning permission for 6000 homes at Plasdŵr. Arup submitted a screening request in relation to the sewage scheme which was being provided for that development, recognising that it was “effectively part of” that development on the basis that it would provide that additional capacity needed “to serve the increase in the local population size.” Arup considered the proposed development to be listed as Schedule 2 development and identified several potential impacts, including to protected sites of international significance such as those located on the Severn Estuary, but did not consider the impacts to be significant.

The authority issued a negative screening opinion on the basis that the sewage scheme and the residential development are stand-alone projects, and gave several reasons. The two schemes would not be located on adjacent land. The former was being undertaken by Dŵr Cymru and the latter by the developer. The former was being undertaken not only to serve the latter but also other existing and potential developments in the area so that there was a functional relationship between the two but no functional interdependence. The former was considered to be the project for EIA purposes and did not exceed the thresholds set out in Schedule 2. Accordingly, the authority did not consider whether any potential impacts would be significant. A separate screening opinion was issued in respect of the pumping station, which mirrored that in respect of the sewage scheme.”

The claimant’s first two grounds of challenge were as follows:

“i) The authority failed to take into account that there is functional interdependence between the Plasdŵr development and Dŵr Cymru’s application and wrongly took into account that the pumping station will serve other developments in the area;

ii) The authority failed to consider an integral part of Dŵr Cymru’s proposal, namely a scheme to remove surface water from its network thus increasing its capacity for foul sewerage. So considered, the scheme as a whole would amount to Schedule 2 development under the Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017 (the EIA Regulations) requiring an environmental statement (ES)”.

So, we are back to the question of “what is the project?” Did the pumping station proposal require EIA because it was part of a larger project (the Redrow development) which had been the subject of EIA?

His Honour Judge Jarman summarised the caselaw:

“In R (Ashchurch Rural Parish Council) v Tewkesbury BC [2023] EWCA Civ 101, Andrews LJ, giving the lead judgment, said at [74] that the term “project” should be interpreted “broadly, and realistically”. At [80], she added that the identification of the project is based on a fact-specific inquiry.

What constitutes the project is a matter of judgment for the planning authority, subject to challenge on grounds of rationality or other public law error. Lang J in R (Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin) at [64] after a review of the authorities, identified four criteria against which that judgment may be made: (i) whether two sites are owned or promoted by the same person; (ii) simultaneous determination; (iii) functional interdependence; and (iv) stand-alone projects. These were cited with approval in Ashchurch at [81] as “a non-exhaustive list of potentially relevant criteria, which serves as a useful aide-memoir.”

These criteria were recently considered by Holgate J in R (Together against Sizewell C Ltd) v SSESNZ [2023] EWHC 1526 (Admin). At [73-4], he said:

“The weight to be given to them will depend upon the circumstances of each case and is a matter for the decision maker.

Interdependence would normally mean that each part of the development is dependent on the other, as, for example, in Burridge v Breckland District Council [2013] JPL 1308 at [32] and [42].“

At [70], Holgate J pointed out that an irrationality challenge presents a high threshold:

“The threshold for irrationality in the making of such a judgment is a difficult obstacle to surmount (see e.g. Newsmith Stainless Limited v Secretary of State for the Environment, Transport and the Regions [2017] PTSR 1126).

Although two sets of proposed works may have a cumulative effect on the environment, this does not make them a single project for these purposes. Two potential projects but with cumulative effects may need to be assessed, see R (Larkfleet Ltd) v South Kesteven DC [2015] EWCA Civ 887, Sales LJ (as he then was) at [36]…”

If I can pause there, the recent Sizewell case cited by HHJ Jarman was an interesting example of the courts’ regular attempts to avoid EIA becoming an impossible obstacle course. There the argument by the claimants was that the Sizewell C nuclear power project should be defined for the purposes of the Conservation of Habitats Regulations as encompassing proposals by Northumbrian Water Limited to provide the significant amounts of potable water required during the construction, commissioning and operational phases of Sizewell C

Holgate J had this to say:

“The claimant’s argument has much wider implications. The need for the supply of utilities such as water is common to many, if not all, forms of development. A utility company’s need to make additional provision so as to be able to supply existing and new customers in the future does not mean that that provision (or its method of delivery) is to be treated as forming part of each new development which will depend upon that supply. The consequence would be that where a new supply has yet to be identified by the relevant utility company, decisions on those development projects would have to be delayed until the company is able to define and decide upon a proposal. That approach would lead to sclerosis in the planning system which it is the objective of the legislation and case law to avoid (R (Forest of Dean (Friends of the Earth)) v Forest of Dean District Council [2015] PTSR 1460 at [18]).

By way of a side-bar on this whole EIA sclerosis question, we all of course also await the Supreme Court’s ruling in R (Finch) v Surrey County Council on the question of whether it was unlawful for a local planning authority not to require the environmental impact assessment for a project of crude oil extraction for commercial purposes to include an assessment of the impacts of downstream greenhouse gas emissions resulting from the eventual use of the refined products of the extracted oil. The hearing took place on 21 and 22 June and if you have a couple of days spare (maybe you are between projects), you can watch it all here. By way of reminder, this was the Court of Appeal’s ruling, dated 17 February 2022.

Back to the Cardiff case. What did HHJ Jarman conclude on the facts? He found that the council’s planning officer was entitled to deal with the issue in the way that they had. “The fact that the pumping station is needed for the Plasdŵr development does not mean that it will not also serve other existing and potential developments in the area, and the officer and the authority were entitled to have regard to those matters. The high threshold of irrationality in this approach has not been surmounted.”

This is a helpful reminder both of how extreme the facts need to be (as they were with the bridge to nowhere) in order for a decision maker not to be able to conclude that works are not an integral part of a larger project and of the reluctance of the courts to interfere with the planning judgment reached on such issues by the decision maker.

I hope that calms some nerves.

I’m not sure nerves will have been calmed at DLUHC by publication on 14 July 2023 by the House of Commons Levelling Up, Housing and Communities Committee of its Reforms to National Planning Policy report. Let’s just say that when it comes to the Government’s proposed reforms, the Committee has not been getting with the project…

More on the report’s findings from the rest of your social media I am sure.

Finally, I’ve reluctantly got with another project. Having decided not to use Twitter since last November, I have signed up with the Meta alternative, Threads. It’s not perfect but if it places real pressure on Twitter to retreat from the harmful changes made since Elon Musk acquired that company, so much the better. There are already plenty of familiar names on the Threads app and, if you can bear being subject to yet another mutant algorithm, it’s very easy to use (suspiciously similar to Twitter’s interface in fact). If you’re passing, I’m on it as @sricketts101.

Simon Ricketts, 15 July 2023

Personal views, et cetera

Euston We Have A Problem

I have been commuting into Euston station for over twenty years, experiencing increasing frustration: at the past we have lost; the future that we are losing, and at the tatty and graceless perma-temp arrangement we have today.

I’m not sure that this week’s Public Affairs Committee report, HS2 Euston (7 July 2023), has yet had the attention it deserves and I’ll come back to that. But first:

The past

The beauty of transport blog is good on the subject of the original 19th century station; see Lost Beauty #9: Hardwick’s Hall (the Old Euston Station, London, UK) with these wonderful images:

It must have been quite something.

But then so was the 1968 modernist version of Euston when it opened:

This 1968 British Rail brochure gushed with excitement at the wonders of the grill room, party catering room, “high class toilets with showers and baths” and underground car park, showing no regret for the previous building that had been swept away.

Since then, the modernist lines of the new station have of course long been lost by way of multiple interventions. It’s frankly a mess. And for the last few years, as you pull into the station by rail, to the right is a swathe of HS2 construction activity. If you walk out of the station towards Euston Square, via that unsignposted corridor past the left luggage place, through the door into the between the bicycle racks area, across Melton Street you have hoardings either side as you walk past where businesses have been acquired and demolished at the eastern end of Drummond Street – this really is HS2World.

Screenshot courtesy Google

The future

HS2 was going to be the future. Just as those in the 60s were seduced by the clean lines, the white heat of technology, the chance to wipe away the inefficiencies of the past, we were seduced by the idea of high speed rail, with Euston as its southern terminus.

From the Department for Transport’s March 2010 High Speed Rail command paper (foreword by then prime minister Gordon Brown and then Secretary of State for Transport Andrew Adonis):

“… HS2 Ltd’s recommended route for a London-Birmingham high speed line (‘High Speed Two’), which would run from a rebuilt Euston station in London to a new Birmingham City Centre station at Curzon/Fazeley Street, is viable, subject to further work on reducing specific impacts on the local environment and communities.”

“…effective integration with London’s current and planned transport networks is crucial, and that this is best delivered through the combination of a Euston terminus and a Crossrail Interchange station sited between Paddington and Heathrow, which would also provide a link to the Great Western Main Line.”

“…the new British high speed rail network should be connected to the wider European high speed rail network via High Speed One and the Channel Tunnel, subject to cost and value for money. This could be achieved through either or both of a dedicated rapid transport system linking Euston and St Pancras and a direct rail link to High Speed One. HS2 Ltd will carry out further work to assess the viability and cost of each of these, including a full assessment of the business case, prior to any public consultation.”

From the coalition Government’s the Government’s January 2012 white paper, High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps:

“The HS2 Y network (so named due to its shape) will provide direct high capacity, high speed links between London, Birmingham, Leeds and Manchester, with intermediate stations in the East Midlands and South Yorkshire.”

“The network will also provide improved links from the Midlands and the North to Heathrow Airport and the Channel Tunnel (via the existing High Speed 1 line). HS2 passengers will be able to travel directly to Heathrow and the Channel Tunnel without having to change trains.”

“Having reviewed the options again the Government’s conclusion remains that Euston is the right site for a London terminus, best serving passenger requirements and offering greater access to alternative onward travel networks than either Old Oak Common or Stratford. Any terminus other than Euston would offer a worse overall balance of costs and benefits.”

These aspirations weren’t properly tested. The Supreme Court held in R (HS2 Action Alliance) v Secretary of State for Transport (22 January 2014) that the white paper was not subject to any requirement for strategic environmental assessment as it was not a plan that “set the framework” for subsequent decision making. This is still one of the most disappointing litigation outcomes of my career and indeed the court’s consideration of Parliamentary sovereignty versus the effect of EU Directives was a forerunner of much of the subsequent debate over Brexit. I’m not sure that Parliamentary sovereignty has helped us achieve a good outcome on HS2…

I re-read yesterday the House of Commons second reading debate (28 April 2014) in relation to what was at that point the High Speed Rail (London–West Midlands) Bill (short title: “A Bill to make provision for a railway between Euston in London and a junction with the West Coast Main Line at Handsacre in Staffordshire, with a spur from Old Oak Common in the London Borough of Hammersmith and Fulham to a junction with the Channel Tunnel Rail Link at York Way in the London Borough of Islington and a spur from Water Orton in Warwickshire to Curzon Street in Birmingham; and for connected purposes.”) . Patrick McLoughlin (now Lord McLoughlin) was Secretary of State for Transport:

“…it is time to connect great cities such as Birmingham, Manchester, Sheffield and Leeds. It is time for better links between north and south and between east and west, and time to connect to world markets to make the most of their skills and talents. It is time for HS2; time for a new north-south railway line.”

With the benefit of hindsight, the two “on the money” contributions to the debate were from MPs from different sides of the political divide, now both sadly deceased, but both superb representatives of their constituents and true Parliamentarians:

Cheryl Gillan, then Conservative MP for Chesham and Amersham, focused on the implications of the choices as to route and extent of tunnelling for the Chilterns area of outstanding beauty, alternative horizontal and vertical alignments having been rejected for reasons which in my view would not have stood up to proper independent scrutiny (I’ve already mentioned the lack of strategic environment assessment at the white paper stage; the other issue was the Select Committee process for testing the detailed proposals in the Bill – see my 30 July 2016 blog post, HS2: The Very Select Committee)

Frank Dobson, then Labour MP for Holborn and St Pancras, focused on the implications for the area surrounding Euston station:

“I should point out the ridiculous situation whereby the hybrid Bill before the House proposes major works in my constituency, none of which the Government now intend to carry out. The Bill also provides for a link from HS2 to HS1. That ridiculous proposal has been abandoned altogether. The Bill provides for the option 8 design of the station at Euston. That ridiculous proposal, we are told, is shortly to be abandoned, but the design, cost and construction timetable for the alternative to it have not yet been worked out, so there’s nowt to vote on.

The neighbourhoods to the east and west of Euston station and its railway approaches are densely populated with a variety of uses. Most of the streets are overwhelmingly residential. They are home to large numbers of residents living in high densities in settled and varied communities, with a wide range of incomes, housing tenures, jobs, ethnic origins and religions. Most of those residents want to continue to live there. They rightly resent patronising references to their neighbourhood by the much lauded chair of HS2 Ltd and have asked me to remind him and everyone else that where they live is not like the Olympic site. It is not a brownfield site, ripe for redevelopment.

The HS2 project as now proposed would wreak havoc on those neighbourhoods. It would expand Euston station by 75 metres to the west, demolish the homes of 500 people and subject 5,000 more to living for a decade next to the construction site or beside roads that will be made intolerable by the heavy goods vehicles servicing the main site and the 14 satellite construction compounds. No consideration has been given to the cumulative harm that all this would do to the quality of life of my constituents. The proposed working hours regime enables work to proceed at any hour of the day or night. Every little park and play space near the site is to be taken over. Small, locally owned and locally staffed businesses, especially cafes, shops and restaurants in Drummond street, face financial disaster. Between 40% and 70% of their business is passing trade from pedestrians going to and from Euston station, which, for the duration of the works—10 years—will be cut off by a solid, 3.6 metre-high security fence.

The people I represent believe that HS2 should not go ahead. Failing that, they believe that HS2 should terminate at Old Oak Common, at least temporarily, to test its capacity and permit the assessment of any capacity needed at Euston to be based on experience rather than the guesswork used so far.”

Of course the Bill was passed in due course. There have been successive plans unveiled for Euston Station and then effectively abandoned:

Department for Transport’s press statement, HS2 plans can unlock Euston potential (8 September 2015) unveiled Grimshaws’ “pringle” design.

Updated plans were then unveiled in March 2022 of a revised concept design by a design consortium made up of Arup, WSP, Grimshaw Architects, Haptic, and LDA Design, alongside HS2’s Station Construction Partner, Mace Dragados JV.

Despite nearly all of the disruption feared by Frank Dobson already having been caused by the construction works around Euston that are now well underway, Mark Harper, current Secretary of State for Transport, released a press statement on 9 March 2023, pausing new construction work at Euston for two years:

“The Government is prioritising HS2’s initial services between Old Oak Common in London and Birmingham Curzon Street to provide delivery of passenger benefits as soon as possible. We remain committed to delivering HS2 services to Euston, and will address affordability pressures to ensure the overall spending profile is manageable. We will therefore take the time to ensure we have an affordable and deliverable station design, delivering Euston alongside high-speed infrastructure to Manchester.”

There was then Transport minister Huw Merriman’s written statement on HS2 (19 June 2023)

“We remain committed to delivering HS2 services to Euston. We have decided not to proceed with construction at Euston over the next 2 years both to reduce expenditure during that period and to address the affordability challenge set out in the recent National Audit Office report. We will use this time to develop a more affordable scheme design that delivers for passengers, the local community and taxpayers.

The government will not be proceeding to construction on Phase 2a (West Midlands to Crewe) in the next 2 years to reduce expenditure. We will use the time to develop mature designs and delivery approaches to ensure that this section is delivered in the most cost-effective way.”

“As reported in the recent National Audit Office report on Euston, the latest proposed target price from the construction partner (Mace Dragados joint venture) is £4.8 billion – around £2.2 billion over HS2 Ltd’s budget and a higher cost than the previous design.

I visited the Euston site on 5 April 2023 and saw for myself the challenges of constructing a complex station in a dense urban environment that will integrate with the existing conventional station and London Underground and local transport, as well as enabling oversite development.

Nonetheless, the station is not affordable at this cost, nor in any case, does the government have the financial headroom to proceed with the construction over the next 2 years. We will, therefore, use the time to look again at the Euston station design to ensure it delivers for passengers, the local community and taxpayers. This will include considering how we might partner with the private sector to capture benefits for customers. It will require careful prioritisation of requirements and a willingness from stakeholders to compromise.”

It’s way over budget and they don’t know how to build it. And what delay do we think “two years” will turn into? Bodes well doesn’t it?

Which takes us to yesterday’s excoriating Public Accounts Committee’s report, HS2 Euston (7 July 2023).

Its summary:

“Despite being eight years into planning the High Speed 2 station at Euston, the Department for Transport (the Department) still does not know what it is trying to achieve with the station and what sort of regeneration it will support. It is clear now that the £2.6 billion budget HS2 Ltd set for the project was completely unrealistic, even before the impacts of inflation are considered. The Department will now need to reset the project for a second time in order to find a design that is realistic, affordable and provides value for money.

The Department does not know what the additional costs and impacts will be from its decision to pause construction at the station for two years. Working alongside HS2 Ltd, it now has a big task to identify what these costs and impacts are, including the impact on the supply chain and on local residents. It is essential for the Department to collect this information both to help it and HS2 Ltd manage the additional costs effectively and also to better inform any decisions in the future on whether to pause major projects.

Disappointingly, HS2 Euston station is yet another example of the Department making the same mistakes and failing to learn lessons from its management of other major rail programmes. Parliament has also not had the full transparency it needed on the likelihood of cost increases at Euston, despite the improvements the Department and HS2 Ltd have made in reporting on progress.”

My 27 November 2021 blog post Integrated Rail Plan, Unplanned? covered the downgrading of proposals to the north.

In the words of Johnny Rotten, ever get the feeling you’ve been cheated? This tax paying Euston commuter does.

Simon Ricketts, 8 July 2023

Personal views, et cetera

CG Fry: AA Post PP

CG Fry v Secretary of State (Sir Ross Cranston, 30 June 2023) is a difficult case with a perhaps unsurprising answer, although one that is disappointing to many.

I’ve often written about the ongoing problems arising from Natural England’s advice that in certain areas, due to potential harm to Special Areas of Conservation and Special Protection Areas by way of nutrients (nitrates or phosphates), water abstraction pressures or recreational pressure, schemes should not be permitted to proceed without demonstrating (through the local planning authority carrying out “appropriate assessment” under the Conservation of Habitats Regulations 2017), that there will not be an adverse effect on the integrity of the relevant protected area. See for example my 18 March 2022 blog post New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper).

The stage at which appropriate assessment is usually carried out is when an application for outline or full planning permission is being determined in circumstances where it is likely that the development will have a significant effect on an SPA or SAC. But one of the most frustrating aspects for developers about the introduction, usually without notice on the part of Natural England, of these controls is Natural England’s position, supported by the Government, that appropriate assessment is required even if planning permission has already been obtained and where what is being sought is reserved matters approval or discharge of a pre-commencement condition. I mentioned the problem in my 26 March 2022 blog post More On That Natural England Advice. As I said then:

“This of course cuts across the traditional planning law tenet that the planning permission stage is the point at which the principle of the development is determined to be acceptable, with subsequent approvals serving to define the detailed scale and disposition of development within the tramlines of what has been authorised by way of the permission. The authorities’ stance means that planning permission no longer gives any certainty as far as purchasers and funders are concerned and is a real impediment to market certainty and confidence. Who knows what equivalent restrictions lie ahead, after all? Even if your area is not affected at present, this should be of concern.”

I asked:

“Is anyone aware of this issue having been tested, on appeal or in litigation post 1 January 2021? Or is everyone being terribly British and waiting patiently for strategic solutions to be found to all of these neutrality issues before their reserved matters and pre-commencement conditions can be signed off? I suspect that some permissions will expire in the meantime. In my view this is not acceptable, or warranted, but am I a voice in the wilderness here?”

Well, the point now has been tested.

In CG Fry, outline planning permission had been granted for a residential development of 650 houses, community and commercial uses, a primary school and associated infrastructure. Reserved matters approval was secured. Natural England then published its advice to Somerset authorities on development in the Somerset Levels and Moors Ramsar Site, advising that greater scrutiny was required of plans and projects that would result in increased nutrient loads which may have an effect on SPAs, SACs and sites designated under the Ramsar Convention. CG Fry then sought to discharge various pre-commencement conditions but the Council withheld approval on the basis that an appropriate assessment was required before the conditions could be discharged. CG Fry appealed and the inspector dismissed the appeal. To quote from the judgment:

“He determined that it was legitimate to apply paragraph 181 of the NPPF to give the Ramsar site the same protection in all respects as a European site under the Habitats Regulations 2017. That was because the discharge of the conditions would be an authorising act, as part of the wider consent process, that would allow the realisation of potential effects on the Ramsar site which the Natural England advice note sought to manage. Considering the overarching nature of paragraph 181, this applied regardless of the specific subject matter of the conditions themselves: DL24-26. The Inspector considered that the grant of outline planning permission and reserved matters approval did not have an effect on the scope of any necessary appropriate assessment; the validity of the planning permission was not in question: DL41.

The inspector then determined that the requirement for an appropriate assessment in the Habitats Regulations 2017 applied to the discharge of conditions stage. He rejected the claimant’s argument that inclusion of specific provisions relating to the grant of planning permission, including outline planning permission, at regulation 70 of the Habitats Regulations 2017, did not diminish the applicability of regulation 63, which was simply a sweep up provision: DL44. Even adopting the claimant’s approach that the permission in relation to “consent, permission or other authorisation” in regulation 63 is the planning permission referred to in regulation 70, the concept of “other authorisation” was a broad one. The claimant’s approach would create loopholes counter to a purposive approach to the Habitats Regulations 2017: DL45-47.

As the competent authority, the Inspector said, he was unable to carry out the necessary appropriate assessment to agree the conditions: DL71. He said that he had considered the other relevant planning considerations, in particular the impact on housing delivery: DL72, 74. However, the unfulfilled requirement for an appropriate assessment was an issue of material significance: DL77. In other words he conducted the balancing exercise and concluded that in this case the delay in housing delivery was outweighed by the need to protect the Ramsar site.”

“The claimant’s case in general terms is that the effect of additional phosphate loading resulting from its proposed development was not a material consideration to the determination of the conditions at issue in the case. It was legally irrelevant because it fell outside the specific parameters of what the outline planning permission and the reserved matters approval had left over for consideration under these conditions. The material for the discharge of these conditions was satisfactory, and the only thing preventing their discharge was whether an appropriate assessment of the impact of phase 3 of the development on the Ramsar site from additional phosphate loading was required. There was no nexus between the conditions in relation to phosphates, even with the condition relating to waste water. Nor, on the claimant’s case, does the combination the Habitats Regulations 2017 and paragraph 181 of NPPF change that. The Inspector was wrong in his analysis and conclusions.”

“In broad terms ground 1 is firstly, that the Inspector wrongly construed the Habitats Regulations 2017 and should not have applied regulation 63, as he did, to the discharge of conditions on a reserved matters approval. Mr Banner KC contended that regulation 70 was the relevant provision, and it is confined to planning (including outline planning) permission.”

The judge rejected the ground: “While on a strict reading of the Habitats Regulations 2017 the assessment provisions of regulation 63 do not cover the discharge of conditions, in my view they do apply as a result of firstly, article 6(3) of the Habitats Directive, secondly, a purposive interpretation of their provisions and thirdly, case law binding on me”

“ Mr Banner contended that the Habitats Directive had no status in the UK legal system, except through regulation 9(3) of the Habitats Regulations 2017. The provisions of the European Union (Withdrawal) Act 2018 do not take the argument any further, he submitted, because there is no CJEU pre-existing case law which interprets the Habitats Directive as imposing a requirement to conduct an appropriate assessment at subsequent stages, such as the discharge of conditions on a reserved matters approval. He submitted that Harris concerned whether the claimed obligation under article 6(2) had been recognised by the court before Brexit, and it had. By contrast there is no CJEU or domestic case preceding exit day which supports the view that article 6(3) of the Habitats Directive can be relied upon to impose a requirement for an appropriate assessment at the discharge of conditions stage. Unlike Harris section 4(2)(b) of the Withdrawal Act 2018 is not engaged in this case given the absence of relevant pre-exit case-law.

In my view article 6(3) of the Habitats Directive continues to have effect in domestic law as a result of section 4(2)(b). Johnson J explained in Harris that the requirements of article 6(3) were accepted as binding by the CJEU in Waddenzee: [90]. Articles 6(2) and 6(3) of the Habitats Directive are closely related, so as to be “of a kind” with one another for the purposes of section 4: [91]. The demands of section 4(2)(b) are therefore met. The section is explicit that the recognition in the case law does not have to be by way of the ratio of a case “(whether or not as an essential part of the decision in the case)“.

“Consequently, the requirements of article 6(3) of the Habitats Directive remain part of UK law. That article requires that the competent authorities should not agree a project until an appropriate assessment has been undertaken and it shows that it will not adversely affect the integrity of a site. A planning consent is part of agreeing a project when it is necessary to implement a development. In this case the discharge of pre-commencement conditions was a necessary step in the implementation of the development. An appropriate assessment had not been undertaken up to that point, so consequently the Inspector determined that he could not discharge the conditions prior to one being undertaken. His conclusion was consistent with article 6(3) of the Habitats Directive.”

“Secondly, the Habitats Regulations 2017 demand a purposive interpretation so that the appropriate assessment provisions of regulation 63 apply to a subsequent consent stage including reserved matters applications and the discharge of conditions. A broad and purposive interpretation of the regulations flows from the strict precautionary approach which the CJEU has adopted to the assessment provisions of the Habitats Directive…”

“In my view Wingfield and Swire are authority for the proposition that an appropriate assessment can apply at the reserved matters or discharge of condition stage even if there has been a grant of outline planning permission where the subsequent approval is the implementing decision. There is support, as Lang J found in Wingfield, in the case law concerning the EIA multi-stage consenting procedure such as Barker. There, as we saw, Lord Hope recognised that a material change in circumstances could require an assessment at the reserved matters stage. It will be recalled that in Friends of the Irish Environment Ltd the CJEU stated that the meaning of “development consent” was relevant to defining the equivalent term “agree” in the Habitats Directive. All this is retained case law under the Withdrawal Act 2018 concerning the interpretation of the Habitats Directive and the Habitats Regulations 2017. That the facts in Wingfield and Swire were different is no basis for undermining the principle they established. The common law system would not survive if this were the case, since there will always be a variation, even if slight, in the facts of later cases. That does not preclude the continued application of principle.”

“The upshot is that the Habitats Directive and Habitats Regulations 2017 mandate that an appropriate assessment be undertaken before a project is consented. That is irrespective of whatever stage the process has reached according to UK planning law. The basal fact in this case is that neither at the permission, reserved matters, or conditions discharge stage has there has been an appropriate assessment. Application of the Habitats Directive and a purposive approach to the interpretation of the Habitats Regulations 2017 require the application of the assessment provisions to the discharge of conditions. The strict precautionary approach required would be undermined if they were limited to the initial – the permission – stage of a multi-stage process.”

Ground 2: “For the claimant Mr Banner contended that paragraph 181 of the NPPF did not enable the Inspector to take into account considerations which were legally irrelevant to those conditions.” [Paragraph 181 states that Ramsar sites should be given the same protection as SPAs and SACs].

The judge: “The impacts on the Somerset Levels and Moors Ramsar Site and paragraph 181 of the NPPF cannot be said to be irrelevant considerations in this development. The issue is the read-across of the Habitats Regulations 2017 to Ramsar sites as provided by the NPPF in circumstances where the Council’s shadow appropriate assessment shows that if the project if permitted it will cause harm to the Ramsar site.”

Ground 3: “Mr Banner submitted that even if regulation 63 applies to the discharge of conditions, it ought to be interpreted in such a way that the scope of the appropriate assessment reflects the scope of the conditions being considered. Thus, for example, in the context of an application to discharge a condition relating to root protection zones for trees, an appropriate assessment would concern any effects on site integrity arising from the range of choices the decision-maker has in relation to root protection zones, given the permission granted (and any conditions already discharged). The appropriate assessment would not consider the effects of the scheme as a whole on the habitat in question.”

The judge: “Regulation 63 requires an appropriate assessment to consider the implications of the project, not the implications of the part of the project to which the consent relates. […] As Mr Wilcox for the Council put it, the thing which is to be the subject of the appropriate assessment is the thing which will be permitted by the authorisation, so that where the decision is the final stage in granting authorisation for a development, it is the development which is to be assessed.”

It was a certainly an issue to be tested and, whilst Richard Moules and Nick Grant (for the Government) and Luke Wilcox (for Somerset Council) may have been on the winning side, well done to Charlie Banner KC and Ashley Bowes for arguing it (and to CG Fry for being prepared to put its head above the parapet). I hope Charlie won’t mind me quoting his subsequent LinkedIn post in its entirety:

“Judgment in CG Fry has been delivered this morning . Key headlines:

1) The Court agreed with the Claimant that on a natural and ordinary reading of the Habitats Regulations they do not require appropriate assessment at the reserved matters or discharge of conditions stages

2) However, CJEU case law to the effect that the EIA Directive’s requirements apply at the reserved matters stage was to be read across to the Habitats context and to discharge of non-RM conditions, as well as first instance domestic case-law upholding the legality of a *voluntary* AA at reserved matters stage.

3) This is an EU “obligation… identified by a court” pre-Brexit which is preserved by the EU Withdrawal Act 2018 ss4&6, because the direct effect of Article 6(3) of the Habitats Directive had been recognised by the CJEU pre-Brexit.

4) Therefore the Habitats Directive continues to apply directly and overcomes the natural and ordinary meaning of the Regulations.

The judge has indicated he is minded to grant permission to appeal his judgment and the parties are discussing the potential for a leapfrog appeal to the Supreme Court.

The judgment will present Department for Levelling Up, Housing and Communities with some challenges for any future legislative solution for the nutrients issue given the Court’s approach to considering whether s4 of the Withdrawal Act preserves post-Brexit the force of EU “obligations… of a kind recognised by a court “ pre Brexit. The Claimant said that this meant the Courts had to have recognised an obligation for AA at discharge of conditions stage, which they hadn’t. The judgment suggests that the relevant obligation is article 6(3) generally. The potential effect of this is that it will be open to anyone to apply to court to set aside legislation on the basis it is contrary to article 6(3) *even if based upon an interpretation of article 6(3) that hasn’t previously been made by the Courts*

The Home Builders Federation’s evidence to court was that 44,000 already consented homes in England are currently blocked because of this issue. The Land Promoters and Developers Federation has also been very active on this issue.

Watch this space!”

A final couple of wry comments from me:

If anyone voted for Brexit thinking that these sorts of problems would become a thing of the past, more fool them.

Let’s not forget that the root of much of the issues over neutrality – whether in relation to nutrients and water abstraction – is the appalling lack of investment on the part of the privatised water companies.

As the judge says at the beginning of his judgment: “In broad terms, this issue relates to the phosphate loading of protected water habitats, leading to eutrophication. This is caused by reasons including agricultural practices and under-investment in water infrastructure. There is a risk of the problem being exacerbated by water generated by new developments which contain phosphates, principally from foul water. The Home Builders Federation states that, due to the unavailability of mitigation options, this issue is holding up the building of no fewer than 44,000 homes in England which already have planning permission.” (my emboldening)

Until the CG Fry judgment landed this morning, I had been intending to pull together some wider thoughts on the implications for planning and the environment of the poor state of our privatised water industry, provoked by articles such as UK government looks at nationalising Thames Water as crisis deepens (FT, 28 June 2023) where delayed housebuilding, aka providing people with homes, is just part of the collateral damage.

Simon Ricketts, 30 June 2023

Personal views, et cetera

Pic courtesy Towfiqu barbhuiya via Unsplash

What Should We Call The Planning Version Of Trussenomics? And A Pox On The PEx PAX

Is the planning system now in a holding pattern until the general election? It certainly feels that way.

The consultation announced in December 2022 over proposed changes to the NPPF (see my 22 December 2022 blog post It Will Soon Be Christmas & We Really Don’t Have To Rush To Conclusions On This New NPPF Consultation Draft) led many authorities to delay or withdraw their local plans (see for instance Local Plan Watch: The 26 authorities that have paused or delayed their local plans since the government announced housing need changes (Planning Resource, 27 April 2023 (subscription)) and Delayed Local Plans (HBF, 27 March 2023)). The thought occurred to me this week when I was speaking with Peter Geraghty at a TCPA event (congratulations David Lock for your well-deserved Ebenezer Howard medal): if Trussenomics described the event that led to last Autumn’s economic crisis (the repercussions of which persist), what should be the word for that 22 December announcement?

Even if the policy thrust set out in the 22 December announcement was appropriate and worth some short-term process turbulence, it has already stalled. So, what really was the point (aside of course from its politically necessary signalling of capitulation to Conservative backbenchers’ concerns over the prospect of development taking place in their constituencies)? Consultation closed on 3 March 2023. The Government was to respond to the consultation and publish the revised NPPF in Spring 2023. There was then to be consultation on proposed changes to the rest of the NPPF and on more detailed policy options and proposals for National Development Management Policies (supported by environmental assessments), once the Levelling-up and Regeneration Bill had passed through all its Parliamentary stages shortly thereafter. But the Bill is still in the Lords. Lords Report Stage will be on 11 and 13 July. We then have the summer recess (Commons from 20 July, Lords from 26 July) and the Bill then needs to return to the Commons – so there is no prospect of Royal Assent before Autumn 2023. I can’t see how the LURB’s plan making reforms can be implemented this side of the general election.

And yet the Government criticises local planning authorities – and indeed developers – for not getting on with things….

In the meantime, we have little flutters of activity, the latest being Michael Gove’s endorsement this week of a paper published by Policy Exchange (the Government’s de facto policy incubation hub), Better Places: A Matrix for Measuring & Delivering Placemaking Quality, which is an exercise to see whether determining the quality of place making can be reduced to a “universal tool capable of measuring how successful developments will be, (or are) at placemaking for the very first time.”

“The Placemaking Matrix contained within this paper sets out a series of questions whose answers can be used to calculate a score which then reflects the placemaking quality of any new development. Combining the two words of its title and conveniently appropriating the Latin word for peace, the score will be known as the PAX rating.”

“The matrix questions are divided into three groups, those that relate to the Physical, Socio-Economic and Psychological elements of any new development. In this alone the rating system forms a pioneering departure from conventional placemaking practice, while it is relatively easy to define physical attributes and, to a slightly lesser extent, socio-economic ones, no previous study or standard has attempted to quantify the psychological content of places and yet these are arguably the most important when assessing their human impact. The PAX system does just this.”

Aside from the substance of the paper, one thing it really calls out for is some sub-editing and proof-reading. Mark these passages on a range of 0 to 4:

“It is important to note that the Placemaking Matrix does not present itself as a definitive ‘magic formula’ that can conclusively determine design quality and character. While the Matrix sets out to be a universal tool, the localised nature of placemaking will inevitably require adaptation to local contexts and conditions. Consequently It is not our intention that the current set of questions are forever fixed in stone forever. While the paper acknowledges that there are objective, observable truths that define good placemaking, it is not so ideologically rigid as to suggest that a tool such as this must attain pure, unqualified universality. We see our paper as the earliest development of the matrix and we hope and anticipate that with time, testing and hopefully trust from the industry, the questions can be modelled, adapted and evolved to strike the best possible balance between universal best practice and the localised, contextual nuance that also helps drive placemaking success.”

“Furthermore this paper emerges as the latest addition to a Policy Exchange Building Beautiful programme that has attempted to distil the very essence of beauty into an objective standard rather than a subjective instinct, a challenge that now form a central part of the political housing debate.”

So, it’s to be a “universal tool” but (I like this phrase) not “forever fixed in stone forever”. The paper is “not so ideologically rigid as to suggest that a tool such as this must attain pure, unqualified universality”.

Reader, my head was hurting. And then I entered the Matrix: 272 questions, each to be marked on a range of 0 to 4. The percentage score of each of 12 sections is then averaged out. 70% outstanding, 60% good, 50% average, below 50% poor. The questions are quite specific but in large part call for subjective responses. Their relevance is wholly dependent on the scale and nature of the scheme and its location. Some examples:

Does the development incorporate cycle lanes?

Does the development maintain a cycle hire scheme?

Does the development contain fountains?

To what extent do building uses integrate into existing usage patterns in the area surrounding the development site?

Does the programme design incorporate opportunities for impromptu street performance?

Does any programme apparatus incorporate audio-visual, tactile, sensory or play equipment?

What level of healthcare facilities have been provided on the development?

Has a letterbox been provided within the development?

Will any properties offer commonhold ownership?

Does the development incorporate audial stimulation? (i.e. church bells, wildlife habitats)?

Does the development promote a visual brand, motif or logo?

Why on earth add yet another technocratic process to the system, to be gamed by all concerned? I would say it’s tick-box but it’s worse than that!

This would all be classic “silly season” stuff. Except for Michael Gove’s endorsement by way of his foreword:

“…it is because placemaking is crucial to the country’s long-term health that Policy Exchange’s newly devised Placemaking Matrix promises to be an indispensable resource. A universal tool that can be used to score a range of elements seen in new and existing developments, it can help build confidence in the wider social value of new residential schemes during the planning process and so unlock much-needed new housing supply.”

“For too long, quality has been viewed by many as a planning impediment. The Placemaking Matrix could help transform it into an incentive. Ike Ijeh’s brilliant new paper for Policy Exchange is no less than a detailed instruction manual for how we can create the good places of the future. I hope it receives the welcome it deserves.”

I don’t disagree with the final sentence incidentally.

Simon Ricketts, 23 June 2023

Personal views, et cetera

Photo extract courtesy of Rafael Ishkhanyan via Unsplash

What Does A Planning Lawyer Do?

Fair question. Particularly at this festive time of year for planning lawyers given the annual publication yesterday by Planning magazine of its Planning Law Survey (16 June 2023, subscription only).

Perhaps recognising our narcissism as a profession, the magazine’s survey of planning lawyers doesn’t rank us by size, turnover or diversity as it does with planning consultants. Instead, it’s a survey of other professionals (“The firms and individual solicitors singled out in this year’s Planning Law Survey by a panel of 195 consultants, developers, councils and other client groups”) as to how highly we and, where relevant, our firms are “rated” (whatever that means). And don’t we all want to be loved? Don’t we just purr at the attention?

To declare an interest, obviously personally I love it. Thank you Planning magazine and thank you those who voted.

To declare another interest, personally I hate it. Inevitably good people are excluded – there may be seven solicitors from my firm in this year’s top 20 but, honestly, we could fill every place on it and more besides! And there are many lawyers from other firms who are as good (if being “good” is the criterion, as opposed to just having the necessary brand recognition – a large element of the rankings is inevitably down to brand recognition). And have we spoken about the humble brags and (this is not meant as a humble brag) the imposter syndrome arising?

So, what is a planning lawyer in the first place? What does a planning solicitor do? What does a planning barrister do? What are you actually rating us on?

Planning law is short-hand for a fluctuating bundle of areas of law, the breadth or narrowness of the bundle depending on the individual. In England and Wales, its core is of course the Town and Country Planning Act 1990 and related legislation and case law, as a strand of public/administrative law. But nowadays I would expect specialist knowledge of aspects of highways law, heritage law, environmental law relevant to development consenting (including environmental impact assessment, strategic environmental assessment and habitats protection), the Freedom of Information Act and Environmental Information Regulations, the community infrastructure levy, local government law and other relevant legislative areas. Some may be particular specialists in for instance compulsory purchase, infrastructure planning, Parliamentary processes and/or rating. I would also expect a working knowledge of other areas of law – in most roles you aren’t going to be getting far without a working knowledge of, for example, contract, tort, real estate, corporate, banking and trusts law – if only to the extent of knowing when to call in a specialist. If you engage at all in litigation, you need to understand court processes. And there are some areas which might be thought to be close to planning law which often fall in a different pigeon-hole, for instance housing law, alcohol and events licensing and the detailed operation of the Building Regulations.

Obviously, it’s a split legal profession in England and Wales: solicitors and barristers (not to forget legal executives as well).

What does a planning solicitor do?

Of course, much non-contentious legal work, including preparing and negotiating planning, highways and other statutory agreements.

Give specialist advice in relation to relevant aspects of real estate, corporate or other corporate transactions.

Give advice as to strategy and legal interpretation – sometimes by way of an advice note equivalent to a barrister’s opinion, sometimes iteratively through close ongoing contact with the client and team.

Correspond with external parties (not the role of the Bar).

Undertake legal audits of draft application and environmental statement submissions in relation to more complex schemes.

On the contentious side, a solicitor needs to be on the record for the purposes of litigation and will usually co-ordinate the litigation process for their client , communicating with the court and the other parties and instructing the barrister.

For planning appeals and other statutory processes (eg highways, compulsory purchase) the extent of the solicitor’s role depends on the scale and complexity of the project and the wishes of the client – either right at the centre of things as coordinator, or being called upon for specific tasks.

Private practice solicitors will usually operate as a team, in a firm. You don’t instruct the individual – you instruct the firm.

What does a planning barrister do? You’re probably better off asking a planning barrister but here goes:

Advocacy in the High Court and beyond is the domain of those with a right of audience – barristers and those solicitors who have qualified to have the higher right. In litigation, advocacy is of course the final, most visible, lap – after initial advice has been given, pleadings settled and skeleton arguments prepared.

Anyone – lawyer, non-lawyer, barrister or solicitor – can appear as advocate at a planning inquiry, but again the Bar has retained a central advocacy role – a barrister is the natural choice as advocate for cases of any complexity given his or her experience and training. Even where the forum doesn’t call for traditional advocacy – eg hearings and examinations – the barrister can play a valuable role in marshalling and stress-testing the case, evidence and witnesses.

Giving advice, whether as to strategy or as to legal interpretation, whether in meetings or by way of formal opinion.

Private practice barristers will usually operate within a set of chambers, as self-employed individuals.

There are a few activities, “reserved legal activities”, which only can be carried out by an appropriately regulated lawyer. I’ve already mentioned the exercise of a right of audience. Another is the conduct of litigation (except in very specific circumstances non-lawyers should never be tempted to go on the record with the court in relation to legal proceedings). Another is preparing documents for registration at Land Registry and preparing other instruments relating to real or personal estate (I take this to include for instance section 106 agreements and agreements under section 38 of the Highways Act 1980 – solicitor or another qualified legal professional is required).

Maybe, aside from the usually forward looking focus in planning (“what is likely to happen/how can we influence that?” rather than “what happened/who was to blame?”) the teamwork element is what is most enjoyable. There are many areas where there are potential overlaps between the roles of lawyers and planners. I hope that a big part of what clients rate all of us on, lawyers and planners alike, is the extent to which we can:

work in seamless and efficient project teams.
explain clearly for them our now ridiculously complex planning system and collectively guide them to good outcomes
remain professional – people they can trust.

I suspect I have only scratched the surface. And that you will have views. What have I missed?

Simon Ricketts, 17 June 2023

Personal views, et cetera

All Tomorrow’s (Section 106) Parties

This post was prompted by the recent High Court judgment in Link Park Heathrow LLP v Secretary of State (Waksman J, 10 May 2023).

If I had a penny for every time I’ve been asked whether all those with a legal interest in the development site need to be a party to a section 106 agreement or unilateral undertaking…

In fact, my usual going rate is more than a penny. But have this for free:

Let’s start with the statutory power. Section 106 (1) of the Town and Country Planning Act 1990 provides as follows:

“Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and section 106A as “a planning obligation”), enforceable to the extent mentioned in subsection (3)—

(a) restricting the development or use of the land in any specified way;

(b) requiring specified operations or activities to be carried out in, on, under or over the land;

(c) requiring the land to be used in any specified way; or

(d) requiring a sum or sums to be paid to the authority (or, in a case where section 2E applies, to the Greater London Authority) on a specified date or dates or periodically.”

A planning obligation, which may be documented by way of agreement or unilateral undertaking, is given a particular legal effect (super power, really) by sub-section 106 (3): it isn’t just enforceable against the person entering into the obligation but also against any person deriving title from that person. And sub-section (4) makes it clear that the agreement or undertaking may provide that a person shall not be bound by the obligation in respect of any period during which he no longer has an interest in the land.

The purpose of a planning obligation is to secure any legally binding commitments that can’t be secured by way of planning condition and which are necessary to make the proposed development acceptable in planning terms.

It makes sense that the local planning authority’s solicitor needs to make sure that the planning obligation binds, as parties, all those with interests in the land which it is necessary to have on the hook, such that there can be no risk that anyone else with an interest in the land can carry out the development, or any part of it, free from any planning obligations which would need to be complied with in order for the development, or that part of it at least, to be acceptable in planning terms.

There is no blanket rule that all those with an interest in the land need to be a party to the planning obligation. Of course that is tidiest. But often it will be the case that a meaningful part of the development can’t be carried out by an individual landowner of part of the site in a way that would be problematic even if that owner were not a party to the agreement or undertaking and if it will not be straight-forward to have that landowner agree to be a party, some thinking needs to be done.. What can be built pursuant to the approved plans on the relevant parcel? Is there any other reason why there is in fact no risk of the mitigation not being provided pursuant to the section 106 agreement or undertaking as intended?

There’s a useful case, R (McLaren) v Woking Borough Council [2021] EWHC 698, which strangely isn’t online but, having checked the rules as to hierarchy of case citation, I feel comfortable relying on Killian Garvey’s LinkedIn feed as the most authoritative report of it (you’re right up there with the All England Reports in my world Killian):

“In McLaren a landowner brought a legal challenge against the grant of planning permission, essentially on the basis that they owned 50% of the site that permission had been granted for and they had not signed the section 106 agreement. The High Court held that there was no error of law in this.

The critical part of the judgment is as follows:

21. In my view, this ground does not raise an arguable legal or public law error. The s.106 agreement follows the requirements of s.106 of the Town and Country Planning Act 1990 . It is in the form of a deed. It identifies, by the definitions referred to, the land in which the person entering the obligation, i.e. New Central, is interested, and the interest which the person entering into the obligation has. It will be recalled that recital 2 of the agreement stated that New Central was the owner of the land with title absolute at HM Land Registry under the number I have referred to and shown hatched blue on the plan. Despite infelicities in the drafting of cl.2, which I have quoted, interpreted in context it expresses the intention of the owner, New Central, to bind its freehold interest in the land, in other words, approximately one-half of the area of the site, the part which it owns.

22. Further, I cannot see any legal requirement that a s.106 obligation ought to bind all material interests in a planning application site. Those with no interest in land can apply for planning permission in respect of it, as Mr Mohamed conceded, and a local planning authority can grant planning permission on taking material considerations into account. On my reading it was not a pre-condition of the Planning Committee’s decision in 2017 for the claimants to be a party to the s.106 agreement. That is not what the report says in its conclusion, and the passage immediately following, under the heading “Planning Obligation”, which I quoted earlier. The fact is that the obligation binds a sufficient part of the site, namely, that belonging to New Central, to preclude development unless its purposes are met. I would add that the claimants have not been excluded from the agreement; they may unilaterally bind themselves at any time to its obligations if they choose to do so.”

Often, if it would be problematic in planning terms to allow development to proceed without a particular owner being bound by the planning obligations, the authority can impose what is known as an Arsenal-type condition to cover off the position. The mechanism is so named because it was used in relation to the Emirates Stadium development (not because it is in any way second best). Basically, the condition prevents development being carried out unless the remaining landowners first enter into a deed adhering to the obligations in the agreement or undertaking. The Government’s Planning Practice Guidance advises as follows:

“Is it possible to use a condition to require an applicant to enter into a planning obligation or an agreement under other powers?

A positively worded condition which requires the applicant to enter into a planning obligation under section 106 of the Town and Country Planning Act 1990 or an agreement under other powers, is unlikely to pass the test of enforceability.

A negatively worded condition limiting the development that can take place until a planning obligation or other agreement has been entered into is unlikely to be appropriate in the majority of cases. Ensuring that any planning obligation or other agreement is entered into prior to granting planning permission is the best way to deliver sufficient certainty for all parties about what is being agreed. It encourages the parties to finalise the planning obligation or other agreement in a timely manner and is important in the interests of maintaining transparency.

However, in exceptional circumstances a negatively worded condition requiring a planning obligation or other agreement to be entered into before certain development can commence may be appropriate, where there is clear evidence that the delivery of the development would otherwise be at serious risk (this may apply in the case of particularly complex development schemes). In such cases the 6 tests should also be met.

[…]

Paragraph: 010 Reference ID: 21a-010-20190723”

This makes sense. Otherwise how would planning permission ever be possible in advance, for instance, of compulsory purchase that may be needed to unlock the development, or of vacant possession being secured?

I don’t know what other people’s experience is, but I am finding inspectors frequently to be taking a hard line and you may not find this out until it is too late – when the decision letter is issued.

Perhaps the word “normally” is being overlooked in the Planning Inspectorate’s Planning Obligations: Good Practice Advice, which states:

“Normally all persons with an interest in land affected by a planning obligation – including freeholders, leaseholders, holders of any estate contracts and any mortgagees – must sign the obligation.”

Which brings us to Link Park Heathrow LLP v Secretary of State (Waksman J, 10 May 2023) (Town Legal acting for the claimant, instructing Rupert Warren KC)). This related to a proposal for a large data centre. There were a number of occupational tenants on the site which were not made party to the necessary section 106 unilateral undertakings.

In my view there was a perfectly respectable case for saying that the tenants did not need to be made party to the planning obligations in any event: the freeholder was bound and in any event none of the tenants could in practice carry out any meaningful element of the proposed data centre development on the area of the site demised to them. But that’s by the bye because the appellant and the two relevant local planning authorities had agreed a proposed Arsenal-type condition which was in this form:

“No work shall be carried out under this planning permission in the area shown hatched purple on the plan…

a) until either all parties with any interest in the area shown hatched purple have entered into a s.106 unilateral undertaking on the same terms on which this permission is granted or

b) such interests have come to an end and evidence of it having come to an end has been provided to the Council.

Reason: The planning permission has been granted subject to a s.106 unilateral undertaking and at the time of this permission being issued the applicant is not able to bind all relevant parties and interests in the site to the terms of the planning obligations that it contains.”

The appeal was by way of a hearing, which of course has its own limitations in terms of the opportunity for detailed debate on these matters. The Inspector dismissed the appeal and his decision letter contained the following conclusions as to whether it was sufficiently certain that the mitigation provided for in the unilateral undertakings would be delivered:

“51. The evidence before me was indicative that the area under jurisdiction of Buckinghamshire experiences residents migrating to other areas to undertake their employment. To mitigate this, the Council seeks the provision of employment and training opportunities on new developments in their area.

52. A planning obligation should run with the affected land. This means that should the land be transferred to a different owner the obligations within the agreement would be enforceable against the future owners. Therefore, a legal agreement should be signed by all parties with an interest in the land. The undertakings that have been submitted as part of the appeal proceedings have been signed by the landowner and the mortgagee, however, they have not been signed by leaseholders that occupy parts of the site. This means that not all of those who have an interest in the land are parties to the undertakings.

53. Therefore, in the event of these unilateral undertakings being breached, the Council cannot take enforcement action against the leaseholders. In consequence, I do not believe that the submitted unilateral undertakings provide me with sufficient certainty that the required mitigation would be provided.

54. I note that the unilateral undertakings have clauses that require that any leaseholds be surrendered prior to development commencing and that a planning condition could be imposed that would ensure that prior to development commencing the leasehold land was bound a legal agreement consistent with the submitted unilateral undertakings.

55. However, layout of the Development has been reserved for future consideration, therefore, at this juncture there is a possibility the land that is covered by the current leases might be the first to be developed. In consequence, if there is not an agreement in place at this point the respective councils would not be able to take enforcement actions against such a breach. Therefore, I must conclude the Development would not provide the required mitigation.

56. The appellant suggested this approach had been taken previously on another site outside the jurisdiction of the Councils involved in this appeal. I do not have full information regarding the planning circumstances of this, which means I can only give this matter a limited amount of weight. Nonetheless, I do not believe the circumstances of the appeal scheme, particularly given my previous conclusions, warrant diverging from the approach of having all the interested parties signing the unilateral undertaking.”

Where in the above is any consideration as to whether the proposed Arsenal-type condition agreed between the parties provided an appropriate solution? This was one of three separate grounds on which the court quashed the decision:

“As [the claimant] contends, either the Inspector misunderstood the effect of this condition, which was an error of law, or if he did understand it he did not take it into account in reaching his conclusion, which was that he was not prepared to remedy the problem of the unenforceable Undertaking before him while it was a material consideration in that regard. Either way, this rendered his decision unlawful.”

I don’t know if others have experienced equivalent reluctance on the part of inspectors to accept Arsenal-type conditions? This was also an issue at the planning appeal stage in Satnam Millennium Limited v Secretary of State (Sir Duncan Ouseley, 8 October 2019) (Town Legal acting for the claimant, instructing Christopher Lockhart-Mummery KC and Heather Sargent) but the decision was quashed on other grounds.

We were also recently acting on a case where the appellant was an overseas company but, before our involvement, had not volunteered to the inspector a foreign lawyer’s opinion to confirm that the relevant unilateral undertaking had been validly executed (the point hadn’t been raised by the local planning authority). This was the only ground on which the appeal was dismissed. The Government Legal Department consented to judgment and the appeal is now being re-determined.

Many banana skins out there, for applicants/appellants and decision-makers alike.

Simon Ricketts, 9 June 2023

Personal views, et cetera

Image courtesy of Andy Warhol via Billboard

Responsible Actors

When do the ends justify the means?

I wrote about Michael Gove’s strong arm tactic to secure contributions from developers towards cladding and other building defect issues, in my 18 February 2022 blog post Developers As Proscribed Organisations: The Government’s Amendments to the Building Safety Bill. The Bill was enacted, including section 128 (prohibition on development for prescribed persons) and section 129 (building control provisions).

By way of the responsible actors scheme (the subject of this DLUHC guide), the Secretary of State can decide to exclude particular businesses (developers) from operating (developing). The background, as to the Grenfell tragedy (albeit with multiple points of culpability) and failings across many other developments, is understood but this is quite a market intervention for a Conservative Government and more of a v-turn than u-turn from the days of “red tape challenges” and similar (literally) dangerous nonsense.

How the process is going to work is now clearer, the draft Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 having been laid before Parliament on 25 April 2023, together with a helpful explanatory memorandum.

I’m going to quote a large chunk of that memorandum:

“7.2 Since the Grenfell Tower Fire, it has become evident that a very significant number of residential buildings of 11 metres and above in height were clad with unsafe materials which posed a fire safety risk to residents.

7.3 In January 2022, the Government set out its position that industry actors that had profited from the events leading up to the crisis must pay to fix the problems they created, and that the wider industry must also contribute to resolving these issues. Our objective with this instrument is to ensure that developers pay an appropriate share of remediation costs.

7.4 The Government initially secured (by Summer 2022) a public pledge from 49 larger developers, committing to fix life-critical fire safety defects in residential buildings 11 metres or more in height which they developed or refurbished in England between 1992 and 2022. In July 2022, the Government published an initial draft developer remediation contract, followed by a period of sustained and intensive engagement with around fifty major developers, coordinated by the Home Builders Federation, until January 2023 on how the Pledge commitments should be codified into a binding contract. The contract terms also include requirements that signatory developers keep residents in buildings which are undergoing remediation informed of progress, and to reimburse taxpayers for money that has already been spent to fix buildings through government funds.

7.5 The developer remediation contract is at the heart of the RAS. The Government has been consistent in its public position that developers who are eligible for the scheme but who elect not to make the important commitments set out in the developer remediation contract, or who fail to comply with its terms, should expect to face significant consequences given the significance and urgency of this problem. In such circumstances, they will be prohibited from carrying out major development and gaining building control sign-off in England, subject to certain exceptions set out in the instrument. The RAS is intended to support a level playing field for major developers in the industry, so that those developers who do make commitments to remediate are not disadvantaged. As of 21 April 2023, and subject to change, 46 of the 50 developers who have been invited to sign the contract have done so. In signing the contract, they have committed to remediation works estimated by the industry to be worth over £2 billion.

7.6 The description of who is eligible for the scheme captures, in both cases by reference to meeting a profits threshold [“average adjusted operating profits of over £10m per year over three years from 2017-2019”], (i) major housebuilders who have developed 11m+ residential buildings, and (ii) other large developers who have developed or refurbished two or more residential buildings that are known to have fire safety defects by virtue of having been assessed as eligible for a relevant government cladding remediation scheme. There is also a route for other developers who developed a defective building to volunteer to join the scheme. The developer selfremediation approach, and the RAS, is to be expanded over time to cover other 4 CO/EM/2022.3 developers who developed or refurbished defective 11m+ residential buildings and should pay to fix them.

7.7 As with the developer remediation contract, the RAS aims to improve the safety of buildings by requiring that any member of the RAS must identify and remediate, or pay for the remediation of, life-critical fire safety defects in residential buildings of over 11m in height which they developed or refurbished between 1992 and 2022. To join the scheme, members of the RAS will be required to enter into the developer remediation contract with DLUHC as published by DLUHC on 16 March 2023 and available at: https://www.gov.uk/government/publications/developer-remediationcontract, and comply with its terms.

7.8 The prohibitions in this instrument relate to persons who are eligible under the instrument for the new RAS scheme and do not join, or who join but who subsequently fail to comply with the scheme conditions and have their membership revoked, and persons controlled by them. It is necessary for the effectiveness of the scheme and prohibitions to include persons under the control of the prohibited developer so that a prohibited developer cannot continue their development business through other entities which they control.

7.9 The regulations enable Secretary of State to make exceptions from the prohibitions covering five main circumstances: businesses under the control of an eligible person who are not in the building industry; exceptions for projects necessary for critical national infrastructure; allowing building control sign-off for residential buildings where people have exchanged contracts on their new home before the prohibition on their developer went into effect; permitting purchasers and owners to obtain a regularisation certificate for unauthorised building work under the Building Regulations 2010; permitting emergency repair works; and permitting building works in occupied buildings to ensure resident safety.”

“11.1 We plan to issue guidance on the operation of the scheme and to local authorities on the operation of the statutory prohibitions. The guidance will be made publicly available by Summer 2023. Because of the time limits provided for in the instrument, this guidance will be available well in advance of the prohibitions being applied to any developer.”

According to the latest DLUHC update, 48 developers have so far signed the developer remediation contract. Three developers are named as being yet to sign the contract.

It may be a brutally effective measure. But imagine if a similar approach was taken to another industry, for example the media or (hmm) water utilities or (hmm hmm) some arms of state activity?

Simon Ricketts, 3 June 2023

Personal views, et cetera

Pic courtesy of Wesley Pibaldi via Unsplash

You Can Call Me AI

Like most real humans, Chat GPT doesn’t really know how the planning system works, although it thinks it does, is plausible to the uninitiated and is going to learn fast.

“Describe the scene at the opening of a planning inquiry in the style of Martin Amis”

“The overcast morning yawned drearily as the austere gates of justice swung open, reluctantly welcoming a procession of concerned citizens, bureaucrats, and legal enthusiasts into the cavernous embrace of the planning inquiry. The venue, a drab municipal hall adorned with faded civic emblems and stained carpeting, echoed with the collective sigh of resignation.

The attendees, a motley crew of disparate interests and insatiable curiosities, shuffled in, each sporting a distinct sartorial display of subdued professionalism. Men in ill-fitted suits, replete with the sullen faces of reluctant labor, mingled with bespectacled women clutching notepads with an air of anticipatory dread. The atmosphere was thick with the scent of worn leather, a pallid reminder of past struggles fought and victories scarce won.

The weary acoustics of the room trembled as the chairman’s gavel thundered, reluctantly arousing the assembled multitude from their communal stupor. A bespectacled figure emerged from the shadows, his furrowed brow betrayed by a sparse crown of graying hair, a testament to the inevitable encroachment of time upon the human visage. He cleared his throat with a noise resembling a desolate gust of wind sweeping through a forgotten corridor, demanding the attention that was reluctantly offered.

Chairman and gavels aside, it’s not going to be long folks (and of course it is already being used for various specific functions – see this piece), so we need to be on top of how it can be used to improve development outcomes and lead to genuine efficiencies, whilst being on guard against its misuse. Could you spot a Chat GPT generated objection letter? This was its response to the request for an objection letter to a proposed solar farm, free and it took about a second. Imagine how it might then be plausibly tweaked and sent, many times over. How are planning officers going to guard against this?

“Subject: Objection to Proposed Solar Farm near [Your Location]

Dear [Recipient’s Name],

I am writing to express my deep concern and objection to the proposed solar farm project in close proximity to my residence [or: the [specific location]] in [City, State]. While I appreciate the growing need for renewable energy sources and acknowledge the importance of solar power in combating climate change, I believe that the current proposed location poses significant issues and may have adverse effects on the surrounding environment and community.

First and foremost, the proximity of the proposed solar farm to residential areas raises concerns regarding potential impacts on the quality of life for residents. The visual impact of large-scale solar panels and associated infrastructure in close proximity to homes could significantly diminish property values and negatively affect the aesthetic appeal of the area. Moreover, the potential glare caused by the reflective surfaces of solar panels could be intrusive and disruptive to residents, impacting their ability to enjoy their homes and surroundings.

Additionally, I am concerned about the potential environmental impacts associated with the construction and operation of the solar farm. The proposed location may be ecologically sensitive, hosting diverse wildlife habitats or fragile ecosystems that could be disrupted or permanently damaged by the installation of the solar panels and related infrastructure. It is crucial to thoroughly evaluate and mitigate these potential ecological consequences before proceeding with the project.

Furthermore, the proposed solar farm could have implications for the local community’s overall well-being. Construction activities may result in noise pollution, increased traffic congestion, and potential disruptions to daily activities. These factors, combined with the potential decrease in property values, may negatively affect the livelihoods and economic stability of the community.

I strongly urge you to consider alternative locations for the solar farm that are more suitable in terms of minimizing the visual impact on residential areas, preserving environmentally sensitive areas, and minimizing disturbances to the local community. It is crucial to involve the affected residents and community members in the decision-making process through open dialogue, public consultations, and comprehensive environmental impact assessments.

I kindly request that you take my objections into serious consideration and review the proposed solar farm project in light of the concerns raised. I encourage you to explore alternative options that prioritize both renewable energy goals and the well-being of the community and environment.

Thank you for your attention to this matter. I trust that you will act in the best interests of the community and ensure that any future renewable energy projects are developed with careful consideration of the concerns raised.

Yours sincerely,

[Your Name]”

I know to us it’s nonsense, no policies no nothing, but if I had been more specific in my request I would have got a more refined draft. And as it stands it’s pretty much par for the course as objection letters go.

Finally, as a bit of fun, what does Open AI’s Dall-E system think that the scene at a planning inquiry might look like?

The participants:

Not so bad really. But what about the solicitor?

He (an algorithmically assumed white male) is pictured faceless, doodling, writing nonsense:

Or the planning officer?

More white males, one strangely missing a finger on his left hand:

The overall lack of diversity of it all is troubling, as is the sheer lazy ease of generating splurge content – without safeguards (which are needed immediately, not at the speed that the planning system usually works) this could be as harmful for the planning system, in terms of submerging it under prolix and irrelevant content, as word processing technology has been. In fact, in Chat GPT I think I have found the real mutant algorithm.

Happy bank holiday all.

Simon Ricketts, 27 May 2023

Personal views, et cetera

A planning inquiry in the style of David Hockney, apparently.

Drop The Pilot: Community Land Auctions

Hey let’s get Joan Armatrading on the Walkman. We’re going back – way back…

The Levelling-up and Regeneration Bill had its first reading in the House of Commons over a year ago on 11 May 2022. It’s not just intervening political chaos which has caused this slow-moving caravan of disparate policy notions to lurch from side to side with occasional abrupt halts Along the way additional bright notions have been loaded onto it, impeding progress still further.

One of those notions is the old chestnut of community land auctions. Clauses 127 to 137 were added to the Bill in November 2022 without prior consultation, once Michael Gove became Secretary of State, so as to allow community land auctions to be piloted for ten years.

Many of you will remember economist Tim Leunig promoting the idea back in the early days of the Coalition Government. See for instance Tim Leunig’s blog post Housing is expensive in Britain. This is because we have built too few houses for the number of new households – land auctions will help give us the homes we need (LSE, 23 March 2011). In fact some of you may even have been at an event I hosted back then where we had a discussion around a swanky breakfast table at the firm I was then at, with property and planning people quizzing him as to how it would actually work. Leunig is now Gove’s senior policy advisor at DLUHC.

CLAs are of course catnip to many political types and economists, for instance supported by Policy Exchange (see eg Alex Morton’s 2013 paper A Right To Build) and the YIMBY Alliance, as part of the wider thinking on land value capture (see eg my 20 May 2017 blog post Money For Nothing? CPO Compensation Reform, Land Value Capture). My conclusion remains that the introduction of community land auctions would inevitably be harmful to the principled operation of the planning system – it’s just too darned complicated – and to the delivery of development in the right places – for instance it introduces a huge conflict of interest for the local planning authority as between whether to plan for the best places or the best returns. In my view primary legislation to allow for a pilot is premature. If there are excess unearned gains for the state (in addition to what is already extracted via the planning system), why not just openly tax them rather than embark on this three cup trick?

The current concept is set out in pages 125 to 133 of the Explanatory Notes to the Bill.

Clause 127 (3) of the Bill:

“A “community land auction arrangement” means an arrangement provided for in CLA regulations under which—

(a) a local planning authority is to invite anyone who has a freehold or leasehold interest in land in the authority’s area to offer to grant a CLA option over the land, with a view to the land being allocated for development in the next local plan for the authority’s area,

(b) any CLA option granted under the arrangement ceases to have effect if the land subject to the option is not so allocated when that plan is adopted or approved (unless the option has already been exercised or been withdrawn or otherwise ceased to have effect), and

(c) the local planning authority may—

(i) exercise the CLA option and dispose of the interest in the land to a person who proposes to develop the land,

(ii) exercise the CLA option with a view to developing the land itself, or

(iii) dispose of the CLA option to a person who proposes to exercise it and then develop the land.”

Clause 128: “Power to permit community land auction arrangements

(1) This section applies where—

(a) the Secretary of State directs that a local planning authority which is to prepare a local plan may put in place a community land auction arrangement in relation to that plan,

(b) the local planning authority resolves to do so (and that resolution has not been rescinded), and

(c) the community land auction arrangement has not come to an end.

(2) The local plan may only allocate land in the authority’s area for development—

(a) if the land is subject to a CLA option or a CLA option has already been exercised in relation to it, or

(b) in circumstances which are prescribed by CLA regulations.

(3) Any financial benefit that the local planning authority has derived, or will or could derive, from a CLA option may be taken into account—

(a) in deciding whether to allocate land which is subject to the option, or in relation to which the option has been exercised, for development in the local plan;

(b) in deciding whether the local plan is sound in an examination under Part 2 of PCPA 2004.

(4) CLA regulations may make provision about how, or to what extent, any financial benefit may be taken into account under subsection (3) (including provision about how any financial benefit is to be weighed against any other considerations which may be relevant to whether the land should be allocated for development in the local plan or to whether the plan is sound).”

Receipts are to be used to support development in an area by funding infrastructure and paying for the administration of the community land auctions process.

The provisions were debated in House of Lords Committee on 18 May 2023 (the relevant part of the debate starts from amendment 364B) and it might put some flesh on the bones to see how a Government minister, Earl Howe, explains how it is all intended to work:

“Community land auctions are an innovative process of identifying land for allocation for development in a local planning authority’s area in a way that seeks to optimise land value capture. Their aim is to introduce transparency and certainty by allowing local planning authorities to know the exact price at which a landowner is willing to sell their land. The crux of our approach is to encourage landowners to compete against each other to secure allocation of their land for development in the local plan by granting a legally binding option over their land to the local planning authority.

The competitive nature of community land auction arrangements incentivises landowners to reveal the true price at which they would willingly part with their land. If the land is allocated in the local plan upon its adoption, the local planning authority can sell the CLA option, keeping the amount that the successful bidder has paid and capturing the value that has accrued to the land as a result of the allocation. The successful bidder must then pay the price set out by the original landowner in the option agreement to purchase the land. The detailed design of community land auction arrangements will be set out in regulations that will be subject to the affirmative procedure.”

“…sustainable development remains at the heart of our approach. Piloting authorities will decide which land to allocate in their emerging local plans by considering a range of factors, which the Government will set out in guidance. Unlike conventional local plans, when allocating sites, local planning authorities will be able to consider the financial benefits that they are likely to accrue from each site. How, and the extent to which, financial benefits may be taken into account will be determined in regulations. Importantly, the existing requirement to prepare local plans, with the objective of contributing to the achievement of sustainable development under Section 39 of the Planning and Compulsory Purchase Act 2004, will remain.

We are not altering the existing local plan consultation and examination process. Piloting authorities will still be required to consult on the proposed land allocations in their draft local plans, before they are submitted and independently examined in public in accordance with the local plan preparation procedures, as modified by Schedule 7 to the Bill.

… the Secretary of State is required to lay a report before each House of Parliament on the effectiveness of the pilot within the timeframe set out in Clause 134(2). There is a requirement to publish this report, which means that it will be publicly accessible and available to any combined authority that was involved in the pilot.

The noble Baroness, Lady Taylor, asked about whether there had been prior consultations. We will consult on community land auctions shortly, and taking part in the pilot will be voluntary for local authorities. We need the powers in the Bill to enable the pilot to happen.

I appreciate the thought behind my noble friend’s Amendment 366. However, as community land auctions are a new and innovative process for identifying land for allocation for development, our view is that it is right that the Bill makes provision for them to be piloted on a strictly time-limited basis.

If community land auction arrangements are deemed successful, and if there is ambition to extend the approach, further primary legislation would be required to implement them on a permanent basis. As we do not have the evidence about their effectiveness yet, we think it right that the Bill does not include provisions that could make CLAs a permanent fixture. Instead, the Government will take a decision at the relevant point in the future, based on the evidence.”

“The simplest way I can describe this is that community land auctions will be a process of price discovery. In the current system, local planning authorities have to make assumptions about the premium required by a reasonable landowner to release their land for development. For Section 106 agreements, this manifests itself through viability negotiations between the local planning authority and a developer. As these can be negotiated, there is a higher risk that, in effect, higher land prices lead to reduced developer contributions, rather than contributions being fully priced by developers into the amount that they pay for land.

For the community infrastructure levy and the proposed infrastructure levy, a levy rate is set for all development within certain parameters. When setting rates, the local planning authority has to calculate how much value uplift will occur on average, and has to make assumptions about landowner premiums and set a levy rate on that basis. The actual premium required by individual landowners will not be available to local planning authorities and will vary depending on individual circumstances. If the local planning authority makes an inaccurate assumption about landowner premiums, they may either make a lot of sites unviable by setting too high a levy rate, or else they will collect much less than they might have done otherwise by setting too low a levy rate.

Under the CLA process, landowners bid to have their land selected for allocation in an emerging local plan, as I have described, by stating the price at which they would willingly sell their land to the LPA for development. The offer from the landowner, once an option agreement is in place with the LPA, becomes legally binding. The LPA can either exercise it themselves, thereby purchasing the land, or auction it to developers. The competitive nature of CLAs incentivises landowners to reveal the true price at which they would willingly part with their land. If they choose to offer a higher price, they risk another piece of land being allocated for development, in which case they will not secure any value uplift at all.”

But if you’re regularly involved in local plan making and/or the promotion of land for development, obvious points arise, none of which are addressed in the above – or anywhere as far as I can see:

the nature, terms and timing of these “options”. They would need to be investment-grade binding commitments on the owner (or owners – many potential allocations are a patchwork of interests knotted together by land promoters) and the owner’s successors in title, with all those with relevant interests (eg mortgagees, tenants) having consented, legally binding for a very long period of time, until drawdown which would be way past local plan adoption, with no get out if any owner changes its plans.
The above means heavy-duty conveyancing input on the part of the owner but also on the part of the local authority, all within the necessary local plan preparation window. Given the number of sites proposed in any local authority’s “call for sites” this is a truly massive amount of work to be resourced by the authority, even with terms as standardised as possible.
The proposed option price by the land owner is going to be influenced by whether best values are to be achieved (1) blind via this route, (2) by in some way bringing forward a scheme outside the process (if this is ruled out the system is utter nationalisation and state control of development – if that’s what you voted for, fine, but I suspect it’s not) or (3), as has happened with other forms of development land tax, by just waiting it out for a less restrictive regime.
Say two pieces of land are put forward as alternative locations for the expansion of a town, one less sustainable than the other (eg it may be greenfield rather than brownfield, remote from public transport connections). The owner of the less sustainable site may offer to make its land available for a lower price. To what extent can or should the authority take into account the additional monies to be extracted from on-sale of the less sustainable site in deciding which to allocate? My early years as a planning lawyer were in the out of town supermarket wars, where the common situation was the local authority seeking to promote a supermarket on its own, worse, site in opposition to better proposals by others, for obvious reasons that at the time of course had to remain unspoken because having regard to the authority’s potential financial returns was obviously verboten. Just think how this would play out under what is proposed – and with much of the decision making inevitably taking place behind closed doors due to inevitable commercial confidentiality.
How is commercial and mixed used development to be approached and dealt with in valuation terms? Is this how we are going to allocate land for major logistics or industry? It’s a cookie cutter approach as presented: housing, housing, housing.
The local authority is envisaged to be the ring master and banker of the whole processes. Whilst this may be welcome in some ways, capacity building would be required on a huge scale.
In any event, the current system already minimises land values, and will increasingly do that if relatively recent changes to the viability process are allowed to bed down. Every time development comes forward with less affordable housing than required by policy, that is because the authority, or inspector on appeal, has been satisfied, on the basis of valuation advice, that no more affordable housing could be extracted and the scheme still proceed, based on an appraisal that doesn’t feed in the price the developer may actually have paid for the land but, usually, just existing use value with a premium set at the minimum that the valuers agree would have been necessary to persuade the owner to sell. I would like to see an explanation of why the option price offered by a land owner would be likely to be lower than EUV+.
Oh and there’s nothing “community” about it.

That’s just the outcome 15 minutes’ thought at the kitchen table on a Saturday morning with Joan Armatrading on in the background.

Some people seem to think that the planning system can be used as a sandbox for trying out these over-complicated, theoretical constructs. I set out my brief thoughts on the infrastructure levy last week and see also the “no hope value” thinking. We’re barking up the wrong tree folks. Drop the pilot. We don’t have the time. Get the existing system to work, now, with more resources and less complexity, better guidance and – perish the thought – some political consistency. Use the local plans system for planning and the tax system for taxation rather than creating something which sounds more like a complicated board game. In my humble opinion.

Simon Ricketts, 19 May 2023

Personal views, et cetera

The phrase to “drop the pilot” means to abandon a trustworthy adviser. This 1890 Punch cartoon depicts the dismissal of Otto von Bismarck from the Chancellorship of the German Empire by Wilhelm II.

When The Levy Breaks

“All last night sat on the levy and moaned

All last night sat on the levy and moaned

Thinkin’ ’bout the IL and how to build some homes”.

Many of us have had an intense few weeks of meetings and calls on the subject of the proposed infrastructure levy since publication in March 2023 of DLUHC’s technical consultation document and ahead of the 9 June deadline for responses to the 45 questions asked.

There is some bewilderment. We’re used to proposals for planning reform that introduce additional complexity, that as yet have no proof of concept or that are likely to have unintended, unwelcome, consequences, but the consensus seems to be that IL really takes the biscuit.

Sam Stafford and BECG have now done wonders in editing a recent Clubhouse discussion I hosted on the subject (featuring some people who know what they are talking about – my Town Legal partner Clare Fielding, Quod’s Sasha Gordon, BNP Real Estate’s Anthony Lee, the BPF’s Sam Bensted, Irwin Mitchell’s Nicola Gooch and, last but not least, Gilian MacInnes) into a 50 Shades of Planning podcast episode. Whatever your current level of knowledge of the proposals I think you will find it worth a listen – if only for Sam’s comments at the head and tail of the piece. It’s available to listen to here.

“Cheer up, it might never happen”, you could say. But it might.

Heavy blues man.

Simon Ricketts, 13 May 2023

Personal views, et cetera

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