Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

Drive Time

Turbulent times as the Conservative party desperately looks to position itself for the next general election, still mindful, it seems, of its narrow, anti-ULEZ fuelled, win in the Uxbridge and South Ruislip by-election in July 2023.

I wonder if the prime minister has recently read chapter 9 of the NPPF (“Promoting Sustainable Transport”)?

 I wonder if the prime minister recalls that since 1 June 2023 a new Government quango, Active Travel England is a statutory consultee on all large planning applications to “to help planning authorities in their work to implement good active travel design – for example, by ensuring developments include walking, wheeling and cycling connectivity to schools and local amenities. This will help improve public health, save people money and reduce harmful emissions.” ATE’s framework document may be seen as dangerously woke in this new political climate, aiming to deliver increases in active travel to 50% of all journeys in urban areas.

I wonder if the prime minister recalls his Government’s Net Zero Strategy: Build Back Greener with commitments such as:

  • “End the sale of new petrol and diesel cars and vans from 2030; from 2035, all new cars and vans must be zero emission at the tailpipe.” (long gone)
  • “Increase the share of journeys taken by public transport, cycling and walking.”
  • “Invest £2 billion in cycling and walking, building first hundreds, then thousands of miles of segregated cycle lane and more low-traffic neighbourhoods with the aim that half of all journeys in towns and cities will be cycled or walked by 2030. As announced in the Transport Decarbonisation Plan, we will create at least one zero emission transport city.”

The party’s Manchester conference saw two major policy announcements by the Government on transport (neither made first to Parliament as convention requires):

The Plan for Drivers  (2 October 2023)

Network North: Transforming British Transport (4 October 2023)

From the foreword to the Plan for Drivers, the car is king again:

“There’s nothing wrong with driving. Most of us use a car and, for many, life would not be liveable without their car. For those in rural areas, it is a lifeline. A car can hugely expand the independence of a younger person, as well as keep older people connected to key services and their families.”

There is the rather grudging nod to other modes of transport, but whatever you do, don’t vilify the private car:

“Walking, cycling and public transport are necessary in a multi-modal transport system and we support their continued growth, but they are not the right choice for everyone’s journey. Being pro-public transport does not mean being anti-car. The easy political choice is to vilify the private car even when it’s been one of the most powerful forces for personal freedom and economic growth in the last century. Used appropriately and considerately, the car was, is, and will remain a force for good.”

That first sentence is somewhat mealy mouthed in the face of what follows. The Government apparently intends to:

  • “update guidance (in England) on 20mph speed limits. While 20mph zones are an important tool in improving road safety in residential areas, over-use risks undermining public acceptance, so we are clear that 20mph zones should be considered on a road-by-road basis to ensure local consent, not as blanket measures
  • stop local authorities using so-called “15-minute cities” to police people’s lives. We will consult on measures including the removal of local authorities’ access to DVLA data to enforce such schemes by camera
  • following the LTN review, consider new guidance on LTNs with a focus on the importance of local support, and consider as part of the LTN review how to address existing LTNs that have not secured local consent”

Local authorities policing people’s lives via “15 minute cities” enforced by cameras? Bizarre.

There will be restrictions on the operation of bus lanes, measures to make parking easier, discouragement of penalty charge notices. And so it goes on.

And then today we had, to accompany the prime minister’s party conference speech, Network North – serving as the political cover for today’s decision to scrap HS2 north of Birmingham. Regardless of the noise about monies being diverted to other transport projects (many of which, worryingly for our climate change targets, are of course road projects), the cancellation decision is disturbing – not just for people and businesses who would have benefited from the longer route – but of course hugely upsetting also those whose properties have already been taken, as well of all of us whose money has been spent, irreversibly changing the environment including areas of outstanding natural beauty and ancient woodlands, on the basis of asserted public benefits that will now never be fully realised. In retrospect, today’s decision raises question marks over the initial decision by David Cameron’s government to proceed – as well as subsequent governments’ decisions to continue.

I was at least pleased to see that the Government has at re-committed to the line actually reaching Euston:

“We are going to strip back the project and deliver a station that works, and that can be open and running trains as soon as possible, and which has the leadership in place to deliver maximum value to the taxpayer. We will not provide a tunnel between Euston and Euston Square underground station or design features we do not need. Instead we will deliver a 6-platform station which can accommodate the trains we will run to Birmingham and onwards and which best supports regeneration of the local area. That is how we properly unlock the opportunities the new station offers, while radically reducing its costs.

We will appoint a development company, separate from HS2 Ltd, to manage the delivery of this project. We will also take on the lessons of success stories such as Battersea Power Station and Nine Elms, which secured £9 billion of private sector investment and thousands of homes. So we will harness the future growth that the station will unleash to support its development, to ensure we get the best possible value for the British taxpayer – and ensure that funding is underpinned by contributions from those people and businesses its development supports. At the same time, we are considerably upping the ambition of the Euston redevelopment, where we will be looking to establish a Development Corporation to create a transformed ‘Euston Quarter’ – potentially offering up to 10,000 homes.”

It will be interesting to see what ensues.

Foot to the floor, election ahead….

Simon Ricketts,4 October 2023

Personal views, et cetera

Detail from one of the first records I ever owned…

BNG: One Step Closer, Two Months Back

Hey you, don’t watch that, watch this. If it hadn’t been for the pesky BBC piece at the beginning of the day, the Government’s press statement Biodiversity Net Gain moves step closer with timetable set out (27 September 2023) would have been a terrific piece of spin.

The statement announced much awaited progress on the nuts and berries of biodiversity net gain  (see eg my 2 October 2021 blog post Ecology By Numbers: Biodiversity Net Gain In The Environment Bill (and further back my 30 March 2019 blog post Biodiversity Net Gain: A Ladybird Guide).

How precisely will the complex regime introduced by the Environment Act 2021 be implemented in practice? There was good news in the statement:

“By the end of November, we will publish all guidance and the regulations including:

•              the statutory biodiversity metric, critical for calculating the correct biodiversity gain

•              the draft biodiversity gain plan template, which will help developers prepare for what they will need to complete during the planning application stages

•              the Habitat Management and Monitoring Plan template, which will set out how the improved significant on-site and off-site habitats will be managed for the long term

•              a package of Biodiversity Net Gain guidance that sets out further advice for landowners, developers, and Local Planning Authorities around their role and responsibilities in delivering mandatory Biodiversity Net Gain

These materials will ensure that developers and planning authorities have access to the necessary tools and information to effectively implement Biodiversity Net Gain in January 2024, ensuring they deliver the homes that the country needs while benefitting nature and local environments.”

The awkward bit? We weren’t just expecting the guidance and regulations, all much delayed, but November 2023 was to be when the regime was actually to be implemented! Whoops. BNG for small sites had already been pushed back to April 2024 and BNG for nationally strategic infrastructure projects was always going to be later, but since 2019 DEFRA’s position has been that the BNG regime would come into effect two years after the Act received Royal Assent (9 November 2021). Whoops again.

Of course the work is difficult – it’s a forbiddingly complex regime, quantifying biodiversity numerically and effectively creating a state-backed credits-trading system. But we all knew that – and said as much during the passage of the Bill. Back in my 2021 blog post I naively hoped that the delays in the Bill would allow progress to be made on much of this as the Bill progressed. What have the array of ministers that we have had in DEFRA and DLUHC since 2019 actually been doing?

It isn’t just the Government that needs more time to complete its homework. The system relies on local government knowing what it is meant to be doing and being sufficiently resourced to cope with its new responsibilities. Earlier in the month, the RTPI was raising concerns on behalf of its members, RTPI publishes worrying new data ahead of Biodiversity Net Gain implementation deadline (7 September 2023):

A “survey of our RTPI members found that:

  • 61% of public sector planners cannot confirm they’ll have dedicated BNG resource and ecological expertise in-house in place by November.
  • 79% of public sector planners believe that BNG practice would be improved with confirmation of additional ‘skills and staff’
  • 78% of public sector planners believe that BNG practice would be improved with additional ‘guidance, advice and support’
  • 54% of planners across the public and private sector believe that BNG practice would be improved by giving ‘case studies of best practice’”

Let’s hope they are in a better position by January.

In another part of the forest, concerns as potential unintended consequences of the BNG regime were raised by the House of Lords Built Environment Committee in its 21 September 2023 report The impact of environmental regulations on development:

“Biodiversity net gain

178.Liz Hart told the committee that the biodiversity net gain (BNG) requirement is “putting developers off brownfield sites”. Remediation of a brownfield site, such as removing contaminated soil, can have a negative impact on biodiversity irrespective of any benefits from the removal of contaminants. If the same BNG metric applies to greenfield and brownfield sites, there is no incentive to fund remediation: a developer risks making a substantial financial outlay to remediate a site only to result in potentially significant negative BNG with further investment then being required on mitigation. We heard that the development of brownfield sites may depend on larger developers building on greenfield land to create a surplus of BNG credits.

179.The Minister for Natural Environment and Land Use agreed that where remediation involved removing contaminated soil that was beneficial to wildlife it would have a negative impact on BNG. However, she suggested many brownfield sites have low biodiversity value or will be below the de minimis threshold. The Wildlife Trust disagreed, suggesting this is often “far from reality” with brownfield sites commonly being successional habitats, home to a variety of rare species.

180.Brownfield development is a key government policy supported by the public and vital to delivering homes. The Government should ensure that remediating brownfield sites is not disincentivised by biodiversity net gain requirements. Local planning authorities should be able to moderate biodiversity net gain requirements for sites on their brownfield registers.”

I have a sense that implementation of this regime is only going to be the start. In the meantime, even this relatively short two months’ delay (assuming the latest commitment is met) sends another really poor signal as to (1) this Government’s ability to deliver on its promises and (2) as to the lack of priority that it would appear to be giving to the environment.

Simon Ricketts, 30 September 2023

Personal views, et cetera

It’s All About The Actual Logistics

Repeat after me: the planning system isn’t just about housing. 

Any country needs adequate modern space for ensuring that goods of every description, basically everything around us, can be efficiently and quickly delivered to their destination. Of course we are more reliant than ever on complex, often international, supply chains and in recent years we have seen how sensitive they are to disruption. Locational, operational and energy efficiency is also key to minimising the costs which ultimately will be borne by the consumer. We know all this. And yet somehow there’s a disconnect when we need to think about planning for the necessary floorspace, whether in large modern, often highly automated, high-bay warehouses or in “last mile” urban logistics hubs. 

Last year the British Property Federation, in conjunction with Savills, published a great explainer document, Levelling Up – The Logic of Logistics.

And so it was heartening to see the Department for Transport’s Freight and logistics and the planning system: call for evidence, published on 4 July 2023, with a deadline of 6 October 2023. It seeks evidence in three main areas:

  • local plan making and land availability
  • planning decision taking and the applications process
  • how the planning system can support specific policy priorities, including:
    • supporting supply chains
    • decarbonisation of freight
    • heavy goods vehicle (HGVs) driver parking facilities and welfare
    • strengthening the Union

I know that the DfT is very much wanting to hear positive suggestions as to how the system can be made to work better.

Last Tuesday my Town Legal colleague Paul Arnett recently co-hosted, alongside Quod, a roundtable meeting attended by a number of operators and developers in the sector, together with those in the public sector. 

Some interesting comments were made. For instance:

  • Conceptually the way in which the local plans system struggles, without a more strategic plan making tier, with assessing and planning for the larger than local need for logistics space. Often the need for development at particular locations is driven by geography and road/rail/port access rather than particular local needs, unlike with perhaps housing and other forms of employment development. 
  • The current failings of the NSIP process, save in the case of strategic rail freight. 
  • Other calls on space, by way of for instance data centres and dark kitchens, reducing that which is available for freight and logistics. 
  • The benefits of clustered development, several facilities in one location, in terms of employment, public transport and power. 
  • The challenges in making the case to local planning authorities for the associated facilities required, for instance in some locations a higher than usual level of car parking to allow for occupiers with workers on night shifts and for the overnight re-charging of electric vehicles (in the case of operators who traditionally may have expected staff to store their petrol or diesel vehicles at their homes overnight). 

There was much talk of the challenge of securing sufficient power, by way of connections to the national grid and how critical this has become, with many operators already making the move to all electric fleets, and with of course the extent of roof PVs.

The discussion became topical when the prime minister was bounced by leaks into making his speech on net zero the next day (20 September 2023). 

I had come out of that roundtable session wholly enthused by the degree to which the corporate participants were so advanced with their thinking on decarbonisation and net zero. To listen the next day to Rishi Sunak was like going back in time (for some of us it probably triggered memories of the scrapping of the code for sustainable homes at a time when the house building industry was well on the way to  delivering on what was being required – these sorts of changes to previously announced regulatory changes are debilitating to business in a way that governments do not seem able to grasp). Maybe I’ll leave further commentary on that particular statement to another place, save for highlighting one positive passage from that speech: 

“Right now, it can take fourteen years to build new grid infrastructure.

There are enough projects waiting to be connected to generate over half of our future electricity needs.

So, I can announce today that the Chancellor and Energy Security Secretary will shortly bring forward comprehensive new reforms to energy infrastructure.

We’ll set out the UK’s first ever spatial plan for that infrastructure to give industry certainty and every community a say.

We’ll speed up planning for the most nationally significant projects.

And we’ll end the first-come-first-served approach to grid connections by raising the bar to enter the queue and make sure those ready first, will connect first.”

Spot-on. Now let’s make all that happen. Because it is all about the actual logistics. 

Simon Ricketts, 23 September 2023

Personal views, et cetera

Extract from cover of BPF/Savills Logic of Logistics document

NN No

I may have been one of the first to blog on the nutrient neutrality issue in my 29 June 2019 blog post Another Green World: The South Coast Nitrate Crisis

Another Green World: The South Coast Nitrate Crisis

To quote from what I wrote over four years ago:

“I’m not sure that anyone can blame the EU, or lawyers, or local authorities, or developers, but no doubt they will. Rather, the problem arises from the apparent lack of adequate measures to ensure that, by virtue of its nitrate content, sewage generated as a result of new development does not harm the integrity of coastal waters protected as special areas of conservation and special protection areas under the Habitats and Birds Directives. Nitrate enrichment causes green algae, harmful to protected habitats and birds, through a process known as eutrophication. The chickens … are coming home to roost following a lack of priority for too long on the need by the Government and water companies to ensure that we have adequately funded and operated waste water treatment processes”

Of course the issue subsequently spread in terms of geography and by way of concerns as to phosphates as well as nitrates, hence references now to “nutrients”. (There are also related situations in relation to water neutrality in Sussex and in relation to recreational pressures on particular SACs – see my 9 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water – and in relation to nitrogen deposition on protected areas caused by traffic, eg see my 8 April 2017 blog post Heffalump Traps: The Ashdown Forest Cases – but the rest of this post focuses on nutrients). 

This Government failed for far too long to grasp the nettle and now, when it has, it has been badly stung. Surprise surprise. 

My 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment set out the way in which the Government belatedly looked to neutralise the nutrient neutrality problem for housebuilders and others who are stuck unless and until acceptable strategic or bespoke mitigation solutions are in place, by way of an amendment to the Levelling up and Regeneration Bill. The proposal was to take to remove nutrient pollution, by way of urban waste water, out of the ambit of the “harm to protected sites” integrity test. Subtle it wasn’t. 

The Lords report stage debate on what became Amendment 247YYA took place on 13 September 2013. We all know what happened: the amendment was rejected 192 – 161. 

As I set out in my 29 August 2023 blog post on the day the amendment was published, on balance I supported it – the need for a solution now is almost overwhelming – but I identified some questions to which the Government needed to be ready with answers. 

The brutal reality is that their answers weren’t good enough, particularly on the key question – whether this amounted to a regression from current environmental standards. The day after the amendment was published, the Office Of Environmental Protection sent the Government a letter making clear its expert view that the proposal would indeed amount to regression. Nature conservation bodies rose up as one notwithstanding Therese Coffey’s response (31 August 2023)

This may be a Government that still on paper retains a majority but boy it is on the ropes. The media and public opinion joyfully conflated the nutrient neutrality issue with its justified disgust as to the poor performance of water companies in allowing the discharge of untreated sewage to rivers and coastal waters (and the failure of the Government to hold those companies properly to account). I set out in my 9 September 2023 blog post LURB Lords Latest the kicking that the Government received on the proposal in the Commons on 5 September. 

As at 5 September Labour appeared to be sitting on the fence as to whether it would support the proposal but once they came out against it on 12 September 2023 (proposing an alternative amendment which was subsequently withdrawn during the debate without a vote) I would suggest that the writing was on the wall. As a sign perhaps of the Government’s desperation,  DLUHC published a late lobbying document in the form of the nutrient neutrality announcement: explanatory paper (11 September 2023).

The Government amendment was rejected 192 votes to 161. And that folks is that. Procedurally it cannot be reintroduced into the Bill when it returns to the Commons. Nor in my view is there time for a fresh Bill. 

What lessons to draw?

  • The Government moved far too slowly. Clive Betts nailed in it the 5 September 2023 debate: “This is hardly a new problem, is it? The Court decision was in 2018, yet last year we had the levelling-up Bill, which was really a planning Bill with a bit of levelling up added on—no mention of the issue there. In December we had major consultations on changes to the national planning policy framework—no mention of the issue there. The Committee wrote to the Minister and asked how many more consultations on planning issues there would be this year. We were given nine of them—no mention of the issue there. If it is such a serious issue, why has it taken the Government so long to act? It looks like the Government are making it up as they go along. This is a panicked response from the Government to the collapsing numbers of housing starts which the Minister simply wants to do something—anything—about.”
  • As a result of moving too slowly, it brought forward a proposal which had not been tested by way of any consultation whatsoever. Nor plainly had it been the subject of any cross-party agreement. Nor it seems had the Office for Environmental Protection been asked to advise ahead of the amendment being tabled, nor indeed Natural England. Indeed Natural England have not made any public statement in support of the proposal! Isn’t this all politics 101?
  • There was no clear narrative that explained the precise nature of the eutrophication issue so as to separate it from other justified concerns over water quality. 

What now should happen?

  • Plainly the Government should re-double its efforts to work with affected authorities and with the water industry to introduce strategic measures to reduce nutrient deposition into watercourses which are protected as SACs and SPAs. 
  • Plainly it should be working with Natural England to ensure that Natural England is in a position where its advice to authorities can be that, due to its confidence that these reductions will take place within the required timescale, there will not be an adverse effect on the integrity of the relevant SPA/SAC as a result of the particular proposal. With that assurance, and perhaps with guidance that any effects arise largely from occupation rather than construction and that therefore there is a role for planning conditions which at least allow developers to get on with construction if they are prepared to take the risk that reductions will take place in time for occupation, there is no need whatsoever for legislation. 
  • Other neutrality issues should receive equivalent focus. It’s not all about nutrients. 
  • Why don’t I finish with a controversial idea? If, in the face of expert advice to the contrary, planning applications are still held up, why doesn’t the Secretary of State call in the relevant application, in which case he becomes the competent authority in place of the local planning authority when it comes to determining whether there is an adverse effect on the integrity of the relevant SPA/SAC?

This coming week’s Lords Built Environment Committee report on the impact of environmental regulations on development will make interesting reading. We haven’t really even started to talk about environmental outcomes reports…

Simon Ricketts, 16 September 2023

Personal views, et cetera

The Guardian, 14 September 2023

LURB Lords Latest

The Levelling-up and Regeneration Bill resumed its progress through Report stage in the House of Lords this week, with sessions on 4 and 6 September. This post seeks to identify the main amendments made in those sessions.

I know what you’re all asking – what about the Government’s late proposed amendment to address the nutrient neutrality issue (see my 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment)? That will be debated at a further session next week, on 13 September 2023. The proposed amendment was in the meantime the subject of an urgent question tabled in the House of Commons by the Green Party’s Caroline Lucas on 5 September 2023. The debate is interesting as a hint of what awaits both in the Lords on 13 September but then once the Bill returns to the Commons for its final stages:

  • The Speaker agreed that the urgent question was appropriate notwithstanding the Secretary’s written ministerial statement the previous day: “I expect Ministers to come to the House, as I did not think a written ministerial statement was the way to inform the House.”
  • On being challenged that the amendment amounted to a regression from current standards of environmental protection, the minister, Rachel Mclean responded: “It is important to consider what we are talking about here, which is unblocking 100,000 homes that add very little in terms of pollution. To be clear, our approach means that there will be no overall loss in environmental outcomes. Not only do the measures that we are taking address the very small amount of nutrient run-off from new housing, but at the same time, we are investing in the improvement of environmental outcomes. We do not agree that this is regression on environmental standards. We are taking direct action to continue to protect the environment and ensure that housing can be brought forward in areas where people need it.”
  • A nuanced question from shadow minister Matthew Pennycook:

“As a result of the Government’s failure over many years to make decisive progress in tackling the main sources of problem nutrients, namely farming and waste water treatment works, the requirements for nutrient neutrality in sensitive river catchments present a challenge to securing planning permission for new housing development. It is therefore right in Labour’s view that the operation of the rules around nutrient neutrality is reviewed with a view to addressing problematic delays and increasing the pace at which homes can be delivered in these areas.

However, we have serious concerns about the approach that the Government have decided on. Not only does it involve disapplying the Conservation of Habitats and Species Regulations 2017, but it does not legally secure the additional funding pledges to deliver nutrient management programmes and does not provide for a legal mechanism to ensure that housing developers contribute towards mitigation.

I put the following questions to the Minister: what advice did the Government receive from Natural England about potential reform of the laws around nutrient neutrality? Did it offer a view on the Government’s proposed approach? Given the amount of mitigation currently available in the pipeline, which is estimated at allowing for approximately 72,000 homes, did the Government consider an approach based on the habitat regulations assessment derogation and a revised credit mitigation system to front-load permissions and provide for future compensatory schemes? If so, why did they dismiss that option? What assessment have the Government made of the impact of their proposed approach on the nascent market in mitigation credits, and investor confidence in nature markets more generally? Why on earth do Ministers believe developers will voluntarily contribute to mitigation under the proposed approach?

Finally, the Government claim their approach will see 100,000 planning permissions expedited between now and 2030. Given that house building activity is falling sharply and the pipeline for future development is being squeezed—not least as a result of housing and planning policy decisions made by this Conservative Government—what assessment has the Department made of the number of permissions that its disruptive approach will unlock within the first 12 months of its operation?”

  • A rather pithy summation of the position, from the chair of the Levelling Up, Housing and Communities Committee, Clive Betts:

“This is hardly a new problem, is it? The Court decision was in 2018, yet last year we had the levelling-up Bill, which was really a planning Bill with a bit of levelling up added on—no mention of the issue there. In December we had major consultations on changes to the national planning policy framework—no mention of the issue there. The Committee wrote to the Minister and asked how many more consultations on planning issues there would be this year. We were given nine of them—no mention of the issue there. If it is such a serious issue, why has it taken the Government so long to act? It looks like the Government are making it up as they go along. This is a panicked response from the Government to the collapsing numbers of housing starts which the Minister simply wants to do something—anything—about.“

Turning now to the Report sessions on 4 and 6 September 2023 , I set out below the main amendments agreed upon (subject to them surviving the return of the Bill to the Commons). The full list of amendments is much longer and for the detail you can click on the following:

Hansard debate 4 September 2023

Minutes to proceedings 4 September 2023

Hansard debate 6 September 2023 (Part 1)

Minutes to proceedings 6 September 2023 (Part 1)

Hansard debate 6 September 2023 (Part 2)

Minutes to proceedings 6 September 2023 (Part 2)

[Many thanks to my Town Legal colleague Amy Penrose for detailed work on all this].

Amendment 184A

This amendment clarifies that inserted subsection (5B) in section 38 of the Planning and Compulsory Purchase Act 2004 requires a determination under the planning Acts to be made in accordance with the development plan and any national development management policies, taken together.

So the replacement to section 38 (6) would now read: “the determination must be made in accordance with the development plan and any national development management policies taken together, unless material considerations strongly indicate otherwise”. What does “taken together“ add? Perhaps to avoid an interpretation that the determination needed to be both in accordance with the development plan and in accordance with any national development management policies – instead look at it all together in applying planning judgment as to whether the determination is in accordance? It’s great being a lawyer.

Amendment 190 (tabled by Baroness Thornhill) – voted through against the Government 186 – 180

The amendment requires the Secretary of State to carry out a sustainability appraisal before designating a national development management policy; it must comply with public consultation requirements and a process of parliamentary scrutiny based on processes set out in the Planning Act 2008 (as amended) for designating National Policy Statements, and it must contain explanations of the reasons for the policy, including an explanation of how the policy set out takes account of Government policy relating to the mitigation of, and adaptation to, climate change.

Amendment 191 (tabled by Lord Ravensdale) – voted through against the Government 182 – 172

The amendment places a duty on the Secretary of State and relevant planning authorities respectively to have special regard to the mitigation of, and adaptation to, climate change with respect to national policy, local plan-making and planning decisions.

Amendment 191A (tabled by Lord Crisp) – voted through against the Government 158 – 149

The amendment specifically places a duty on the Secretary of State to promote healthy homes and neighbourhoods – a huge success for the Town and Country Planning Association’s Campaign for Healthy Homes.

(see also a detailed Schedule to be inserted into the Bill setting out for instance what is meant by healthy homes principles – amendment 191B).

Amendment 193A (tabled by Lord Best) – voted through against the Government 173 – 156

The amendment requires local plans to “identify the local nature and scale of housing need in the local planning authority’s area and must make provision for sufficient social rent housing, to eliminate homelessness within a reasonable period as stipulated in the updated local plan, and to provide housing for persons registered on the local housing authority’s allocation scheme within the meaning of section 166A of the Housing Act 1996.” It would apply both “in relation to social housing provided both by the local housing authority where it retains its own housing stock and by private registered providers of social housing”.  The information would need to be updated at least annually.

These are all significant interventions. Let’s see the approach that the Government takes back in the Commons. A motion will also be needed to carry over the Bill to the next Parliamentary session, without which we will see (wait for the LURB pun, wait for it, wait) .. LURB’s labours lost.

Simon Ricketts, 9 September 2023

Personal views, et cetera

Photo courtesy of Peter Kostov via Unsplash

Quids No Pros

If you pay planning application fees, or are a planner whether private or public sector, you may feel somewhat cheated by the Government’s 25 July 2023 response to its February 2023 technical consultation Stronger performance of local planning authorities supported through an increase in planning fees.

The development sector has made it clear for a long time that it is generally willing to pay more to planning departments by way of increased planning application fees if the money enables those departments to be better resourced. Accordingly there was widespread support for most of the proposals within the consultation paper. The whole thrust of the consultation paper was that the government accepted that “local planning authorities need more resource in order to perform their critical social, economic and environmental functions on planning effectively”. Also that the government was “only prepared to introduce fee increases if planning performance also improves. We want to ensure that all applicants experience a high-quality and timely service. This consultation therefore also proposes a new approach to how the performance of local planning authorities is measured across a broader set of quantitative and qualitative measures. This will provide greater transparency of service delivery and earlier and more targeted support to local planning authorities where needed.”

Obviously significant increases in planning application fees would not be likely to lead to improvements in the operation of the system, and indeed would simply place a more onerous financial burden on applicants, if the additional income were not ringfenced to be spent on maintaining or improving planning services. Whilst improved performance may not all be about money, when it comes to significant hikes in planning application fees, more money, better services, that’s the quid pro quo.

The consultation document addressed the issue directly:

“The purpose of planning application fees is to enable a local planning authority to perform the statutory function of processing planning applications. However, we recognise that planning budgets are not ringfenced which means that planning fees often can be diverted as part of a wider corporate budget priorities to support other council services. This can limit the benefit of any increase in planning fees.

To ensure that the proposed additional fee income directly supports increased resourcing of local authority planning departments, it is sometimes suggested that planning fees should be ringfenced to planning services only. This would enable direct improvements in service delivery but does undermine the general flexibility afforded to local authorities on their wider financial management. We are seeking views on whether the additional income arising from the proposed fee increase (35% for major applications, 25% for all other applications) should be ringfenced for spending within the local authority planning department. Past increases have required a written commitment from all local planning authorities in advance of implementation.”

The question was asked:

“Question 7. Do you consider that the additional income arising from the proposed fee increase should be ringfenced for spending within the local authority planning department?

Yes/no/don’t know. Please give your reasons.”

The response document sets out the significant increases that are to be introduced by way of draft Regulations laid before Parliament on 20 July 2023 – basically:

  • Application fees for major development (broadly speaking 10 dwellings or more or if non-residential 1,000 sq m or more) to be increased by 35% and for other forms of development by 25%.
  • Annual inflation indexation from 1 April 2025.
  • Removal of the “free go” (for repeat application within 12 months).

The response document records that the responses to the consultation document were “generally very supportive of the measures to increase planning fees, recognising the importance of securing additional income for local planning authorities”. But hang on! Look at the response to question 7, as to whether the additional income should be ringfenced for spending within the local authority planning department:

“A total of 457 respondents answered this question. There was strong support for this proposal to ringfence the additional income generated by the increase in fees. 88% agreed with the proposal, 8% did not and 4% didn’t know.

Respondents considered that ringfencing was needed to justify the increase in fees and to ensure the additional resources directly lead to improvements in performance. The extra income could be used to expand planning teams (by providing higher salaries to attract planners from private sector, training and development of planners) and improve IT systems. Many suggested that all fee income should be ringfenced for planning. On the implementation of ringfencing, others commented that resources were needed across other areas of the local authority which provided input into planning decisions, including highways, environmental health, ecology, design, drainage and heritage, so any ringfencing conditions needed to be flexible enough to allow these to be funded too.

Those who did not agree were concerned that ringfencing removed flexibility over spending decisions from local authorities. Some were concerned that ringfencing could be difficult to implement and monitor. Some considered that local planning authorities may not end up with more resources if the projected additional fee increase was netted off the baseline budget.”

88% per cent in favour. A no brainer in the circumstances one would think.

The Government’s response?

“We welcome the strong support for this proposal. We want to ensure that the fee increase results in additional funds being available to local authority planning departments, but we will not take ringfencing forward through legislation as this would impose a restriction on local authorities when they are best placed to make decisions about funding local services, including planning departments. However, we would expect local planning authorities to protect at least the income from the planning fee increase for direct investment in planning services.”

No ring-fencing. It will be left to local authorities to make that decision..

This is hugely unfair. It is unfair on local authorities with severe financial constraints such that they will need to consider whether they can afford to ringfence these monies on a voluntary basis or to use them to maintain other statutory services. No doubt heads of planning will have a limited say in that particular tug of war. It is also unfair on applicants because this significant hike in fees was to secure stronger performance from local planning authorities (see the very name of the consultation document!) – that is the only reason why it was supported.

The other important element of the proposals consulted upon was the proposed introduction of a series of new detailed metrics against which local planning authority performance can be measured. Whilst I recognise that the information gathering in itself would have been onerous, we know that what’s measured does get valued and the statistics would be useful both internally within authorities (so as to make the case for better resourcing) and externally to drive better performance. The government’s response again is in my view rather a cop-out:

“In relation to planning performance, we are grateful for the wide range of comments that have been received, relating to how we can better assess the speed of decision-making through both amending existing metrics and introducing new ones, and in response to proposed new quantitative metrics which could allow performance to be measured more widely across a range of important planning functions. We are also grateful to hear a range of feedback on our proposals to introduce qualitative metrics, including customer experience, which could capture a more holistic picture of the quality of service delivery within planning departments. This feedback is highly valued and will be drawn upon as we develop our proposals for a new planning performance framework.

We are clear that an increase in planning fee income and resourcing to local planning authorities must lead to improved performance. It is our intention to introduce a new planning performance framework once we have increased planning fees and invested in supporting the capacity and capability of planning departments. However, we recognise that local planning authorities need a period of adjustment to any new planning performance framework, and we would reiterate our commitment to consult further on detailed proposals, including thresholds, assessment periods and transitional arrangements from the current performance regime.”

There is no reason why performance measurement should not start now – let’s get to the bottom of how bad the problems currently are. It’s almost as if the Government doesn’t want to find out…

I know the Government will point to different funding streams it is making available to support capacity and capability in planning departments, for instance to the statement in Michael Gove’s long-term plan for housing 24 July 2023 announcement that the government is taking other steps to “unblock the bottlenecks in the planning system that are choking and slowing down development, and stopping growth and investment by:

  • Launching a new £24 million Planning Skills Delivery Fund to clear planning backlogs and get the right skills in place.
  • Establishing a new “super-squad” team of leading planners and other experts charged with working across the planning system to unblock major housing developments, underpinned by £13.5 million in funding. The team will first be deployed in Cambridge to boost our plans in the city, before also looking at sites across our eight Investment Zones in England, to provide high-quality homes to go alongside the high-quality jobs being created there.”

That is cautiously welcomed. But it does not change my three conclusions:

  • Personally I think that the “no ringfencing” decision should be re-considered.
  • Surely we need better performance metrics now, not some time in the indeterminate future
  • There really does appear to be little point in responding to Government consultation processes when a 88% response one way or the other ultimately counts for nothing (and when perhaps a substantial proportion of the 88% would have responded differently to the questions about application fee increases if the assumption had been that the increases would not be ringfenced).

Plenty of quids, no pros.

Final thought – the Government has previously floated, in Planning for the Future, the idea of introducing planning appeal fees. Personally, my view is that if the fees genuinely increased resources and sped up the system, why ever not? Nothing else comes free.

Simon Ricketts, 1 September 2023

Personal views, et cetera

Image courtesy of Christopher Bill via Unsplash

The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment

No-one should be playing party politics with the nutrient neutrality issue. It’s difficult. It needs to be fixed. This is a quick post just to try to head off some of the comments that I have seen on social media today because the urgent need for a solution is in danger of being subsumed by general scepticism of this Government, exacerbated by the way that water companies have been allowed to fail in relation to water supply and sewage discharges. I write this on the back of Nicola Gooch’s excellent blog post this morning, LURB Watch: Government confirms Nitrates’ amendments to be tabled in House of Lords shortly  but since then we now have the proposed amendments to the LURB.

First of all, the basics:

House building is not the reason why some rivers and coastal waters around the country, protected as special areas of conservation or special protection areas by way of EU-derived legislation, are at or beyond a tipping point for the ecological integrity of those areas. Instead this is largely due to the historic run off of nitrates and/or phosphate from farm land and the inadequacy of our water infrastructure.

But the consequences of outflows from new housing has been seen by Natural England as the straw that would break the camel’s back and therefore its advice to local planning authorities faced with planning applications in affected catchments has been, in summary, not to approve them (and not to approve reserved matters applications or discharge pre-commencement conditions) unless the particular scheme can be shown to be nutrient neutral, given that otherwise in its view the “appropriate assessment” test in the Conservation of Habitats Regulations 2017 cannot be met, ie that the proposal will not adversely affect the integrity of any protected area.

So housebuilding has in practice been halted in various areas of the country until solutions can be implemented that demonstrably deliver nutrient neutrality.

To underline, this is not mainly about the polluting effects of new homes – it is about pre-existing problems.

I’ve written about the issues on various occasions, eg most recently in my 26 November 2022 blog post Nutrient Neutrality: Possibly Good News & Possibly Bad News and in my 6 June 2023 blog post CG Fry: AA Post PP.

The Government plainly recognises that the problem needs to be addressed. The current position, where so many schemes are stalled, is ridiculous and out of proportion to the extent to which housebuilding is actually the issue.

Right, so what is the Government’s solution?

Following Michael Gove’s press statement today, 100,000 more homes to be built via reform of defective EU laws  (29 August 2023), the latest tranche of tabled amendments ( https://bills-api.parliament.uk/api/v1/Publications/52407/Documents/3872/Download ) to the Levelling-up and Regeneration Bill have now been published, which include a number of amendments to the Conservation of Habitats Regulations.

The key proposed amendment is to introduce a new regulation 85B into the 2017 Regulations (see pages 19 and 20 of the pdf). Sub-paragraphs (2) and (3) would read as follows:

“(2) When making the decision, the competent authority must assume that nutrients in urban waste water from the proposed development, whether alone or in combination with other factors, will not adversely affect the relevant site.

(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors, is not a ground for the competent authority to determine that—

(a) an appropriate assessment is required by regulation 77(6), or

(b) the proposed development will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.”

Strengthened duties on water companies by way of their environmental permitting processes are also proposed in the amendments, but this is radical!

If enacted, it would certainly enable permissions, reserved matters approvals and pre-commencement conditions to be unjammed. On balance in my view it is to be supported. However, the Government does need to be ready with answers to questions like these:

  1. Given that the Government has committed to no regression from the environmental protections that we enjoyed pre-Brexit (NB Mr Gove, don’t give me that “defective EU laws” politicking – it’s our water system and environmental permitting system that is defective not the underlying law!), why does this not amount to regression? In its defence no doubt the Government would point to the commitments in the press statement not just to “significantly expanding investment in and evolving the Nutrient Mitigation Scheme run by Natural England, doubling investment to £280m to ensure it is sufficient to offset the very small amount of additional nutrient discharge attributable to up to 100,000 homes between now and 2030” but also the package of longer term measures that are set out in detail in the statement. But if these commitments are solid enough to be relied upon, why can’t they just be taken into account in determining that there will not be an adverse effect on the integrity of the relevant protected area? Why isn’t the Government confident that this would be Natural England’s advice? Wouldn’t that be a more legally coherent strategy than simply taking nutrients issues out of the appropriate assessment process? And if Natural England can’t sign that position off in relation to any particular protected area, doesn’t that rather have the whiff of regression?
  1. What about developers who have signed up to expensive nutrient neutrality schemes or are negotiating at present if the Government is effectively now removing the issue from their plate? Or will Natural England and local authorities still raise the nutrients issue by way of objection to proposals in planning terms, even if no longer able to wave the Conservation of Habitats Regulations big stick? Is it indeed right (or even envisaged) that developers should be let entirely off the hook?
  1. What about the water neutrality issue in Sussex, which has led to an equivalent logjam, or issues as to recreation impacts in other areas of the country? Similar principles surely apply.
  1. Will Parliament allow the Government to get away with shoehorning this set of provisions into the Bill at this late stage (see the comments in Nicola’s post) and what does it mean for the timing of Royal Assent? How confident can we be that the provisions will (a) survive to Royal Assent and (b) be brought into force?

These are just initial thoughts. Better informed commentary very welcome.

Simon Ricketts, 29 August 2023

Personal views, et cetera

Local Plans System Fails Soundness Test

A vision softly creeping, left its seeds while I was sleeping:

Why don’t we test the whole local plans system against the soundness requirement in paragraph 35 of the National Planning Policy Framework?

Of course it’s not an exact fit but what’s sauce for the goose is sauce for the gander (an expression which also occurs to me whenever we have criticism from Government directed at local authorities for not moving faster). Is the current local plans system, for instance:

  • positively prepared
  • justified
  • effective
  • consistent with national policy?

Plainly not.

Is it a strategy which, as a minimum, seeks to meet the country’s objectively assessed needs? First of all, the 300,000 homes target, whilst undoubtedly being too low, has not been objectively assessed (so as, if nothing else, to reassure the sceptical) and secondly there is an increasing disconnect between that aspiration and local plan making reality.

Is it an appropriate strategy, taking into account the reasonable alternatives, and based on proportionate evidence? Reasonable alternatives? Evidence? Not how national policy-making seems to work.

Deliverable? Of course not.

Consistent with (other) national policy? Given the vital policy objectives to be delivered by proper forward planning – housing, economic growth, climate change mitigation, levelling up – again it’s a no.

I also query whether the proposed changes in the Levelling-up and Regeneration Bill and more detailed implementation proposals, currently being consulted upon, would get to the root of the problems.

This thought occurred when reading the Tandridge local plan inspector’s 10 August 2023  letter to the council’s chief executive, in which the inspector (Philip Lewis) concludes that his concerns as to the soundness of the plan are such that he invites the council to withdraw it, failing which he will write a report setting out his reasoning.

His letter follows a procedural meeting on 27 July 2023 which you can watch on line here . A detailed paper was provided for the inspector by the council ahead of that meeting as a final, unsuccessful, attempt to avoid this outcome. The council issued a statement on 22 August 2023 indicating that it will look to resolve its response to the inspector’s letter at a meeting of the council’s planning policy committee on 21 September 2023.

I was taken back to the opening day of that examination, 8 October 2019, on legal compliance. I’m not sure that I have ever been at a local plan examination session with quite so many lawyers in attendance (not a good thing).

Mr Lewis’ concerns include:

  • unresolved highway capacity issues following the subsequent refusal of HIF funding for transport infrastructure, including works to junction 6 of the M25 on which the deliverability of the south of Godstone new settlement option was predicated– together with the consequent need for further lengthy transport assessment and modelling work
  • the need for the sustainability appraisal to reconsider reasonable alternatives in the light of the change in circumstances
  • the need for the council’s 2017 Gypsy and Traveller Accommodation Assessment to be updated.
  • The fact that we are already half way through the plan period of the submitted plan which is 2013 to 2033 (incidentally is there anything more absurd than these plans which literally are planning for the past?)
  • The fact that much of the evidence base for the plan is now out of date, given for instance changes in the Use Classes Order.

Of course, it took time for the scale of the problems facing the council to become clear, particularly on the question of the deliverability of the south of Godstone new settlement proposal once the Government had refused HIF funding for the necessary infrastructure improvements. I know that it is in the public interest that plans generally should not be found unsound and that time should be given to enable plan-making authorities to do what may be needed to arrive at a sound plan, but was it necessary for the process to take almost four years before we finally get to a conclusion that has seemed on the cards for a long time now, sending the authority right back to the beginning?

I don’t want to make this a piece about the Tandridge plan and its site-specific issues. Because, if you have been out of the country for a few years I can reassure you that the York examination is also still underway – the first hearing session having been on 10 December 2019 – and indeed the Welwyn Hatfield examination is still underway – the first hearing session having been on 21 September 2017!

There is a common factor with all three examinations: these are authorities with large areas of green belt within their boundaries and where their local housing needs cannot be met without releasing land from the green belt, leading to politically-charged debates as to

  • the extent to which any planned shortfall is acceptable;
  • whether sufficiently exceptional circumstances can be demonstrated so as to justify release;
  • the selection of appropriate sites (including the extent to which there is reliance on new settlements rather than more dispersed patterns of growth); and as to
  • whether the selected sites are in fact deliverable.

In areas where housing supply is so constrained, and without any definitive Government guidance as to how these matters are to be resolved, or required timescale for so doing, or consistent, credible, penalties for not having an up to date plan in place, is it any wonder that we are where we are?

To the extent that the Government’s planning reforms would:

  • weaken the role of the standard method as a starting point for determining how many homes need to be planned for;
  • remove any requirement for authorities to review green belt boundaries to meet housing needs;
  • replace the duty to cooperate with an undefined “alignment” test, and
  • propose removing the “justified” limb of the soundness test

how precisely would these changes assist in say Tandridge, York or Welwyn Hatfield?  Would the idea be to allow the authority the freedom to plan to undershoot its local needs by a huge margin and simply accept the consequences of the lack of supply of homes for those needing to live in those areas – for family connections or work or for the sake of achieving balanced communities rather than the lucky few behind a raised drawbridge, perish the thought – to allow the situation to reach boiling point? The process improvements set out in the LURB will help at the margins but will not ease (1) the difficult local politics of arriving at a sensible plan for submission or (2) the difficult task of the inspector at examination (it’s not the local development management policies, or the lack of digital planning, or even the extent of supporting evidence required, which has held up these plans!).

Not only have we had these marathon local plan examinations, akin to the infamous (at the time, maybe now forgotten) Leeds local plan inquiry, the length of which I recall as one of the catalysts for the 2004 Act system in the first place, but we are also seeing authorities trying to read between the lines as to the latitude they perceive that they may now have.

For instance, take Three Rivers Council which has now torn up its draft plan and published a statement announcing that is starting work on an alternative plan that will “protect 98% of [its] precious green belt”, proposing that “the new housing figure for the district over the next 18 years should be 4,852 as opposed to the Government’s high target of 11,466.”

Or take Lichfield District Council which today (25 August 2023) announced that it was proposing to withdraw its submitted plan from examination:

“Councillor Alex Farrell, Portfolio Holder for Housing and the Local Plan, says “It is clear to me that our proposed new Local Plan is not suitable, and I’d like to see a new approach to housing that suits our local communities. We want to explore the idea of a new settlement in the district, as opposed to the current approach that is suffocating local communities with a disproportionate amount of housebuilding without sufficient infrastructure.”

He continues “It’s clear that the proposed new Local Plan 2040, which was submitted for examination last year, was not appropriate given both the changes that we have seen (and continue to see take place) in government national policy in the four years since it was initiated, plus the level of dissatisfaction we heard from residents about it in its current form.  It became evident that the proposed Local Plan no longer resonates with the evolving needs of our district, and we needed to change.  

“We only have two options. One; progress with the currently submitted plan or two, regroup and build a strong, strategic vision for the district that people can support and adopt. We recommend that we take the second option to deliver a strategy that is appropriate for the district today, and in the future, and therefore our recommendation is to withdraw the current plan and work in consultation with our residents and stakeholders to develop a new approach.” 

When is the Government going to stabilise what, in local plan making terms, seems to me to be equivalent to a run on the markets? (Although in the world of planning that’s obviously a very slow walk rather than anything approaching a run).  I’ve previously described Michael Gove’s statements on planning reform as akin to Trussenomics in terms of the (presumably wholly unintended) effect that they have been having on plan making. How else to describe it? Doesn’t something need to be said…?

The sounds of silence.

Simon Ricketts, 25 August 2023

Personal views, et cetera

Second Staircases: Just One Specific Example Of How DLUHC’s Announcements Could Be Improved

I wrote about the impending changes to the Building Regulations in my 7 January 2023 blog post, Tall Buildings & Fire Safety. At that point the Government was proposing various amendments including a threshold whereby residential buildings above 30 metres in height should be designed and built with two staircases. A “very short” transition period was proposed:

“59. The transition period will allow time for schemes to be completed but should not allow the opportunity for developments to get off the ground ahead of the new requirements coming into effect.

60. We would encourage all developments to prepare for this change now.”

Why 30 metres?

“30 metres is an accepted threshold for increased safety measures such as increased fire resistance provisions and marks a recognised trigger representing an increase in the level of risks in buildings overall. We therefore propose to introduce a new trigger in Approved Document B making provisions such that new residential buildings more than 30 metres are provided with a second staircase.”

The Government when publishing the consultation paper will have been aware that that the National Fire Chiefs Council had sought an 18 metres threshold – already the threshold in Scotland.

Now I don’t know whether 30 metres is the appropriate height – I’m told it is roughly equivalent to 10 storeys and that 18 metres is roughly equivalent to six or seven storeys  – but that’s not the point of this blog post. Developers have amended their proposals to address what they understood to be the impending 30 metre requirement. Indeed they were specifically encouraged to by the consultation document! Of course there was no certainty pending the outcome of the consultation process but given the additional cost and consequent effect on viability of providing second staircases within buildings under 30 metres that was surely a reasonable stance to take.

Then, deep within Michael Gove’s 24 July 2023 long-term plan for housing press statement, is this statement:

“This long-term plan for housing therefore builds on our existing progress by:

  • Confirming the intention to mandate second staircases in new residential buildings above 18m, following confirmation from expert bodies that they support this threshold. This responds to the call from the sector for coherence and certainty. This is a considered and gradual evolution of safety standards, which, when taken with our other fire safety measures and reforms ensures the safety of people in all tall buildings – both new and existing. The government is clear that this new regulation cannot jeopardise the supply of homes by disrupting schemes that have been planned for years. DLUHC will work rapidly with industry and regulators over the summer to design transitional arrangements with the aim of securing the viability of projects which are already underway, avoiding delays where there are other more appropriate mitigations.”

And in his actual speech the statement that the Government is “providing much-desired clarity to builders that 18m will be the threshold that we will introduce for new buildings requiring second staircases. And of course there will be transitional arrangements in place to make sure that there is no disruption to housing supply.”

So a significant u-turn:  18 metres after all rather than 30 metres.

The big practical questions are:

  • What will the specific transitional provisions be so as not to “jeopardise the supply of homes by disrupting schemes that have been planned for years“?
  • Will we have any clarity before the amended Regulations are laid before Parliament?
  • When is the earliest that the amended Regulations will take effect?
  • Should this likely change directly affect decisions on planning applications in any event, given separate operation of the Building Regulations regime? To what extent should planners have to second-guess what may or may not be acceptable under the Building Regulations and the nature of any transitional arrangements? And is stronger guidance needed to encourage authorities to treat positively any subsequent applications to amend permissions if amendments are required to meet Building Regulations changes (and potentially to take into account any consequent impact on viability)?

Surely, if DLUHC were seeking to give “much-desired clarity to builders” and avoid “jeopardising the supply of homes“, the 24 July announcement would have been accompanied by a formal reasoned response to the consultation process and certainty that regardless of the detail of the transitional arrangements, the amended Regulations would definitely not catch, for instance, planning applications submitted before that announcement.

Instead, whenever any of us engaged with these issues bump into each other this summer, the topic of conversation – after holidays, the weather and the Government – will continue to be “have you heard anything as to the likely 18 m transitional arrangements?”

Simon Ricketts, 12 August 2023

Personal views, et cetera

Relativity by M.C. Escher, courtesy of Wikipedia

Does The Government Have An Environmental Strategy Or Is It More Of A Tactic?

First, a scary graph:

(Source: BBC news piece, Ocean heat record broken, with grim implications for the planet)

The extent of the climate crisis is becoming plainer by the month. The UN Secretary General Antonio Guterres was reported on 27 July 2023 as saying that the era of global warming had ended and that the era of “global boiling” had arrived. July 2023 was the world’s hottest month on record. I saw a retired housebuilder scoff on LinkedIn that he had never heard anything as ridiculous as “global boiling”. I found that quite triggering in the current context and so apologies that I am not writing this week about any interesting planning law cases.

Instead, not in any way as an expert, but instead as a confused citizen, I’m asking myself…

What is the government’s current strategy on climate change and the environment, in the light of, for instance, the Prime Minister’s comments in the Telegraph on 29 July 2023 about being on the side of motorists and announcing on 31 July 2023 hundreds of new North Sea oil and gas licences to boost British energy independence and grow the economy?

I’m reminded of the “Be a strategist” chapter in Alastair Campbell’s book But What Can I do? Strategy = OST:

“O = Objective (what you want to achieve)

S = Strategy (‘the big how’: your definition of the overall approach)

T = Tactics (the detailed plans required to execute the strategy)“

Surely, the objective is, and should remain, to do all that we can do as a leading developed nation to encourage the world to combat the climate crisis.

I thought the Government’s strategy was well-documented, set out in its Net Zero Strategy: Build Back Greener (updated 5 April 2022) (reviewed earlier this year by Chris Skidmore – see my 21 January 2023 blog post Mission Zero Needs Planning) and by way of its longstanding commitments set out in the Climate Change Act 2008 , policed by the Climate Change Committee which was established for that purpose, including the objective of achieving net zero by 2050. You can question whether the strategy is ambitious enough but there it is.

The tactics to be deployed to achieve the objective are all of those individual measures set out and flowing from the strategy, including those set out in the Government’s 2023 carbon delivery plan.

However, I’m sensing that the prime minister’s OST instead may currently look like this:

O = Secure re-election or at least not too heavy a defeat

S = Win votes via populist “culture war” issues; have any sort of positive economic narrative come election time

T = Noise about eg being on the side of the motorist; prioritising economic growth over the net zero programme.

Of course, any debate on these issues gets bogged down in complexity. Argue about the stats, the projections and promised protections (carbon capture and storage etc etc), anything but just Don’t Look Up!

Perhaps let’s turn to that body that was set up by the 2008 Act. The Climate Change Committee published its 2023 Progress Report to Parliament on 28 June 2023). Reviewing the Government’s March 2023 Carbon Budget Delivery Plan  and the Government’s wider policy development, the CCC’s key messages are:

  • “A lack of urgency. While the policy framework has continued to develop over the past year, this is not happening at the required pace for future targets.
  • Stay firm on existing commitments and move to delivery. The Government has made a number of strong commitments, these must be restated and moved as swiftly as possible towards delivery.
  • Retake a clear leadership role internationally. The UK will need to regain its international climate leadership.
  • Immediate priority actions and policies. Action is needed in a range of areas to deliver on the Government’s emissions pathway.
  • Develop demand-side and land use policies. The Government’s current strategy has considerable delivery risks due to its over-reliance on specific technological solutions, some of which have not yet been deployed at scale.
  • Empower and inform households and communities to make low-carbon choices. Despite some positive steps to provide households with advice on reducing energy use in the last year, a coherent public engagement strategy on climate action is long overdue.
  • Planning policy needs radical reform to support Net Zero. The planning system must have an overarching requirement that all planning decisions must be taken giving full regard to the imperative of Net Zero.
  • Expansion of fossil fuel production is not in line with Net Zero. As well as pushing forward strongly with new low-carbon industries, Net Zero also makes it necessary to move away from high-carbon developments.
  • The need for a framework to manage airport capacity. There has been continued airport expansion in recent years, counter to our assessment that there should be no net airport expansion across the UK.”

Alongside the report the following supporting research was published:

This all pre-dated last week’s oil and gas licensing announcement. Is there any case in 2023 for further extraction of fossil fuels? The CCC’s outgoing chair Lord Deben however made his views clear in a 3 August 2023 article for New Statesman: North Sea licences tell big oil we’re not serious about net zero.

And what about this stuff about being on the side of the motorist? It’s surely all adding up to a growing, tactical, culture war around climate issues. By-elections can unexpectedly become policy inflexion points – as we saw with the Chesham and Amersham by-election result in June 2021 that effectively scuppered a previous attempt to reform the planning system. Both main parties took from the 20 July 2023 Uxbridge and South Ruislip result that the Conservative candidate’s achievement in narrowly holding onto the seat was down to the unpopularity of London Mayor Sadiq Khan’s programme to extend the Ultra Low Emission Zone to outer London. Hence Keir Starmer’s disappointing wobble the next day but also, in spades, the Tory response. Here was an issue to rally behind, supposedly in support of those not able to afford to replace their older vehicles with ones which would be ULEZ compliant (although that fox has probably been shot by Khan’s 4 August Mayor announces massive expansion of scrappage scheme to all Londoners) but more widely an opportunity to mine a “pro-car”/anti- regulation seam – hence also the prime minister’s announced review on low traffic neighbourhoods. The Local Government Association’s view is clear: Councils best placed to make decisions with communities (30 July 2023). But this is a culture war – if local government folk (and probably people like you and me too) object, so much the better, is likely to be some political strategists’ thinking. And of course, along with all the political brouhaha come the inevitable legal challenges – on 28 July 2023 Hillingdon, Bexley, Bromley, Harrow and Surrey Councils failed in their judicial review of the proposed ULEZ expansion.

Let me throw in here some commentary more rooted in planning law. I was interested to receive a comment on my recent blog post about the M&S Oxford Street decision letter. The comment was along the lines of whether there was anything to stop M&S in any event demolishing the building, unlisted, not in a conservation area, relying on the prior approval right to do that in the General Permitted Development Order. This really does illustrate the lack of joined up thinking in planning legislation. Should demolition be more closely regulated? Why, when there is current consultation on possible changes to the General Permitted Development Order, and if minimising the loss of embodied carbon is now a Government objective (no clear policy on that, we are left reading between the lines), is there still, for instance, the demolition and rebuild (with 1,000 sq m cap)  commercial to residential right, only introduced in 2020?!

Finally, to hear views and debate on the Government’s recent announcements on planning reform that were the subject of my blog post last week The Message, you can listen back to our two hour-long Clubhouse sessions on the issues – here for the discussion of Michael Gove’s 24 July statement as to his long-term plan for housing and here for detail on proposed reforms to plan-making, the GPDO and application fees. And although I’m not wedded to the idea unless there is real interest, if anyone would like to speak at a future Clubhouse session about the issues in this blog post then let me know.

And final final plug – there’s a very small but growing planning community on Threads, which is certainly improving as a more wholesome alternative to Twix (they have largely sorted out the issues which initially were so annoying for people). Feel free to join by downloading the app via Apple’s App Store or Google Play for Android – still only by mobile device, although that will change in the next few weeks. An interesting time lies ahead and I’m feeling that we are going to need to share our thinking…

Simon Ricketts, 5 August 2023

Personal views, et cetera

Image courtesy of Don’t Look Up (Netflix)