Apparent Bias, Unfair Hearings

The continuing to-do about Secretary of State’s admission of “apparent bias” in the Westferry Printworks case got me thinking about other apparent bias cases and the overlap with the right to a fair hearing – basically as an excuse to mention this week’s startling case from the Supreme Court, Serafin v Malkiewicz (Supreme Court, 3 June 2020). All the cases in this bias/unfair hearing area have a gossipy, “you need to have been there”, feel to them, and there are lessons in all of them for all decision-makers.

After all, for all the constant chatter about the rights and wrongs of our planning system, at its very root it needs to be fair, and seen as fair. Aside from a being fundamental principle of our legal system, the right to a fair hearing in front of an independent and impartial decision maker is also given force by way of Article 6 of the European Convention on Human Rights:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”

Serafin v Malkiewicz

Serafin v Malkiewicz is nothing to do with planning law. It concerns a libel action brought by a litigant in person who found himself against not so much the barrister on the other side but against the judge, Jay J (yes, really, non-lawyers, Jay J). He lost, badly. The Supreme Court judgment, by Lord Wilson attaches a schedule of extracts from the hearing in front of Jay J, which make truly excruciating reading – really and truly, an object lesson in how not to preside over any sort of hearing, let alone in relation to a litigant in person for whom English was not his first language. Imagine an inspector behaving in such a way.

The Supreme Court did not treat the issue in the case as one of potential apparent bias but as to whether the hearing had been fair. It referred to the distinction between the two principles, as described by Hildyard J in M&P Enterprises (London) Limited v Norfolk Square (Northern Square (Northern Section) Limited (High Court, 12 October 2018, namely that whereas “the fairness of a trial required objective judicial assessment, the appearance of bias fell to be judged through the eyes of the fair-minded and informed observer”.

… it is far from clear that the observer would consider that the judge had given an appearance of bias. A painstaking reading of the full transcripts of the evidence given over four and a half days strongly suggests that, insofar as the judge evinced prejudice against the claimant, it was the product of his almost immediate conclusion that the claim was hopeless and that the hearing of it represented a disgraceful waste of judicial resources.”

“… when one considers the barrage of hostility towards the claimant’s case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven, with profound regret, to uphold the Court of Appeal’s conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair. Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented. It was ridiculous for the defendants to submit to us that, when placed in context, the judge’s interventions were “wholly justifiable”.”

The Court of Appeal had similarly concluded that the hearing had been unfair but had only concluded that part of the case be heard again. The Supreme Court went further:

“Lord Reed observed during the hearing that a judgment which results from an unfair trial is written in water. An appellate court cannot seize even on parts of it and erect legal conclusions upon them. That is why, whatever its precise meaning, it is so hard to understand the Court of Appeal’s unexplained order that all issues of liability had, in one way or another, been concluded. Had the Court of Appeal first addressed the issue of whether the trial had been unfair, it would have been more likely to recognise that the only proper order was for a retrial. It is no doubt highly desirable that, prior to any retrial, the parties should seek to limit the issues. It is possible that, in the light of what has transpired in the litigation to date, the claimant will agree to narrow the ambit of his claim and/or that the defendants will agree to narrow the ambit of their defences. But that is a matter for them. Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full retrial.”

Porter v Magill

The classic articulation of the apparent bias test is by Lord Hope in Porter v Magill (House of Lords, 13 December 2001): the “question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

Porter v Magill was of course part of the Lady Porter/Westminster City Council “homes for votes” saga. An auditor, John Magill, had been appointed to consider whether “three councillors and three officers had, by wilful misconduct, jointly and severally caused a loss of approximately £31m to the council which they were liable to make good.”

One of the councillors’ grounds of appeal against Mr Magill’s findings of the auditor, John Magill, was on the basis of apparent bias evidenced by the manner in which, ahead of his full inquiry, he had announced his provisional findings:

“A televised announcement was arranged at which the auditor himself appeared and, although he said that his views were provisional, he expressed them in florid language and supported them by reference to the thoroughness of the investigation which he claimed to have carried out. There was a further feature of the event which should have had no place in the middle of a quasi-judicial inquiry. A stack of ring binders on the desk at which the auditor sat bearing the name of his firm for the benefit of the cameras was, ostensibly, under the protection of a security guard: unless it was being implied that the persons under investigation might wish to steal the documents, it is not clear what was the purpose of this posturing.”

The court did not accept that there was apparent bias. In the words of Lord Hope:

“I think that it is plain…that the auditor made an error of judgment when he decided to make his statement in public at a press conference. The main impression which this would have conveyed to the fair-minded observer was that the purpose of this exercise was to attract publicity to himself, and perhaps also to his firm. It was an exercise in self-promotion in which he should not have indulged. But it is quite another matter to conclude from this that there was a real possibility that he was biased…. The auditor’s conduct must be seen in the context of the investigation which he was carrying out, which had generated a great deal of public interest. A statement as to his progress would not have been inappropriate. His error was to make it at a press conference. This created the risk of unfair reporting, but there was nothing in the words he used to indicate that there was a real possibility that he was biased. He was at pains to point out to the press that his findings were provisional. There is no reason to doubt his word on this point, as his subsequent conduct demonstrates. I would hold, looking at the matter objectively, that a real possibility that he was biased has not been demonstrated.”

Broadview Energy

Turning to a case with greater similarities to the Westferry Printworks situation, in Broadview Energy Developments Limited v Secretary of State (Court of Appeal, 22 June 2016) the Court of Appeal deprecated informal lobbying attempts by MPs, in that case Andrea Leadsom MP’s attempts to stop a wind farm scheme, with a conversation in the Commons tea-room and numerous emails from her to the minister, including one referring to her “badgering [him] in the lobby”. Longmore LJ in that case indicated that he “would not endorse that part of the judge’s judgment [at first instance] in which he said that lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP with its implication that such lobbying was permissible even when the Minister is making a quasi-judicial decision in relation to a controversial planning application. MPs should not, with respect, be in any different position from other interested parties.”

The court’s deprecation fell short of determining that the decision was as a result unlawful. On the specific question of bias:

“Nor do I think it arguable that a well informed observed would consider that there was a real possibility of bias on the part of Mr Hopkins. The well-informed observer would know that it was the responsibility of the relevant Minister to make difficult decisions about controversial projects such as on-shore wind farms. He would also know that sometimes such decisions are, as this one was, finely balanced. He would not think that a Minister’s decision in favour of a vocal body of local objectors supported by their local MP showed any bias against the promoter of the wind farm project. He would accept that the Minister had to make a decision one way or the other and think that the parties should accept the outcome.

Nevertheless the accusation of bias made in this case shows how important the principle is that Ministers making planning decisions should not allow themselves to be lobbied by parties to the planning process or by local MPs. If they do allow it, accusations of bias are all too easily made however unjustified they may be once the proper principles exemplified by Magill v Porter [2002] 2 AC 357 are applied.”

Turning from the position of ministers to that of inspectors:

Turner

Turner v Secretary of State (Court of Appeal, 11 June 2015) was a case where an objector to the proposed redevelopment of the Shell Centre, on London’s south bank, argued that the inquiry inspector had been biased in the way that he had dealt with his case at the inquiry, alleging, as set out in the judgment, that the inspector had curtailed his evidence and submissions and had made adverse procedural rulings.

In determining whether the inspector had acted inappropriately, the Court set out the approach to be followed as follows:

“The notional fair-minded observer would appreciate a number of aspects of the present context: (i) an inspector’s role has a strong inquisitorial dimension, investigating matters in a way which will enable him to report helpfully to the relevant decision-maker, the Secretary of State; with that end in view, it is fair and appropriate for an inspector to seek to focus debate at an inquiry by making interventions to ensure that he is provided with material to assist him in his task; (ii) an inspector has to manage efficiently the conduct of an inquiry within a limited time-frame and involving a range of parties wishing to give evidence, make submissions and participate in cross-examination of witnesses; this may require robust case management in the interests of all participants; (iii) an inspector is entitled to expect, and may legitimately seek to encourage, focused questioning and short and focused answers in the course of cross-examination of witnesses; (iv) the inquiry process provides an inspector with relevant information through a range of media, including written opening statements, examination of plans and the making of detailed closing submissions, as well as through the evidence of witnesses (both by witness statement and orally in cross-examination), and an inspector is expected to have done a good deal of preparation before an inquiry commences and is entitled to seek to focus debate on particular issues in the form which is most likely to provide clarity about what is at stake and assistance for him in writing a report; and (v) as part of his inquiry-management function, and to encourage a focus on what is most likely to assist him in his reporting task, an inspector is entitled to give indications in the course of an inquiry of points which appear to him to be unrealistic or bad and to require concentration on what appear to him to be the real substantive points of contention or where continued debate will be most helpful to him. It is of course possible that an inspector may go too far in robust inquiry management or in closing down debate, so as to give an appearance of bias. But given the expectation that an inspector should be actively managing the inquiry process to ensure that it is efficient, effective and fair to all interested parties, it will be a rare case, as Woolf J observed, in which it is likely that robust inquiry management will be found to have done so.

Another part of the context is the guidance issued by the Planning Inspectorate in the form of “The Inspector’s Code of Conduct”. This sets out principles of conduct for inspectors. Amongst other things, they “should make their decisions and recommendations fairly and in the public interest”; “should not be fettered with pre-determined views and should not judge cases before they have considered the evidence”; “should not be influenced by irrelevant considerations or outside influences when making their decisions and recommendations”; “should avoid unnecessary delay in reaching their decisions and recommendations”; and “should treat each person with dignity and respect”, behaving “at all times with courtesy, patience and understanding, whilst at the same time ensuring that cases are conducted efficiently and effectively.” This guidance is designed to promote best practice. It does not in itself create the standard by which an appearance of bias is to be judged. For example, a lapse in courtesy or patience on the part of an inspector in the course of an inquiry will not in itself give an appearance of bias in the requisite sense. A good deal more than that would be required: cf HCA International Ltd v The Competition and Markets Authority [2015] EWCA Civ 492, in which even a serious element of actual unfairness of treatment of the appellant by the relevant public authority, which misled the appellant at one stage about an aspect of its inquiry, was found not to create an appearance of bias or pre-determination such as to prevent the same personnel in that authority from making a re-determination of matters in contention. (So that we are not misunderstood, and in fairness to the Inspector in the present case, we should add that on the limited evidence which is available we are not persuaded that he behaved discourteously to Mr Turner or anyone else at the inquiry).”

The court dismissed the appeal: “None of the matters relied on by Mr Turner, whether taken individually or together, indicate that there was a real possibility that the Inspector was biased. The Inspector acted properly and without giving any appearance of bias according to the relevant test in Porter v Magill.”

Satnam

Turner was applied in Satnam Millennium Limited v Secretary of State (Sir Duncan Ouseley, 8 October 2019). Satnam challenged the decision by the Secretary of State, on the recommendation of his inspector, to dismiss an appeal in relation a large development proposal in Warrington. Whilst the judge upheld the challenge on other grounds, he rejected a submission that the inspector had showed apparent bias in the way that he conducted the inquiry, as well as the site visit. Again the judgment is a good read as to the facts, particularly paragraphs 112 to 189. Extracts from the PINS manual for inspectors are at paragraphs 190 to 194 and the general legal principles are set out at paragraphs 195 to 206. The judge’s detailed conclusions, in which he rejects the various complaints, are at paragraphs 229 to 254. There are some interesting pointers as to the conduct of hearings and inquiries and as a cheerful point to end on…

Humour is not forbidden:

“The grumbling from Mr Griffiths about a resident giving her evidence in song, followed by the quick interchange over giving evidence in dance and northern humour, rather illustrated my concern about where he was pitching his concern. This was but a moment of light heartedness, essentially initiated by the witness, and briefly responded to by the Inspector. Some Inspectors might have kept silent; but there is nothing in this at all. Not all judges or counsel are humourless automatons either. Although it would avoid some problems if Inspectors were, it could create others at an Inquiry with feelings running high and large numbers of the public attending. This was all very much part of a legitimate judgment about how to run a difficult Inquiry in those venues, with the facilities, and participants there were.”

“I accept that there would have been an impression of familiarity with individuals to whom [the inspector] had spoken on a daily basis, but that does not contrast with how he spoke to the other participants; they were not ignored, their greetings, if any, dismissed. “Banter” is very much in the eye and ear of the beholder. I am not prepared to regard any of it as indicative of possible bias.”

Reading these various cases again, and thinking again about Westferry Printworks, doesn’t so much of this come down to common sense and the facts of each situation rather than the application of any difficult legal concepts? The courts may be surprisingly reluctant at times to intervene (which makes so telling the Serafin ruling, as well as the decision of the government legal department not even to seek to contest Westferry) but decision makers should know what’s not right and, equally importantly, what doesn’t look right.

Simon Ricketts, 6 June 2020

Personal views, et cetera

Revisiting Burkett: Should The JR Pre-Action Protocol Be Updated?

I have a simple suggestion this week, sparked by thinking about two judicial review cases, almost 20 years apart, both involving challenges to the adequacy of environmental impact assessment processes in relation to particular schemes. In both of them the indefatigable claimant environmental lawyer Richard Buxton was on the winning side. (If anyone asks why developers nowadays routinely spend significant amounts of time and money having their lawyers review draft application and EIA documents, the answer is mostly Richard).

But my suggestion isn’t about EIA, but is about when a potential claimant should notify a defendant authority that it is considered that grounds for a potential challenge have arisen. At the moment, there is no requirement to do that, by way of a letter written in accordance with the Administrative Court’s pre-action protocol, followed by the issue of proceedings, until it is all too late and permission has been issued. This of course is part of what makes judicial review such a powerful tool for objectors to development proposals – the ability to ambush by tripping the council up on a legal point when it’s too late for them to do anything about it. I intend no specific criticism of Richard (in that it’s not a feature at all of either of the cases mentioned in this post) but often only then does the claimant’s lawyer leap out of the bushes with a multi-page “aha and gotcha” letter.

The law was in a hopeless mess 20 years ago. No-one knew whether a claimant was safe to wait to challenge the relevant planning permission once it had been issued, or whether the challenge should be to any earlier decision in the process, for instance the authority’s resolution to approve the application.

The case which put that question to bed was R (Burkett) v London Borough of Hammersmith and Fulham (House of Lords, 23 May 2002).

It involved St George’s Imperial Wharf development in Fulham, “a mixed use development comprising 1,803 residential units (1303 private flats and 500 affordable dwellings in the form of flats and houses), an hotel, class A1 retail, class A3 restaurant, class D community uses, health and fitness club, class B1 offices, public open space and riverside walk, together with associated car parking, landscaping and access road.”

Richard acted for Mrs Burkett, who lived in a ground floor maisonette next to the site. The council resolved to approve the application on 15 September 1999 but before then he had written to the council alleging that the environmental impact assessment being relied upon was deficient. After the resolution he continued to complain but did not issue judicial review proceedings until 6 April 2000. The planning permission was not issued until 12 May 2000.

Why the delay? Well, those were the days. Legal aid for planning-related judicial review proceedings was still available and, having started his work on a pro bono basis, Richard had to wait until the Legal Services Commission had confirmed that legal aid would be granted to Mrs Burkett, on a nil contribution basis (which also gave protection against any adverse costs orders – in the days before any Aarhus protective costs order regime).

The council submitted that the claim was out of time and Richards J at first instance and then the Court of Appeal agreed. Shades of the Dill case I mentioned last week in that it was only the House of Lords that reached the contrary view.

Lord Slynn:

In my opinion, for the reasons given by Lord Steyn, where there is a challenge to the grant itself, time runs from the date of the grant and not from the date of the resolution. It seems to me clear that because someone fails to challenge in time a resolution conditionally authorising the grant of planning permission, that failure does not prevent a challenge to the grant itself if brought in time, i e from the date when the planning permission is granted. I realise that this may cause some difficulties in practice, both for local authorities and for developers, but for the grant not to be capable of challenge, because the resolution has not been challenged in time, seems to me wrongly to restrict the right of the citizen to protect his interests. The relevant legislative provisions do not compel such a result nor do principles of administrative law prevent a challenge to the grant even if the grounds relied on are broadly the same as those which if brought in time would have been relied on to challenge the resolution.”

Lord Steyn’s reasoning:

“45. First, the context is a rule of court which by operation of a time limit may deprive a citizen of the right to challenge an undoubted abuse of power. And such a challenge may involve not only individual rights but also community interests, as in environmental cases. This is a contextual matter relevant to the interpretation of the rule of court. It weighs in favour of a clear and straightforward interpretation which will yield a readily ascertainable starting date. Entrusting judges with a broad discretionary task of retrospectively assessing when the complaint could first reasonably have been made (as a prelude to deciding whether the application is time barred) is antithetical to the context of a time limit barring judicial review.

46. Secondly, legal policy favours simplicity and certainty rather than complexity and uncertainty. In the interpretation of legislation this factor is a commonplace consideration. In choosing between competing constructions a court may presume, in the absence of contrary indications, that the legislature intended to legislate for a certain and predictable regime. Much will depend on the context. In procedural legislation, primary or subordinate, it must be a primary factor in the interpretative process, notably where the application of the procedural regime may result in the loss of fundamental rights to challenge an unlawful exercise of power. The citizen must know where he stands. And so must the local authority and the developer. For my part this approach is so firmly anchored in domestic law that it is unnecessary, in this case, to seek to reinforce it by reference to the European principle of legal certainty

50. Thirdly, the preparation of a judicial review application, particularly in a town planning matter, is a burdensome task. There is a duty of full and frank disclosure on the applicant: 053/14/57 to RSC Ord 53, r 14. The applicant must present to the court a detailed statement of his grounds, his evidence, his supporting documents in a paginated and indexed bundle, a list of essential reading with relevant passages sidelined, and his legislative sources in a paginated indexed bundle. This is a heavy burden on individuals and, where legal aid is sought, the Legal Services Commission. The Civil Procedure Rules and Practice Direction – Judicial Review Supplementing Part 54 contain similar provisions: see also the Pre-Action Protocol for Judicial Review. An applicant is at risk of having to pay substantial costs which may, for example, result in the loss of his home. These considerations reinforce the view that it is unreasonable to require an applicant to apply for judicial review when the resolution may never take effect. They further reinforce the view that it is unfair to subject a judicial review applicant to the uncertainty of a retrospective decision by a judge as to the date of the triggering of the time limit under the rules of court.

51. For all these reasons I am satisfied that the words “from the date when the grounds for the application first arose” refer to the date when the planning permission was granted. In the case before the House time did not run therefore from the resolution of 15 September 1999 but only from the grant of planning permission on 12 May 2000. It follows that in my view the decisions of Richards J and the Court of Appeal were not correct.”

This remains the legal position. The current time limit provision in the Civil Procedure Rules is as follows:

“Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose, holding that time runs from the actual grant of planning permission not the resolution to grant“ (CPR 54.5 (5))

Note the reference to “the actual grant of planning permission”. What if the prospective challenge is not to the grant of permission but to another specific procedural step, such as the issue by the Secretary of State of an EIA screening direction, confirming that EIA is not required?

It seems to be accepted that it is not safe to store up challenges to such decisions until permission is issued (although query the precise legal distinction with a committee resolution – might it be that screening is a specific step expressly provided for in legislation?). The question didn’t need to be raised in Richard’s latest success (pending any appeal, at least), in Swire v Secretary of State (Lang J, 22 May 2020), where he acted for an objector to another residential development. Here the dispute was as to whether EIA was required. The council disagreed and issued a negative screening opinion. He applied to the Secretary of State for a screening direction and this was also negative. He then challenged the Secretary of State’s decision to issue that direction.

(Whilst it is nothing to do with the theme of this post, Lang J’s reasons for allowing the challenge are interesting and need to be borne in mind when screening processes are undertaken:

“There was a lack of any expert evidence and risk assessment on the nature of any BSE-related contamination at the Site, and any hazards it might present to human health. The measures which might be required to remediate any such contamination and hazards had not been identified. This was a difficult and novel problem for all parties to address. It was acknowledged by the Council in its screening opinion, acting on the advice of the Environmental Health Practitioner, that specialist advice would be needed to consider the remediation of prions associated with CJD/BSE. Therefore condition 21 merely referred to the requirement that a written method statement for the remediation of land and/or groundwater would have to be agreed by the Council without any party knowing what the remediation for BSE-related infection might comprise. The Defendant adopted the Council’s approach in his screening opinion. But because of the lack of expert evidence, the Defendant was simply not in a position to make an “informed judgment” (per Dyson LJ in Jones, at [39]) as to whether, or to what extent, any proposed remedial measures could or would remediate any BSE-related contamination. It follows that when the Defendant concluded that “he was satisfied that the proposed measures would satisfactorily safeguard and address potential problems of contamination” and that “the proposed measures would safeguard the health of prospective residents of the development”, he was making an assumption that any measures proposed under condition 21 would be successful, without sufficient information to support that assumption. As Pill LJ said in Gillespie, at [41], “the test applied was not the correct one. The error was in the assumption that the investigations and works contemplated in condition VI could be treated, at the time of the screening decision, as having had a successful outcome”. Whilst “not all uncertainties have to be resolved” (per Dyson LJ in Jones at [39]), on the facts this case was not one “where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence” (per Pill LJ at [34]). As the Site was proposed for residential housing, a higher standard of remediation would be required than if it were intended to adapt it for an industrial use, or merely to decontaminate it and return it to woodland (some sites will never be suitable for residential housing, because of industrial contamination).

Mr Honey relied upon the advice given to the Defendant by the Environment Agency, which advised that conditions requiring risk assessment and remediation proposals would be sufficient to mitigate against potential adverse impact on the groundwater. The Environment Agency previously advised the Council that without conditions “the proposed development poses an unacceptable risk to the environment”. I do not consider that the advice from the Environment Agency justified the approach adopted by the Defendant. It confirmed the view of the Environmental Health Practitioner and the Council that further investigation and assessment was needed. It did not provide the Defendant with any evidence that there was no risk of adverse environmental impacts, nor that mitigating measures had as yet been identified which would satisfactorily overcome any such risk. Moreover, it advised that its remit was limited to the protection of the soil and groundwater, and the impact on human health – crucial to this case – was a matter for the Environmental Health Officer. It was not the Environment Agency’s responsibility to advise the Defendant on the legal requirements for undertaking a screening opinion, in the light of Gillespie and the other authorities, and on my reading of the email, it did not purport to do so.

Finally, I have some concerns about the final paragraph of Mr Carpenter’s email to his manager, dated 6 August 2019, whilst reminding myself that this was not part of the formal decision. He said:


“I acknowledge that this case is quite finely balanced. …I am, however, not convinced by what would be achieved by issuing a positive Screening Direction as all the issues have been thoroughly investigated in detailed studies/assessments submitted as part of the planning application process, other than giving the objectors “another bite of the cherry”.”

Plainly he was mistaken in believing that the issue of BSE contamination had been thoroughly investigated in the reports submitted with the planning application, as they were all completed before the developer became aware that BSE-infected carcasses had previously been disposed of at the Site. If this view informed his decision-making, it was a significant error.

Further, on my reading, he appears to suggest that, in a case where the question whether the proposed development was likely to have significant effects on the environment was “finely balanced”, an EIA would be an unnecessary extra step if the issues were “thoroughly investigated” outside the EIA procedure. However, in Champion Lord Carnwath warned against using analogous procedures instead of EIA as to do so “would subvert the purposes of the EIA Directive for that to be conducted outside the procedural framework (including the environment statement and consultation) set up by the Regulations” (at [45]). In this case, the general public does not have the right to be consulted on the developer’s reserved matters applications under conditions 21 and 22, and so the EIA procedure would provide the only opportunity for local people to be consulted on proposed measures relating to BSE contamination at this Site, as they were not set out in the reports submitted with the planning application. So, contrary to Mr Carpenter’s belief, an EIA procedure would not provide objectors with “another bite of the cherry”.

It is not entirely clear what Mr Carpenter meant by the case being quite “finely balanced” as he did not set out the factors which he found to be in favour of an EIA, but it is important to bear in mind that Lord Carnwath also advised in Champion that “[a]pplication of the precautionary principle, which underlies the EIA Directive, implies that cases of material doubt should generally be resolved in favour of EIA.” (at [51]).

In conclusion, I consider that the Defendant made the same error as in the Gillespie case, and thus his decision that EIA was not required was vitiated by a legal error.”)

Back to my main theme: when should a potential claimant notify a defendant authority that it is considered that grounds for a potential challenge have arisen? This wasn’t the issue in Burkett. Everyone was well aware of the potential claim, it was just a question as to when the proceedings should have been issued. What if Richard had kept quiet until the permission had been issued before raising any legal concerns? What would their lordships have made of that?

At present, that sort of behaviour is not the best way to impress a judge but we see it too often – where a prospective claimant identifies proposed grounds of challenge in a pre-action protocol letter only when the planning permission is finally issued and it is too late for the relevant authority and applicant to rectify the alleged defect, even if the grounds arose from a committee resolution many months previously and could have been dealt with by, for instance, a return to committee if only the point had been raised before the permission was issued and it was too late.

The Administrative Court’s pre-action protocol for judicial review, a “code of good practice” which “contains the steps which parties should generally follow before making a claim for judicial review”, says nothing expressly to discourage that approach, in that it is all at a general level that does not engage with the specific peculiarities of planning processes, where on a major scheme there can be significant delays between a resolution to grant and issue of the permission, due to subsequent negotiations in relation to the section 106 agreement and the possible need to refer the application to the Secretary of State and/or the Mayor of London:

“The aims of the protocol are to enable parties to prospective claims to—

(a) understand and properly identify the issues in dispute in the proposed claim and share information and relevant documents;

(b) make informed decisions as to whether and how to proceed;

(c) try to settle the dispute without proceedings or reduce the issues in dispute;

(d) avoid unnecessary expense and keep down the costs of resolving the dispute; and

(e) support the efficient management of proceedings where litigation cannot be avoided.”

“Where the use of the protocol is appropriate, the court will normally expect all parties to have complied with it in good time before proceedings are issued and will take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs”

My simple suggestion is for the pre-action protocol to be amended so as to advise prospective claimants that they should never “store up” prospective grounds of challenge until the planning permission is issued but make them known to the prospective defendant authority and potential interested parties without unreasonable delay and with the objective of giving the parties to address the grounds (if necessary by corrective administrative steps) before the planning permission is issued and before the authority is thereby functus officio ie before it is too late to undo the administrative step of issuing the permission.

And, if I may have a follow up suggestion, would it be so very difficult for there to be a publicly accessible website which identifies all judicial review proceedings which have been filed (even if the underlying papers are not immediately accessible)? Many agreements in relation to land transactions are conditional upon a planning permission being free from legal challenge. Each day matters in the context of the transaction and given the vagaries of document service, particularly in relation to interested parties, and the risks of relying on checking calls made to the court when large amounts of money are at stake for the client, surely there is a better way?

Simon Ricketts, 30 May 2020

Personal views, et cetera

Court Challenges Undo Previous Blog Posts: Westferry, Dill

No-one embarks lightly on litigation but there have been two striking examples this week of what it can achieve. Sometimes it doesn’t even need a hearing (first example) and sometimes it’s on the final roll of the dice (second example).

Westferry Printworks

The Secretary of State’s decision to grant planning permission, against his inspector’s recommendations, for a large development on Docklands – with the decision issued a day before the developer’s CIL liability would have increased by up to £50m – was an eye opener. I covered it, and Tower Hamlets’ reaction, in my 18 January 2020 blog post Westferry Printworks Decision: LPA Reaction Unprintable.

The Council followed through with its threat of a legal challenge to the decision, as did the Mayor of London.

It was frankly surprising to hear this week that the Secretary of State has consented to judgment. I do not think that the consent order itself, which would set out the reasoning agreed by the parties and sealed by the court, is yet in the public domain but there are these two press statements from those involved:

Westferry Printworks: Secretary of State Accepts “Apparent Bias” in His Decision and Consents to Judgment (Francis Taylor Building press statement, 21 May 2020) (FTB’s Melissa Murphy acted for the Mayor).

Council forces government to concede illegality in making decision on controversial Westferry Printworks scheme (London Borough of Tower Hamlets press statement, 22 May 2020) (Sasha White QC and Gwion Lewis have been acting for Tower Hamlets).

To quote from the FTB statement:

“The consent order reflects the fact that in pre-action correspondence, the Secretary of State explained that the decision letter was issued on 14 January 2020, rather than the following day, so that it would be issued before Tower Hamlets adopted its new local plan and CIL charging schedule. He accepted that the timing of the decision letter, thereby avoiding a substantial financial liability which would otherwise fall on the developer, would lead the fair minded and informed observer to conclude that there was a real possibility that he was biased in favour of the developer. He accepted that the decision letter was unlawful by reason of apparent bias and should be quashed. The Mayor/GLA’s challenge was therefore academic, but he agreed to pay their costs. “

Those of us not close to what happened can only speculate but why would the Secretary of State cave in rather than face a hearing? Was he worried as to what might be made public in a trawling over of internal correspondence and notes? Echoes of the Mayor’s recent consenting to judgment in the Kensington Forum case (see my 14 March 2020 blog post, London, Friday the 13th).

The appeal will now need to be redetermined and, which is an expensive consequence for the developer of these events, even if the appeal is allowed second time around, the higher CIL figure will be payable.

Dill

I recounted this saga, about a lost pair of urns which were the subject of a listed building enforcement notice, at the time of the Court of Appeal ruling (see my 1 December 2018 blog post Is It A Listed Building? No Statuary Right Of Appeal). I still like the title to the post but the rest of it is now out of date – the effect of the Supreme Court’s ruling in Dill v Secretary of State (Supreme Court, 20 May 2020) was basically to remove the word “no” from my blog post: in defending a listed building enforcement appeal it is now possible to raise the argument that the listed building is not in fact a building (and the court gives some guidance as to what constitutes a “building” for these purposes). See also this excellent summary: Supreme Court rules on the meaning of listed building (39 Essex Chambers, 20 May 2020 – Richard Harwood QC appeared for Mr Dill, instructed by Simon Stanion at Shakespeare Martineau).

Aside from the substantive legal points, which are important, the interesting thing about the case for me is that persistence paid off. The inspector found against him, Singh J at first instance found against him, the Court of Appeal found against him but Mr Dill and his legal team did not give up. The costs of losing would no doubt have been as significant for Mr Dill as the CIL consequences for Tower Hamlets in Westferry.

And whilst the outcome of the case did not remove the spectre for Mr Dill of continued battles – the listed building enforcement notice appeal would now need to redetermined – Lord Carnwath concluded his final judgment before retiring from the Supreme Court with these words:

I understand that this will be deeply frustrating for Mr Dill. There is as I understand it no suggestion that he acted other than in good faith in disposing of items which he believed to be his own disposable property, and had been so treated by his family for several decades. Since this problem was first drawn to his attention by the local authority in April 2015 he has been attempting to obtain a clear ruling on that issue. On the view I have taken, that opportunity has been wrongly denied to him for five years. Even if his appeal were ultimately to fail, the practicability of restoring the vases to their previous location in the grounds of Idlicote House is uncertain. Accordingly, this court’s formal order for remittal should not prevent the respondents from giving serious consideration to whether in all the circumstances it is fair to Mr Dill or expedient in the public interest to pursue this particular enforcement process any further.”

Concluding thoughts

Well done to the successful claimants and legal teams in both cases. But “snakes and ladders” and “final roll of the dice” analogies are not far off the mark, are they? How to arrive at a system that is more simple and not dependent on expensive, uncertain litigation? Perhaps by reducing the politics (removing the ability for the Secretary of State to recover appeals?), certainly by trying to make sure that legal principles are simpler (if you do the maths, in Dill one inspector and four judges were overruled by five judges, over those narrow “legal exam” questions, following submissions prepared by five barristers and their associated legal teams – the whole process ultimately to be paid for by us, the tax payer, save for those costs which Mr Dill cannot recover).

Simon Ricketts, 23 May 2020

Personal views, et cetera

Stay Alert! A Quick Guide To All Those MHCLG Announcements

On 13 May 2020, MHCLG published:

Guidance: coronavirus planning update

Guidance: Coronavirus compulsory purchase

Guidance: Coronavirus community infrastructure levy

Guidance: construction site working hours Q&A

Guidance: consultation and pre-decision matters

Guidance: plan-making

Guidance: neighbourhood planning

On the same day, the Planning Inspectorate updated its guidance on site visits, hearings, inquiries and events.

On 14 May 2020, the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 were made and came into force that day. The Regulations were accompanied by an Explanatory Memorandum.

The highlights

Validation and determination of applications for planning permission

No changes have been made to the timescales for determining planning applications. Developers are however encouraged to agree extensions of the period for determination. Local authorities have been urged to give priority to validating urgent COVID-19 related applications for planning permission and associated consents.

Publicising applications for planning permission

Temporary regulations (expiring on 31 December 2020) were made and came into force on 14 May to supplement existing publicity arrangements for planning applications, listed building consent applications and environmental statements for EIA development. There is now flexibility to take other reasonable steps to publicise applications and environmental statements if the usual specific requirements cannot be discharged relating to site notices, neighbour notifications, newspaper publicity or availability of hard copy documents. Steps can include the use of social media and electronic communications and they must be “proportionate to the scale and nature of the development”. Guidance has also been issued on this topic.

Planning Conditions

MHCLG has made it clear that planning conditions should not be a barrier to allowing developers and site operators flexibility around construction site working hours to facilitate safe working. Where only short term or modest increases in working hours are required, LPAs are encouraged to use their discretion to not enforce against a breach of working hours conditions. Where longer term measures or other significant changes are required, applications to amend conditions should be made, which LPAs should prioritise and turn around in 10 days. Requests to work up to 9 pm Monday to Saturday should not be refused without very compelling reasons.

Community infrastructure levy

The existing CIL regulations of course allow charging authorities limited flexibility to defer CIL liability. Amendments will be made to the regulations “in due course” to increase flexibility, but that will still depend upon charging authorities deciding to exercise the new discretion available to them. Authorities will be able to defer payments, temporarily disapply late payment interest and provide a discretion to return interest already charged. However, these changes will only apply to small and medium-sized developers with an annual turnover of less than £45 million. It remains to be seen how this limitation will be addressed in the regulations, for example where a special purpose vehicle, potentially offshore, has assumed liability. The new instalment policies for deferred payments will only apply to chargeable development starting after the changes come into effect, but they are anticipated to apply to “phases“ of the development starting after that date. The announcement on 13 May added that “existing flexibilities and the government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate, they will not be charged extra for matters that were outside of their control.”

Section 106 planning obligations

Local planning authorities are encouraged to consider the deferral of section 106 obligations, e.g. financial payments. This will require variations to existing section agreements and undertakings. Local planning authorities are encouraged generally to take a “pragmatic and proportionate” approach to the enforcement of section 106 planning obligations

Virtual Committees

These are already enabled, by way of Regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020. MHCLG is working with the Planning Advisory Service (PAS) to provide further practical advice on the way these meetings are managed.

Planning Appeals

PINS issued a further update on 13 May. Site visits are being commenced and PINS is considering whether there are types of cases that can proceed without a site visit. The first digital appeal hearing took place on 11 May as a pilot and PINS is aiming for 20 further examinations, hearings and inquiries in May and June. It is also exploring hybrid options – a mix of in person and by video public/telephone hearings and is considering “social distance” events.

Local Plans

MHCLG is working on ways to address the local plans process in order to meet aspirations to have all local plans in place by 2023. In particular, the use of virtual hearings and written submissions is being considered.

Neighbourhood Plans

Regulation 12 of the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 prevents any neighbourhood planning referendum from taking place until 6 May 2021. Updated guidance was issued in April allowing neighbourhood plans awaiting referendums to be given significant weight in decision making.

Nationally Significant Infrastructure Projects

The government is working with consenting departments to support the continuation of decision-making to minimise the impact of current restrictions on the consideration of DCO applications and the Planning Inspectorate has updated its guidance.

Compulsory purchase orders

There is now pragmatic advice as to the service of documents. Acquiring authorities are encouraged to allow more time for responses to requests for information about interests in land or submitting objections to CPO. There is also encouragement to authorities to act responsibly regarding business and residential claimants, particularly regarding the timing of vesting orders and payment of compensation, which is particularly relevant when considering evictions. Authorities are reminded of their obligation to make advance payments of compensation in accordance with statutory time limits given cash flow difficulties which claimants may currently face.

Concluding remarks

To my mind, this is all welcome and congratulations are due in particular to the relevant civil servants. Of course, there is more to be resolved, for instance the vexed question of extending time limited planning permissions (see my 4 April 2020 blog post Pause Not Delete: Extending Planning Permissions) as well as the Regulations in relation to CIL, but it is good to see this progress. No wonder MHCLG’s Simon Gallagher was prepared to come on this week’s Have We Got Planning News For You!

Whether by serendipity or, now I think about it, of course, good planning, the RTPI published on 15 May 2020 its research paper Pragmatic and prepared for the Recovery: The planning profession’s rapid response to Covid-19. This last week has been a good start.

Simon Ricketts, 16 May 2020

Personal views, et cetera

(Thank you to Town’s Michael Gallimore and Lida Nguyen for allowing me to draw from a client note prepared earlier this week).

Zen & The Art Of Very Special Circumstances

“The past exists only in our memories, the future only in our plans. The present is our only reality. The tree that you are aware of intellectually, because of that small time lag, is always in the past and therefore is always unreal. Any intellectually conceived object is always in the past and therefore unreal. Reality is always the moment of vision before the intellectualization takes place. There is no other reality.”

Zen and the Art of Motorcycle Maintenance by Robert M Pirsig is a powerful but infuriating book, part fictionalised roadtrip autobiography, part philosophical discourse. Back when I was prepared to read something I didn’t really understand without first having an engagement letter in place, I absolutely loved it.

The book has become an unlikely cultural icon.

As has the green belt, which might have been treated in the book something like this:

What is the green belt and why do people write it as “the Green Belt”? He explained that the green belt is not singular but plural; it was originally described as a girdle rather than a belt, and is better described as a series of urban containment zones. Much of the land within the green belt is not green; much greenfield land (which can include land which is brown but not brownfield) is not within the green belt, and beyond the green belt was originally white land, which was of course never white. To pronounce land to be green belt is so powerful that many people sense that to refer to it as green belt rather than Green Belt is somehow inadequate or disrespectful, notwithstanding usual grammatical rules (a phenomenon which we also experience with references to Inspectors and Inquiries, and, oddly, Counsel).

How do I find the green belt? He sighed. One cannot find it by looking. Its defining features are present by their absence. Instead its existence can only be determined by opening up the relevant development plan, or rather, because the plan is not a plan, the policies map which is not part of the plan (and indeed the green belt around York is defined by an abolished plan which has no map with defined boundaries). Its quality of openness indeed has been determined by the Supreme Court [proper noun] as a quality which can not necessarily be seen.

He sighed again. Green belt was the yin and new towns were to be the yang.

A local planning authority may only make changes to a green belt boundary if there are “exceptional circumstances” and may only grant planning permission for inappropriate development in the green belt if there are “very special circumstances”. The qualifying adjectives are uncalibrated, so the courts have had to make the best of it (my 27 January 2018 blog post Expletive Deleted: Revising Policy was all about these sorts of linguistic problems). We have of course the Calverton ruling on “exceptional circumstances” and Dove J’s more recent ruling in the Guildford local plan case (covered in episode 6 of Heather Sargent’s planning law video podcast series Planning Law Tea Break and in Zack Simons’ #planoraks blog post Guildford’s Local Plan and “exceptional circumstances” (29 March 2020)).

As Dove J made clear in the Guildford case,

“Exceptional circumstances” is a less demanding test than the development control test for permitting inappropriate development in the Green Belt, which requires “very special circumstances.”

He can only derive this from the policy context though, not the words. Is something exceptional less rare or valuable than something which is very special? My policy test calibrator, part-constructed in the garage, would have a dial to 10. Overcoming a normal presumption is anything over 5. Exceptional is, what, about 7, maybe 8, depending on circumstances? Where do you place very special? 8.5 or 9? Of course this is largely nonsense but people trot out the tests, and understandably ask, as if there is an actual answer.

More basically why don’t we have a formulation such as “wholly exceptional circumstances” rather than “very special circumstances”? After all, we do when it comes to heritage (see the contrast between NPPF paras 194(a) and (b)). Well only because the original 1955 ministerial Circular used the term “very special circumstances”:

“Inside a green belt, approval should not be given, except in very special circumstances, for the construction of new buildings or for the change of use of existing buildings for purposes other than agriculture, sport, cemeteries, institutions standing in extensive grounds, or other uses appropriate to a rural area”.

Slightly embellished (particularly in relation to limited infilling and the redevelopment of previously developed land), this language is still recognisable in NPPF para 145.

There is a second level of uncertainty with the use of these tests: not only is the linguistic calibration imprecise, but it is for the decision maker to determine, with adequate reasoning (which may be very basic and not really susceptible to challenge), whether the circumstances are sufficiently “exceptional” or “special”.

Of course the reality is that the fuzziness is deliberate. It allows decision makers, whether the Government or local planning authorities, some necessary wriggle room.

Some recent decisions on “very special circumstances”:

North of Boroughbridge Road, York – inspector’s decision letter 23 October 2019

In finding “very special circumstances” the inspector appears to have relied upon the fact that the site did not fulfil any of the green belt “purposes”, was identified for release for housing in the emerging local plan and that the site would deliver 266 market and affordable homes. The housing land supply in York is well under 5 years (although of course the tilted balance does not apply in relation to green belt proposals).

Since former planning minister Brandon Lewis’s 17 January 2014 ministerial statement we have been wary about relying solely on housing need:

“I also noted the Secretary of State’s policy position that unmet need, […] for conventional housing, is unlikely to outweigh harm to the green belt and other harm to constitute the “very special circumstances” justifying inappropriate development in the green belt.”

The statement has not formally been revoked, so, back to that deliberate fuzziness, here “unlikely” is still the get out word in that it allows for exceptions (where is “unlikely” on the policy test calibrator?), or identifying something other than solely housing need to throw into the scales to assist the “very special circumstances” argument.

Seashell Trust – Stanley Road, Cheadle Hume, Stockport – Secretary of State’s decision letter 22 April 2020

“The Secretary of State considers the need for the redevelopment of the Special Educational Need school carries substantial weight, the housing benefits overall carry very significant weight, and the provision of employment and community benefits each carry moderate weight.

The Secretary of State considers that the above benefits clearly outweigh the harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances exist to justify this development in the Green Belt.”

Oxford Brookes University – Wheatley Campus, College Close, Wheatley, Oxford – Secretary of State’s decision letter 23 April 2020

“The Secretary of State considers that the significant visual benefit to openness over a wide area of the South Oxfordshire Green Belt [by removal of a tower and other large, unsightly structures on the site] and the delivery of up to 500 houses, 173 of which would be affordable, are both considerations that carry very substantial weight.”

West Midlands Rail Freight Interchange DCO – Secretary of State’s decision letter 4 May 2020

“67. The Secretary of State agrees with the Examining Authority that the strategic benefits of the Proposed Development in contributing to an expanded network of SRFIs would assist in achieving and promoting a modal shift of freight from road to rail, thereby playing an important part in the move to a low carbon economy. These benefits are such that they outweigh the adverse impacts identified in relation to the construction and operation of the Proposed Development (ER 9.3.1).

68. The Secretary of State notes and agrees with the Examining Authority that the national and regional need for the proposed development outweighs any harm. He therefore agrees with the Examining Authority that the very special circumstances needed to justify a grant of development consent have been demonstrated (ER 9.2.4).”

Recommended further media:

⁃ My 30 March 2018 blog post Green Belt Developments (although this was before the Supreme Court overturned the Court of Appeal in the Samuel Smith “openness” case)

Five circumstances ‘exceptional’ enough to justify green belt release in local plans, Stuart Watson, Planning (7 May 2020, £)

⁃ 50 Shades of Planning Podcast – Green Belt. Sacred Cow (22 April 2020)

⁃ (As always) John Grindrod’s book Outskirts. (Now, Mr Pirsig, that’s how you write a part autobiography, part treatise on the history of the green belt, life and everything.)

Simon Ricketts, 9 May 2020

Personal views, et cetera

Great Buddha of Kamakura, Japan.

There Is No E In Inquiry

As the motivational cliche goes, there is no I in team. That’s as maybe. But, where I = Inquiry, nor is there yet any I on Teams (or on Zoom, on Skype, on BlueJeans, or even on Google Hangouts).

The Planning Inspectorate’s 28 April 2020 update Planning Inspectorate casework continues as first pilot digital hearing to take place in May makes interesting reading:

“We are continuing to issue decisions where we can and 1,625 have been issued across all case types since lockdown restrictions started. Not being able to visit sites and hold public events has, however, clearly had an impact on our ability to process cases and the time it is taking to reach a decision.

As explained in our guidance, to limit the spread of the Coronavirus we have postponed site visits up to the middle of May, as well as most hearing and inquiry physical events where these would otherwise have taken place in May. Our case officers have notified parties of event postponement until further notice. We will be issuing updated information on arrangements for postponed events as soon as practicable in line with latest government advice.

We have been able to progress cases where:

• the physical event was concluded prior to lockdown restrictions;

• no physical event is required to make a decision; or

• a physical event is still further in the future and preparatory activity can continue (e.g. via telephone case conferences).

New cases continue to arrive at normal levels and are being registered and processed as far as possible. As at 23 April, there were 9,591 open cases. In the last three weeks we have seen the number of open cases rise by 337.”

(It is encouraging, in passing, to note that appeals are still being made at normal levels – that is our experience too).

The Planning Inspectorate is anxious to reassure that it is moving quickly to catch up:

• “The first fully ‘digital’ hearing is due to take place on 11 May.

• We are preparing for additional cases to be heard by digital hearings/inquiries in May/early June with a view to scaling up digital events further over June/July.

• We are assessing postponed cases to establish whether they can proceed by digital, traditional or a ‘hybrid’ approach, in order to re-arrange these in due course accordingly.

• A trial of ‘virtual site visits’ is underway involving thirteen Inspectors.

• Five local advisory visits have taken place remotely (critical for helping Local Planning Authorities to progress local plans and reduce the length of examinations).”

But is this fast enough? Can more be done? Could we see a leap forward in the way that planning hearings and inquiries are conducted?

After all, the planning inquiry process has been constantly adapting. Planning inquiries were first introduced in the Housing, Town Planning etc Act 1909 to consider objections to town planning schemes. The right to appeal against a planning decision was introduced in the 1932 Act, and the 1947 Act provided that all appeals were to be determined by public inquiry. Weirdly to us now, the procedures followed and the reasoning for decisions was kept secret until changes were made to implement some of the recommendations of the 1957 Franks Committee on Administrative Justice. We still refer to the three Franks Principles, of openness, fairness and impartiality.

This is what was said by the minister of the time in a 1957 Commons debate on the report:

“I must, however, return to a point I made in the opening of my remarks, that we must not complicate the procedures more than we can help. The great majority of objectors and appellants are small people. Quite a few present their own cases without professional assistance and for most people it is essential that the procedure should be simple, intelligible, quick, and cheap, as well as fair.”

Dear reader, of course we did then complicate those procedures, often through changes made with the best of intentions. When I started practice, there was no advance exchange of proofs of evidence. We all read the documents for the first time as they were being read out by the witness. No rebuttal proofs, no laboriously prepared cross-examinations or written closing submissions. Every procedural step that has been introduced, introducing frontloading of appeal preparation and evidence (good), minimising surprises (good), has by a sidewind elongated and complicated the processes (bad). There may now be a much more forensic and detailed examination of the issues, but where have we left those “small people”?

The Planning Bar is obviously at the sharp end of the current slowdown and has been trying to move things along.

⁃ Various Landmark Chambers barristers published a really excellent paper on 21 March 2020, Fairness and public participation in video or telephone hearings for planning appeals during the COVID-19 crisis

⁃ On 1 April 2020 Kings Chambers put out this statement, Kings Chambers team up with Turley and Pegasus Group to record remote public inquiry test.

It is of course hugely frustrating that the massive improvements to the inquiry appeals system brought about by the Rosewell review (see eg my 25 May 2019 blog post Pace Making: Progress At PINS) have been undone by this pandemic. The Rosewell changes, unlike possibly every previous reform of any aspect of the planning system, did not add complications, but modernised and streamlined it in many ways, with telephone case management conferences and the like now the norm. I assume that everyone saw the interview with Bridget Rosewell on last week’s second episode of Have We Got Planning News For You? Her frustration with the Inspectorate’s present apparent slowness to get virtual hearings and inquiries underway was apparent, talking about the need to “move forward as soon as possible” and extolling the “fairer access” that can be achieved in a “virtual environment”.

We should listen to Bridget.

(Indeed, to go off on a tangent, if I were Secretary of State for the day, I would presently quietly shelve “Planning For The Future” and instead ask Bridget, very nicely, to carry out “Rosewell 2”, this time a review, with similar practical focus, in relation to the planning application process, so as to identify opportunities for simplification and reduction of unnecessary paperwork. Step by step there are surely simple opportunities for improvement. Off the top of my head:

– Recommended word limits for supporting documents such as Planning Statements, Design and Access Statements and Environmental Statements (or application fee linked to size of the documentation)

– Removal of need for multiple hard copies of documents

– Modernisation of publicity requirements

– Recommended word limits for officers’ reports to committee

– Standardisation of wording of planning conditions

– Updated model section 106 agreement template (the Law Society’s current so-called template draft agreement dates from 2010!)

– Updated advice as to the types of application which properly should be dealt with by way of officers’ delegated powers

Do it!)

But of course, moving to virtual appeals, even on a temporary basis, is not easy. The interests of all participants, and potential participants, in the appeals process need to be taken into account. Whilst justice delayed is justice denied, justice has to be both done and be seen to be done.

I was struck by an assertion in the Landmark Chambers paper:

It is safe to proceed on the basis of a presumption that every participant in a planning appeal will have reasonable access to a means of participating in a remote hearing session unless they provide evidence to the contrary. Virtually every household has a telephone, and the vast majority of people have access to a computer or mobile device on which video conferencing is possible.”

This isn’t still true for a few members of my own family (well they all have a land line – but certainly couldn’t be expected to follow proceedings on a telephone). And indeed whilst the chattering classes are currently going on about Zoom and the rest of it, I know that many are finding it very difficult to access or be at ease on these platforms, surrounded by us lawyers and others who inevitably spend much of every day now speaking with a variety of people on screen and unwittingly developing new social norms and cues.

Any procedural solution does needs to meet the three principles set out in the paper:

– The common law requirements of fairness;

⁃ Article 6(1) ECHR – the right to a fair trial in civil cases;

⁃ Article 6 of the Aarhus Convention (“public participation in decisions on specific activities”).

But decisions as to procedure also need to have regard to “protected characteristics” under the Equality Act 2010, which of course include age and disability. Bridget is right that virtual hearings and inquiries would allow many to engage with the process who currently cannot, which is great as long as there are protections to make sure that some are not excluded.

In my view this is perfectly achievable for the majority of hearings and inquiries. I accept that (1) the inquiry process is very different from the court process and we cannot simply “read across” and (2) even in relation to the court process, there were some words of warning this week from the Court of Appeal in a family law case, Re A (Children) (Court of Appeal, 30 April 2020) – see paragraphs 49 to 56. However, let’s analyse the real position:

The only parties entitled to appear at a hearing are the appellant, the local planning authority and defined statutory parties. Everyone else is at the discretion of the inspector. As long as the inspector is confident that there is no third party, from whom the inspector feels he or she should hear, and who cannot participate adequately by some remote means, why should not virtual hearings proceed, as long as the proceedings are able to be viewed remotely (perhaps also with a transcript of what is said – not difficult at all – where there is any doubt as to whether there may be interested parties without adequate screen access)?

At inquiries, the parties only entitled to appear are the appellant, local planning authority, defined statutory parties and those who have (at their own request) become rule 6 parties. Again, if all of those parties are in agreement (with possible adverse costs award consequences for those who unreasonably refuse) and as long as the same approach can be taken in relation to other parties, why cannot inquiries proceed?

Site visits are less of a problem, whether accompanied or unaccompanied, and whether in fact still always needed, in the light of visual material now available.

Furthermore, as long as there are indeed adequate protections for those who should be heard at the hearing and genuinely cannot reasonably be expected to participate remotely, the change to a virtual process has the benefit of opening up access to so many other people. And imagine the benefits in future of being able to offer a “virtual” evening session at the next inquiry at your local town hall? That surely would be participative democracy.

Which is a long way of saying: I agree with Bridget.

Simon Ricketts, 2 May 2020

Personal views, et cetera

Housing Schemes Approved By Secretary Of State In April 2020

Five out of five proposals for housing development have been approved by the Secretary of State so far in April 2020, in each instance in accordance with his inspectors’ recommendations.

Chronologically:

1 April – Vauxhall Cross Island, Lambeth

The Secretary of State approved a called in application for “the construction of a mixed-use development comprising two towers of 53 storeys (185m) and 42 storeys (151m), with a connecting podium of 10 storeys (49m), containing office (B1), hotel (C1), residential (C3) and flexible ground floor retail and non-residential institution (A1/A2/A3/A4/D1) uses plus plant, servicing, parking and other ancillary space, the provision of hard and soft landscaping, the creation of a new vehicular access point on Wandsworth Road, a vehicular layby on Parry Street and other works incidental to the development”.

“The proposal would deliver 257 homes onsite, including 23 affordable, alongside a Section 106 payment of £30m for further off-site affordable housing provision. The Secretary of State notes that, citing LB Lambeth’s past record of utilising such payments, the Inspector was satisfied this would deliver a further 54 homes and provide a total of 30% affordable… The Secretary of State notes that a viability assessment demonstrated that this was the maximum amount achievable, and was accepted by LB Lambeth.”

The Secretary of State found that the proposals would be in accordance with the development plan. The market and affordable housing components of the scheme attracted “significant weight in favour. There would also be hotel, office and retail uses in an area identified for all three, alongside a new public square. All of these would contribute to the development plan’s goal of creating a new district centre in Vauxhall. This also attracts substantial weight in favour.

(Town acted for the applicant).

1 April – Station Road, Long Melford, Suffolk

The Secretary of State allowed an appeal by Gladman Developments Limited for “outline planning permission for the erection of up to 150 dwellings with public open space, landscaping and sustainable drainage system (SuDS), and vehicular access point from Station Road, with all matters reserved except means of access”.

The Secretary of State found that the proposals were not in accordance with the development plan. In terms of other material considerations:

“The site is outside the settlement boundary, and would result in the development of a greenfield site into housing, which would cause visual harm. However, the settlement boundary is out of date, and the visual harm would be confined to the site itself, with limited impact on the wider settlement. This carries moderate weight against the proposal.

The proposal would provide up to 150 new homes, including around 53 affordable homes. Although the local authority can now demonstrate a supply of housing land above 5 years, this figure is a baseline and not a ceiling. Relevant to this appeal, the appellant has demonstrated there is a local need in this settlement, in line with the expectations of the development plan, for both market and affordable housing. The Secretary of State recognises that there is now a five-year supply of housing land supply. However, in the light of the identified local need, and the Government’s objective of significantly boosting the supply of homes (Framework paragraph 59), he considers that the housing delivery should carry significant weight. The proposal would provide land for a new early years centre, which attracts significant weight in favour. There would be economic benefits provided by the construction of the homes and from the new residents, which attract moderate weight. Improvements to existing public rights of way, public space and play areas, and biodiversity benefits each attract moderate weight in favour. Improvements to bus stops and footway connections attract limited weight in favour.”

7 April – Barbrook Lane, Tiptree, Colchester

The Secretary of State allowed an appeal by Gladman Developments Limited (again) for “outline planning permission for the development of up to 200 dwellings (including 30% affordable housing), provision of 0.6ha of land safeguarded for school expansion, new car parking facility, introduction of structural planting and landscaping and sustainable drainage system (SuDS), informal public open space, children’s play area, demolition of 97 Barbrook Lane to form vehicular access from Barbrook Lane, with all matters to be reserved except for access”.

The Secretary of State found that the proposals were not in accordance with the development plan. In terms of other material considerations:

“As the local authority are unable to demonstrate a five-year supply of housing land, paragraph 11(d) of the Framework indicates that planning permission should be granted unless: (i) the application of policies in the Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.

The proposal is an undeveloped agricultural site outside the settlement boundary, and the rural character of the site would change. This carries moderate weight against the proposal.

The proposal would provide up to 200 dwellings, with 30% affordable, helping the local planning authority achieve a five-year supply of housing land. This attracts significant weight in favour of the proposal. The proposal includes informal open space and safeguarded land for a school expansion, which carry limited weight. Although the site would change from rural to a housing estate, there would be little wider impact on the setting of the village as the site is well-screened. The scale of the proposal would not harm or prejudice local services, highways or residential amenity, and the site represents a sustainable location for access to jobs and services.

The Secretary of State considers that there are no protective policies which provide a clear reason for refusing the development proposed. The Secretary of State considers that the adverse impacts of the proposal do not significantly and demonstrably outweigh the benefits.”

22 April – Stanley Road, Cheadle Hume, Stockport

The Secretary of State allowed an appeal by the Seashell Trust “for the erection of a new school with associated kitchen and dining facilities, swimming and hydrotherapy facilities, infrastructure, drop-off parking, access, landscaping and ancillary works; the demolition of the Chadderton building, Orchard/Wainwright/Hydrotherapy/Care block, Dockray building, part of existing college, 1 Scout Hut and 1 garage block, and erection of new campus facilities (Use Class D1/D2 – Reception, Family Assessment Units, Family Support Services/Administration/Training/Storage Facility Sports Hall and Pavilion) with associated infrastructure, parking, landscaping and ancillary works; and up to 325 dwellings (Use Class C3) in northern fields with associated infrastructure, parking, access, landscaping and ancillary works”.

The site is in the green belt and the Secretary of State found that the proposals were not in accordance with the development plan. However, these were his overall conclusions:

“As Stockport Borough Council cannot demonstrate a five year housing land supply, paragraph 11(d) of the Framework indicates that planning permission should be granted unless: (i) the application of policies in the Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.

The Secretary of State considers that the harm to the Green Belt carries substantial weight, the ‘less than substantial’ harm to the setting of the listed building carries great weight and harm to the landscape carries moderate weight. The Secretary of State considers the proposal will harm agricultural land, habitat, non-designated heritage assets and demand for mainstream school places and attributes very limited weight to each of these harms.

The Secretary of State considers the need for the redevelopment of the Special Educational Need school carries substantial weight, the housing benefits overall carry very significant weight, and the provision of employment and community benefits each carry moderate weight.

The Secretary of State considers that the above benefits clearly outweigh the harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances exist to justify this development in the Green Belt. In the light of his conclusion on this and the heritage test is paragraph 18 above, the Secretary of State considers that there are no protective policies which provide a clear reason for refusing the development proposed and further considers that the adverse impacts do not significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole. Paragraph 11(d) of the Framework therefore indicates that planning permission should be granted.”

Paul Tucker QC led the case for the appellant and this is a statement on the decision published by Kings Chambers.

23 April – Wheatley Campus, College Close, Wheatley, Oxford

The Secretary of State allowed an appeal by Oxford Brookes University for outline planning permission for “demolition of all existing structures and redevelopment of the site with up to 500 dwellings and associated works including; engineering operations, including site clearance, remediation, remodelling and deposition of inert fill material arising from demolition on site; installation of new and modification of existing services and utilities; construction of foul and surface water drainage systems, including SuDS; creation of noise mitigation bund and fencing; creation of public open space, leisure, sport and recreation facilities including equipped play areas; ecological mitigation works; construction of a building for community/sport use and associated car parking; construction of internal estate roads, private drives and other highways infrastructure and construction of pedestrian footpaths”.

Again this is a green belt site. Whilst the Secretary of State agreed with the inspector that the appeal should be allowed, he differed as to his reasoning. I set out the Secretary of Statement’s application of the planning balance and overall conclusions as follows:

“For the reasons given above, the Secretary of State considers that the appeal scheme is in accordance with the following policies of the development plan: CS Policy CSEN2, LP Policy GB4. He has identified an overall benefit to heritage assets, so has found no conflict with heritage policies CSEN3, CON5 and CON11. He has found no conflict with CS Policy CSEN1 or LP Policies G2, C4 and C9 insofar as they seek to protect the district’s countryside and settlements from adverse development. While he has found conflict with policies CSS1 and CSH1 regarding the amount and spatial distribution of housing, he has found these policies to be out of date. He has therefore concluded that the appeal scheme is in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

At IR13.118, the Inspector, having concluded that the proposed development would not conflict with the development plan, states that it should be approved without delay in accordance with paragraph 11c) of the Framework. The Secretary of State disagrees. Paragraph 11 c) of the Framework refers to “development proposals that accord with an up-to-date development plan”. As the Secretary of State has concluded that the policies which are most important for determining this appeal are out-of-date, he considers that paragraph 11 c) of the Framework does not apply.

Paragraph 11(d) of the Framework indicates that planning permission should be granted unless: (i) the application of policies in the Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.

The Secretary of State considers the harm to the Green Belt on that part of the site where development is considered inappropriate carries substantial weight.

The Secretary of State considers that the significant visual benefit to openness over a wide area of the South Oxfordshire Green Belt and the delivery of up to 500 houses, 173 of which would be affordable, are both considerations that carry very substantial weight.

The Secretary of State considers that the economic benefits of the scheme should be afforded significant weight.

The Secretary of State has considered the development in terms of its impact on heritage assets and on accessibility and considers that both offer benefits that should be afforded significant weight.

The net benefit to biodiversity that would be delivered by the scheme is a consideration of moderate weight, and the reinvestment of the proceeds arising from the sale of the land into the education sector should be afforded significant weight.

Given his findings in this letter, the Secretary of State considers that the proposal meets the emerging Neighbourhood Plan site-specific development principles in respect of Green Belt, affordable housing and accessibility, and public open space.

Having concluded at paragraph 39 of this letter that very special circumstances exist the Secretary of State considers that there are no policies in the Framework that protect areas or assets of particular importance that provide a clear reason for refusing the development proposed. He also concludes that any adverse impacts of granting permission do not significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.”

Chris Young QC led the case for the appellant and this is a statement on the decision published by No 5 Chambers.

Quite a month so far!

Two quick plugs:

⁃ If on Thursday you watched the first Planning In Brief web event hosted by Charlie Banner QC, Chris Young QC, Sasha White QC, Paul Tucker QC and Town’s Mary Cook you would have heard some discussion about the Seashell Trust decision. I wouldn’t be surprised to hear some coverage of the Oxford Brookes decision this coming week. Another reason to make the charity donation and tune in.

⁃ Do subscribe to Town Legal’s weekly, comprehensive, inquiry appeal decisions updates. Subscriptions to this and our other update services are still free.

Simon Ricketts, 25 April 2020

Personal views, et cetera

Handy lockdown calendar
(H/t @instachaaz)

Key Worker Affordable Housing

The Clap for Our Carers phenomenon reflects heartfelt gratitude for what is currently being done, for all of us, by NHS staff, carers and others carrying out essential services. But clapping is glib. Many of us no doubt feel uneasy. After all many or most of those to whom we owe so much:

⁃ are in jobs in the public sector, or are employed by companies contracted to the public sector, and have seen particular and significant pressure on their incomes for many years;

⁃ are doing those jobs in the absence of adequate facilities and equipment, due to longstanding restrictions on public spending, lack of investment at necessary levels and/or a lack of organisational foresight;

⁃ are not UK nationals and have had to suffer an increasingly hostile environment, catalysed by Brexit;

⁃ due to the loss over time of traditional indentured accommodation and massive house price inflation, particularly in London, have found themselves unable to live in decent accommodation convenient to their work, despite often needing to work at unsocial times or being “on call”.

Plainly there will be a reckoning on many fronts when this immediate crisis is over but will one consequence be a fresh focus on the role of key worker affordable housing?

The NPPF affordable housing definition includes housing for “essential local workers” but, whilst many individual local authorities and registered providers may still prioritise some applications from local key workers, variously defined, there has been no central Government encouragement, let alone funding, for key worker accommodation for many years.

In fact the background to the demise of any focus on accommodation for key workers is well described in a November 2019 presciently topical Policy Exchange paper, Revitalising Key Worker Housing by Jack Airey (now of course a No 10 policy advisor) and Sir Robin Wales (previously leader, and then mayor, of Newham Council).

Back in 2000, the Blair Government launched the Starter Home Initiative, which aimed to provide low cost home ownership for key workers, primarily nurses, teachers and police officers.

The then housing minister Tony McNulty, responded to a question in the Commons as to what progress had been made on providing key workers with affordable housing in central London:

The Government recognise the importance of affordable housing for key workers in London in maintaining balanced and successful communities.

£146 million of the £250 million Starter Homes Initiative has been allocated to London schemes and will help around 4,600 key workers to realise their aspirations of home ownership. We hope that the initiative will act as a catalyst, and encourage other innovative approaches to housing key workers.

The NHS in London is providing 2,000 units of affordable rental accommodation for health staff in the three years up to June 2003.”

However, as summarised in this 2004 Guardian article:

Uptake was slow and the help available often failed to keep pace with rapidly rising property prices. As it was confined to just nurses, teachers and police officers, it was also criticised as too narrowly focused.

In March 2004, the government devoted more resources to the problem and replaced the SHI with a £690m programme called Key Worker Living (KWL). Under the new scheme, eligibility for assistance was broadened to include social workers, fire-fighters, and prison and probation service staff.

The type of housing assistance offered under KWL was also expanded to include ‘intermediate’ rented housing – priced at levels above those of traditional social housing, but still below market rates.”

As described by Shelter, four products were available to key workers under KWL

⁃ equity (“Homebuy”) loans of up to £50,000 to buy a home;

⁃ higher-value equity loans up to £100,000 for a small group of London school teachers with the potential to become leaders in their field;

⁃ shared-ownership of newly built properties; and

⁃ intermediate renting at subsidised levels

Until April 2008, KWL leases contained a clawback provision where the beneficiary ceased to be a key worker.

In the affordable housing reforms, and grant cut backs, following the global financial crisis and the 2010 general election, there was no longer any specific key worker housing “pathway” promoted or funded by Government. The focus has instead been on “affordability” judged by reference to rental/income levels and without reference to the applicant’s occupation. Responsibility for affordable housing in London transferred to the Mayor in April 2012 and since his election in 2016 Sadiq Khan has pursued a specific approach, driven by the obvious concern that the Government’s definition of “affordable rent”, based on discount to market value, does not necessarily enable local housing needs in London properly to be met. On London’s Dave Hill has written a good explainer, What are London ‘affordable’ homes and who can afford them? (17th December 2018), subtitled “An attempt to explain the almost unexplainable”.

The specific challenges faced in London have been covered well in papers such as these:

Fair to middling: report of the Commission on Intermediate Housing (November 2015)

Estimating the Value of Discounted Rental Accommodation for London’s ‘Squeezed’ Key Workers (Dolphin Square Foundation, October 2016)

Back in December 2019 the Mayor promised a consultation in intermediate housing during the course of 2020 “which will seek views on a range of issues, including how we can ensure that key workers benefit from intermediate housing in the capital”.

From a national perspective, we did see reference to key workers in the Government’s February 2020 consultation document on its proposed First Homes programme, “prioritised for first-time buyers, serving members and veterans of the Armed Forces, and key workers, such as nurses, police and teachers” (see my 29 February 2019) blog post (perhaps the Policy Exchange influence there, in the light of its December 2019 report?), but what is the Government’s stance more generally as to whether key workers should be given priority in relation to particular forms of affordable housing?

And indeed (the point at which the nice ideas start to stall), how do you even define “key workers”? The “essential workersdefinition may be appropriate for the purposes of the current Covid-19 crisis but would not necessarily be appropriate in the longer term – it is in some instances potentially too narrow and in other respects too wide.

The difficulty is possibly rooted in an uncomfortable fundamental truth. In a functioning market-based economy, who isn’t a key worker? The problem is rather that there are many people, some skilled some unskilled, carrying out relatively poorly paid roles, without which society certainly couldn’t function, and who cannot secure adequate, suitable and convenient accommodation due to the disparity between what they earn and the cost of renting or owning property.

The “correct” longer term solution is plainly a twofold one of significantly raising those earning levels (which is not going to be easy as presumably we enter another economically challenging period) and of reducing, or at least stabilising, property costs (also not easy, given lack of supply). We will only ever paper over part of the problem of inadequate salary levels by requiring developers to subsidise the affordability gap.

But in an imperfect world of course we do need an “incorrect” shorter term solution, which surely must be to ensure that those in defined categories of occupation are now given proper priority when it comes to affordable housing tenures of all kinds, and that developers who are prepared to make a meaningful commitment in that respect (particularly if supported by employers of key workers) are not faced with an overly restrictive application of local affordable housing policies until such time as those policies catch up.

Our carers (widely defined) certainly deserve a lot more than a badge at the end of this.

Simon Ricketts, 18 April 2020

Personal views, et cetera

NB Thank you to my Town colleague Lida Nguyen for some background research.

We Need Some Flex On CIL

Miles Gibson rightly spotted, in his good CBRE piece Community Infrastructure Levy – ten years old, but COVID-19 is its biggest test (7 April 2020), that the Community Infrastructure Levy Regulations came into force just over ten years ago, on 6 April 2010. (And who better to point it out, given that until 2011 Miles led on CIL at the Department of Communities and Local Government?).

Of course, after the regulations were brought into force, there was then a pause caused by the 6 May 2010 general election. Would the incoming coalition government scrap, or at least amend and rebadge, the system? In the end the system survived and, according to wikipedia at least, the London Borough of Redbridge was the first to adopt a CIL charging schedule, on 1 January 2012.

So CIL didn’t live through the global financial crisis, or previous recessions, as we have done. I have written before about the inherent inflexibility of the mechanism but, as Miles acknowledges in his piece, the current economic conditions are going to prove the big test for the levy.

He says “CIL’s inflexibility could prove its downfall if the forthcoming downturn is anything other than a short sharp shock. COVID-19 has created the biggest test which CIL has yet faced. If the downturn is lengthy, local authorities may need to hurriedly cut CIL rates to help return development to viability. Or, press the pause button on introducing CIL altogether.”

This may all be so, but there are also other, more nuanced steps which charging authorities could also be taking, with the encouragement of MHCLG, one would hope. For instance:

⁃ The switching on, within charging authorities, of the ability to apply for exceptional circumstances relief – and if there isn’t sufficient movement on this I would argue for its automatic national application by way of a change to the regulations. Whilst ECR is a cumbersome process, and there are state aid considerations to be borne in mind, if these aren’t “exceptional circumstances” what are? And I suspect that the application of ECR will be more palatable than the reintroduction of section 106BA, which enabled developers to reduce or remove section 106 affordable housing obligations on the grounds of viability.

⁃ The introduction of instalment schemes for payment (currently discretionary) and the review of existing instalment schemes to push back timescales.

I was interested to see, via an update by Ashfords (Covid-19: Mitigating the impact of Community Infrastructure Levy (“CIL”) on stalled developments, 7 April 2020) East Suffolk Council’s pragmatic response to current developer cashflow problems, basically stepping outside the procedural tramlines of the Regulations. In its statement, Coronavirus: Actions for CIL, it sets out a series of commitments, including these:

Where development has already commenced, CIL demand notices will shortly be re-issued to allow for a 3 month extension to the next instalment due date and to subsequent outstanding instalments. This position will be reviewed towards the end of June and any further extension to instalment payment periods will be communicated. It will take time for notices to be prepared and issued, but this work will be prioritised.

An individual, case by case review of late payment interest and surcharges will be made and a pragmatic approach adopted to support customers in these circumstances.

CIL debt recovery will largely be paused for 3 months and will be reviewed towards the end of June 2020 with a view to extending this position if required.

Are there any examples of other charging authorities taking an equivalent stance? Clearly there are risks in such an approach and I would be cautious as to the extent that, for example, a funder with millions of pounds at stake, could rely on such a commitment. It is unfortunate that the Regulations are so inflexible as to lead to such sticking-plaster solutions.

Stepping back, unless authorities are now going to move very quickly to propose reduced charging rates and take positive steps in relation to instalment policies and ECR, wouldn’t a solution in current circumstances be for the Government to legislate so as to allow authorities, both in relation to existing permissions and permissions which have not yet been issued, either to (1) defer payment of CIL for a defined period or (2) allow an emergency discount of say 50% to be applied, conditional upon development being commenced within a defined period of time and then completed within a defined period (the period to be agreed with the authority having regard to its projected build programme and if the deadline is missed there would be clawback)? To reduce the extent that the authority is as a consequence unable to deliver essential infrastructure, the Government would need to make additional funding available, because after all the economic and social benefits of ensuring that development gets started again will be immense.

I don’t have the answers – I would welcome your much better ones (except “abolish CIL” – let’s be practical). However, I do know that (1) CIL is a massive, inflexible, cash drain for any development early in its implementation and (2) some additional flexibility would surely reduce the risk that many development projects will remain on hold even once normal life starts to return around us all.

Simon Ricketts, 10 April 2020

Personal views, et cetera

Pause Not Delete: Extending Planning Permissions

Happily, last week’s blog post, on the the scope for remote planning committee meetings, was superseded by regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 although of course there will be some practical challenges for authorities now to grapple with.

This post focuses on another specific, urgent, issue. I assume that there is a large measure of consensus that deadlines for commencement of development under planning permissions (and equivalent deadlines other related consents) should be “on pause” for at least the duration of this present lockdown and its eventual gradual unwinding. Otherwise either applicants are going to need to embark on expensive lengthy and time-consuming (for everyone) applications for a fresh planning permission in due course (with a further hiatus on any construction in the meantime) or contractors are going to be out there doing unnecessary implementation works just to keep the existing planning permission alive.

(Some of you at this point will take the opportunity to have a swipe at applicants who have left it until near the deadline before implementing a permission or before submitting applications reserved matters approval, but these are old arguments which I have addressed before).

The current law

My 16 July blog post Unpacking UseItOrLoseIt considered the law on time limited planning permissions and the amendment that was made to section 73 by way of the Planning and Compulsory Purchase Act 2004 so as to prevent section 73 being used to extend the life of planning permissions.

In the wake of the 2008 global financial crisis, a procedure was allowed for, by way of the Town and Country Planning (General Development Procedure) (Amendment No. 3) (England) Order 2009, which sidestepped section 73 and provided for a simplified procedure for grant of a “replacement planning permission” for planning applications made for a planning permission to replace an extant permission, granted on or before 1st October 2009, for development which has not yet begun, with a new planning permission subject to a new time limit. For such applications, the requirement to provide a design and access statement was disapplied, consultation requirements were modified and plans and drawings did not have to be provided. Guidance was provided in the Government’s Greater Flexibility for Planning Permissions document.

As explained in the explanatory memorandum to the subsequent Development Management Procedure Order 2010:

7.6 In 2009, the Department became aware of a reduction in the implementation rate of major schemes that already have planning permission. If large numbers of permissions are not implemented and subsequently lapse, this could delay economic recovery. Developers would have to make new planning applications for those schemes, which could lead to delay and additional costs. Furthermore, local planning authorities could find themselves dealing with a sudden upsurge in applications as the economy moves out of recession.

7.7 Following calls from the Local Government Association, the Confederation of British Industry and the British Property Federation, SI 2009/2261 amended the GDPO to introduce a new power to allow the time limits for implementation of existing planning permissions to be extended. The amendment enabled existing planning permissions to be replaced before expiring, in order to allow a longer period for implementation (although the previous planning permission is not revoked, rather a new permission granted subject to a new time limit). For this new kind of application, the requirement for design and access statements was removed, and the requirements for consultation were modified. SI 2009/2262 made associated amendments to the Listed Buildings Regulations to allow the provisions to apply to linked applications for listed building and conservation area consents.”

The procedure was extended for a final year in 2012 (the impact assessment is interesting to look back to and compare with current circumstances).

The legislative options

It seems to me that there are two basic approaches which might be taken:

The “automatic” extension option

The Government could look to achieve an automatic extension, for a defined period in relation to all planning permissions – in relation to the deadline for implementation and possibly also any deadline for submission of reserved matters applications in relation to outline planning permissions – with the extension potentially only available where the deadline is going to expire within a defined period of time.

Surely, such a change would require primary legislation, to amend the operation of sections 91 and 92 of the Town and Country Planning Act 1990. The Coronavirus Act would have been a useful vehicle but possibly moved too quickly through its legislative changes for this potential measure to jump aboard in the way that was achieved with the provisions enabling local authorities to hold meetings remotely.

Such an approach has in fact been taken in Scotland, as explained in the Scottish Government’s Chief Planner letter dated 3 April 2020:

Some planning permissions will be due to expire over the coming weeks and months and, for various reasons caused by current restrictions, there will be difficulties in commencing development or carrying out necessary processes, such as the submission of applications for approval of matters specified in conditions, before deadlines pass.

The duration of planning permission is set out in primary legislation.  Recognising that activity is likely to slow considerably over coming months, we included provisions in the Coronavirus (Scotland) Bill which will extend the duration of all planning permissions which are due to expire during an ‘emergency period’ of 6 months, so that the relevant permission or time limit shall not lapse for a period of 12 months from the date those provisions come into force.”

More detail is set out in the policy memorandum dated 31 March 2020, accompanying the Coronavirus (Scotland) Bill:

The coronavirus outbreak will affect the ability of both planning authorities and applicants to deal with planning permissions which are due to expire. Planning permissions can broadly be separated into two categories: full planning permission and planning permission in principle.

When planning permission is granted applicants have a period of 3 years to commence development (authorities can provide for a longer period). If development is not commenced then that permission lapses and a new planning application is required. Planning permission in principle also requires the approval of conditions before development can proceed.

It is expected that the current restrictions on movement and potential continuation of social distancing and self-isolation will mean that applicants may be unable to satisfy the conditions attached to their planning permission or to commence development due to the shutdown of non- essential construction.

Policy objectives

The aim is to ensure that where a full planning permission or planning permission in principle would expire then that permission should not lapse for a period of 12 months from the date on which the provisions come into force, irrespective of that development having not been commenced. The permission would only lapse if development has not commenced before the end of the 12-month period.

In relation to applications for approval of conditions, if the last date for making an application for an approval is within the emergency period then the time limit for making such an application is to the end of the 12-month period.

Necessity and urgency

It is important that when the current restrictions on movement are relaxed, developers are able to pick up where they left off, continuing with construction and having a pipeline of sites ready to move onto once current sites are completed. It is also important to reduce the burden on planning authorities who may otherwise be inundated with new applications to obtain a new permission.

Consultation

The expiry of planning permission is an issue which has been raised by industry representatives who had expressed concerns about the ability of applicants to submit required information, apply to amend a condition to in effect get a new permission or commence development. Engagement at official level has also been undertaken with Heads of Planning, Scotland, Society of Local Authority Chief Executives, Society of Local Authority Lawyers and Administrators and the Convention of Scottish Local Authorities. Those consulted understood and appreciated the reasons for taking this action and were supportive of this intervention being time restricted.

Alternative approaches

No alternative to primary legislation is possible, and no powers exist which would allow these changes to be made in this way.”

I can only think of one way of achieving an automatic extension without primary legislation. What about creating a new permitted development right to carry out development within x months of the expiry of planning permission for development, subject to the expiry being before a specified date? There may be issues in relation to EIA development but is this a runner? Standard conditions applicable to any such PD right would need to secure the continued effect of any conditions attached to the original planning permission and somehow ensure that any existing section 106 planning obligations continue to apply.

The “enabling individual extensions” option

The alternative approach that the Government could take would be to find a way of enabling individual applications to be made that can be dealt with by authorities more simply than a fresh application for planning permission (which for a major application is a six or even seven figure sum investment, appalling as that figure is). In my view that would be less helpful than the Scotland-style automatic extension – this is not like the 2008 global economic crisis – all development is currently affected. A “pause” on time limits across the board is surely cleaner and would avoid a mass of individual applications. However, the “enabling individual extensions” option may be a quicker fix.

The “enabling individual extensions” options might include:

⁃ reintroducing the “replacement planning permissions” route exactly as per the 2009 statutory instrument, backed by appropriate guidance

⁃ (I appreciate this may jar but bear with me, we need to be creative) use of section 96A, given that there is no express prohibition (as there is with section 73) on the use of the non-material amendments procedure to vary time limits on planning permissions. Plainly, in normal circumstances, the extension of a time limit on a planning permission would be material, but could the Government, with proper justification, issue guidance that in the current exceptional circumstances, subject to consideration by the relevant local planning authority of individual circumstances when an application is made, it considers that in principle an extension of time for a period not exceeding, say, the current lockdown period, could be regarded as “non material”? I have re-read R (Fulford Parish Council) v City of York Council (Court of Appeal, 30 July 2019) and don’t immediately see that such an approach would be inconsistent with the approach that the Court of Appeal took to section 96A in that case.

⁃ (More cumbersome but surely legally achievable) the use of local planning authorities’ powers in section 97 of the Town and Country Planning Act 1990 to modify planning permissions where they consider it expedient.

What have I missed? I’m hoping that, like its predecessor, this blog post will very soon be past its sell by date.

Simon Ricketts, 4 April 2020

Personal views, etc cetera