The UK Government & Air Quality (ahem)

The saga over the UK government’s non-compliance with air quality standards has casualties: a recent study  estimated that around 40,000 premature deaths are caused per year due to air pollution.


The government has been in breach of the Air Quality Directive  since 1 January 2010, by failing to take measures to ensure defined maximum limits of nitrogen dioxide are not exceeded. Limits are currently exceeded in 38 out of 43 zones in the country (each zone representing a conurbation with a population exceeding 250,000). By way of example, acceptable levels are not expected to be realised in London until 2025. 
The Supreme Court in R (ClientEarth) v Secretary of State  (29 April 2015) made a “mandatory order requiring the Secretary of State to prepare new air quality plans under article 23(1), in accordance with a defined timetable, to end with delivery of the revised plans to the Commission not later than 31 December 2015”. 
The Government purported to comply with the order by way of an announcement on 17 December 2015  the main thrust of which was the introduction of Clean Air Zones in Birmingham, Leeds, Nottingham, Derby and Southampton by 2020, within which zones the most polluting vehicles would be discouraged through charging schemes. 
ClientEarth then embarked on a second set of proceedings, challenging the proposals on two grounds:
– they did not meet the Directive’s requirement that exceedance periods be kept “as short as possible”

– The government “gave disproportionate and unlawful weight to cost and political sensitivity“.

The factual background and law are set out in detail in Nathalie Lieven QC’s skeleton argument for ClientEarth.
In a bad week for the Government Legal Department, the High Court found for the claimant in a robust judgment by Garnham J handed down on 2 November 2016 (ClientEarth (no 2) v Secretary of State).

Some interesting passages:
Para 50: “…I reject any suggestion that the state can have any regard to cost in fixing the target date for compliance or in determining the route by which the compliance can be achieved where one route produces results quicker than another. In those respects the determining consideration has to be the efficacy of the measure in question and not their cost.”
Para 53: “…implicit in the obligation “to ensure” is an obligation to take steps which mean meeting the value limits is not just possible, but likely.”
Para 69: “Whatever the reason for selecting 2020 may have been, however, I am satisfied that the department erred in law in selecting so distant a date. The problem of reducing nitrogen dioxide levels was urgent and the plan to do so should have been aimed at achieving compliance in the shortest possible time, regardless of administrative inconvenience or the costs of making the necessary investigations.”
Para 86: “…In my judgement, the [Air Quality Plan] did not identify measures which would ensure that the exceedance period would be kept as short as possible; instead it identified measures which, if very optimistic forecasts happened to be proved right and emerging data happened to be wrong, might achieve compliance. To adopt a plan based on such assumptions was to breach both the Directive and the Regulations.”
Para 89: “…it seems to me likely that fixing on a more proximate compliance target date and adopting a less optimistic assumption for likely emissions might well mean that CAZs are required in more cities, but ultimately that will depend on the outcome of further modelling.”
The judge’s conclusions are set out in para 95: 
“i)  that the proper construction of Article 23 means that the Secretary of State must aim to achieve compliance by the soonest date possible, that she must choose a route to that objective which reduces exposure as quickly as possible, and that she must take steps which mean meeting the value limits is not just possible, but likely.

ii)  that the Secretary of State fell into error in fixing on a projected compliance date of 2020 (and 2025 for London); 


iii)  that the Secretary of State fell into error by adopting too optimistic a model for future emissions; and 


iv)  that it would be appropriate to make a declaration that the 2015 AQP fails to comply with Article 23(1) of the Directive and Regulation 26(2) of the Air Quality Standards Regulations 2010, and an order quashing the plan. “

Despite what the Daily Mail may think, the judge did not prescribe specific steps for the government to take, rejecting Nathalie Lieven’s examples of “fiscal measures to disincentivise the use of diesel cars and vans, locally targeted scrappage schemes, targeted vehicle retrofitting schemes and measures specifically targeting diesel cars, which she suggested ought to be adopted so as either to make more certain the achievement of the objectives in the Directive or advance the date of compliance“. How the limits are to be complied with is for the government to decide.


For a detailed analysis I recommend David Hart QC’s blog post.

The ruling led to a debate in the House of Commons on 3 November 2016. The minister stated: “We accept the judgment of the court and will now carefully consider it, and our next steps, in detail“. Does “accept” mean no appeal? We shall see. 
What does the ruling mean for planning decisions?
The government’s Planning Practice Guidance has a useful section on air quality.

However Robert McCracken QC’s 6 October 2015 opinion has been widely circulated as somewhat of a lobbying document for Clean Air in London, urging a more restrictive approach. It postulates that:
– because of the government’s breaches of the Air Quality Directive, LPAs have a duty in their decision-making to seek to achieve compliance with the Directive’s limit values

– where a development would cause a breach in the locality, would make significantly worse an existing breach or delay the achievement of compliance with limit values, they must refuse permission

– even where limit values are not exceeded in the locality, LPAs must try to prevent developments from worsening air quality and to achieve best air quality. 

The opinion relies on the CJEU’s ruling in Naturschutz Deutschland v Germany  (1 July 2015), a case about water standards under the EU Water Framework Directive. The conclusions reached in the opinion would now need to be tempered by the High Court’s ruling in the Enderby Wharf cruise liner terminal case, PS by his litigation friend TS v Royal Borough of Greenwich  (Collins J, 3 August 2016), where a claim that the LPA failed to consider and give effect to the need to ensure that air quality standards were met was unsuccessful – particularly as the opinion specifically refers to the cruise liner proposal by way of example and suggests, not borne out by the case, that the permission would only be lawful with a Grampian condition preventing use of the terminal until air quality could be shown to be acceptable. 

However (particularly following the latest ClientEarth ruling), in order to minimise the risk of judicial review, undoubtedly care is needed in relation to the analysis and assessment of any project that is in a location where nitrogen dioxide values are exceeded, would be exceeded as a result of the scheme, or would be significantly increased. There is obviously also a read across to the question of Heathrow expansion…
Simon Ricketts 4.11.16

Personal views, et cetera

Building Homes By CPO

This blog post supplements a 27 October 2016 Planning Futures event  hosted by City University on the role of compulsory purchase in solving the planning crisis.
Any discussion like this needs to be in the context of wider legislative and policy initiatives in relation to the operation of the planning system, of seeking to ensure that development is viable and of the role of the public sector in delivery. There is a risk that it is treated by professionals in a silo as a specialist discipline, rather than as an inherent part of the planning system.
Compulsory purchase is not to be considered lightly. But it shouldn’t be written off as a potential tool in the right circumstances. 
LPAs commonly have various concerns over use of theIr CPO powers – that the process
– is time intensive

– is costly

– can be politically sensitive

– needs specialist experience

– gives rise to compensation liabilities

– should be a last resort. 

Much of this true. However the power in section 226 of the Town and Country Planning Act 1990 is there to be used and there is detailed, relatively up to date (2015), guidance. Whilst the procedure is still not simple (it never will be), substantial improvements are being made to the legislative basis. 
Without the threat of CPO, will some, otherwise suitable, sites come forward? Allocation is not always enough to secure development. Indeed, radical thought: should permission in principle under the Housing and Planning Act 2016 in some circumstances come with the threat of CPO if development doesn’t proceed without good reason? The threat could be made clear by the LPA when placing land on its brownfield land register or in any other allocation intended to lead to permission in principle. 
Compulsory purchase is a tried and tested process with city and town centre retail-led schemes, where there is familiarity with the steps and approach to be taken by LPA hand in hand with its developer partner, with the developer partner meeting costs and compensation liabilities by way of an indemnity agreement. Properly drafted, such agreements can avoid difficulties in relation to the duty to secure best consideration in section 123 of the Local Government Act 1972 (Standard Commercial Property Securities Limited v Glasgow City Council  House of Lords, 16 November 2006) or in relation to public procurement (see my previous Section 123…Go!  blog post for more). 
Nationally Significant Infrastructure projects of course have the benefit of the bespoke DCO process under the Planning Act 2008, under which compulsory powers are routinely secured. 
In contrast, CPOs are not so common for housing-led schemes but there is no fundamental reason why this is so. 
Recent and forthcoming improvements to the compulsory purchase system include:
– Those in the Housing and Planning Act 2016  (eg wider powers to enter and survey land and tightening timescales, including timescales for securing advance payments of compensation)

– The imminent freedom under section 160 of the 2016 Act for NSIPs to include related housing on the same infrastructure development site or close to it, with a 500 homes cap having been consulted upon in October 2015.

– Those in the Neighbourhood Planning Bill  (eg facilitating temporary possession of land, codifying and limiting the no scheme world principle and enabling GLA/TfL acquisition of land for joint purposes – no doubt to be relied upon so as to maximise the potential for housing development unlocked by Crossrail 2 when the Hybrid Bill for that scheme comes forward). 

The Act and Bill were both preceded by detailed consultation papers, in March 2015  and March 2016  respectively. 
The changes are for a reason – because the Government wishes to see the powers used!
I assume that there is also appetite from private sector developers willing to partner with LPAs through the process, where significant sites can be unlocked as a result. 
Other bodies of course have CPO powers that can be used to bring about more homes, for instance the Homes and Communities Agency’s wide powers in section 9 of the Housing and Regeneration Act 2008, as well as the Mayor of London and his Mayoral Development Corporations. There is also the intriguing power in clause 48(1) of the HS2 Bill  :
“If the Secretary of State considers, having regard to the relevant development
plan, that the construction or operation of Phase One of High Speed 2 gives rise
 to the opportunity for regeneration or development of any land, the Secretary 5 of State may acquire the land compulsorily”
Obviously there are still pitfalls in the CPO process. I referred to some of them in a recent blog post, Regeneration X: Failed CPOs  since when we have had the Seaton Carew decision letter  dated 13 October 2016 , where the Secretary of State rejected a CPO on the ground that a planning permission (for a community and leisure based project) not rooted in planning policy was not a sufficient basis for use of section 226. Whilst there will always need to be a compelling case in the public interest to justify compulsory purchase, are the Aylesbury Estate and Seaton Carew instances of where the tests are being applied too strictly, or perhaps even an indication that the legislation and guidance should be reviewed again to assess whether the bar is in fact set too high?
More generally, shouldn’t more encouragement (and funding) be given by Government for the use of compulsory purchase to deliver housing sites, whether this is either by way of 
– LPAs either acting for themselves where they have access to funding, or backed by private sector developer partners, to deliver specific schemes or 

– the HCA and other bodies with regeneration CPO powers looking to assemble sites and bring them to market?

Although it seems not to be a popular idea with Government so far, let’s also not forget the potential for expanding by legislation the scope of the DCO process to encompass the very largest urban extension and new settlement proposals. 

Simon Ricketts 28.10.16
Personal views, et cetera

Noise Annoys

We’ve surely got to find better solutions to the conflicts arising between residents (in both new and existing homes) and noise generating or noise sensitive uses. Otherwise we will kill those activities that make cities what they are and an important element what attracts people to live in them in the first place: nightclubs; cinemas; music and sports venues; recording studios. 
Noise arises in the planning system in various ways:
– Effect of proposals on existing noise-sensitive uses

– Effect of proposals that will bring sensitive receptors near to noisy operations whose activities may over time be curtailed

– Effect of proposals for noisy activities on sensitive receptors


Effect of proposals on existing noise-sensitive uses
It has been a bad week or so for noise-sensitive uses:
London
R (Grand Central Sound Studios Limited) v Westminster City Council (Patterson J, 20 October 2016). The claimant operates eight recording studios from a building in central London, a use sensitive to noise and vibration. It unsuccessfully challenged, alleging (basically) irrationality and inconsistency of approach, Westminster City Council’s decision to grant planning permission for the residential conversion of an adjacent office building.
It was always going to be an uphill struggle once planning permission had been granted. Contrast with the well-publicised battle that has been fought by Air Studios in Hampstead against a nearby super-basement proposal. 
Manchester
The Secretary of State for Transport has approved proposals for the Trafford Centre extension to the Manchester Metrolink in the face of reported objections from the studios where Coronation Street is filmed. Paragraph 11 of the 13 October 2016 decision letter:
“The Secretary of State notes that the main effects of the … proposals due to noise and vibration would be on the production of “Coronation Street” at the ITV Trafford Wharf Studios due to construction noise, wheel squeal on the tight bend near the studios, and groundborne noise as a result of vibration from the trams. He accepts that construction noise should be able to be controlled through the Code of Construction Practice (“CoCP”); that occurrences of wheel squeal could be reduced by changing the wheel profile of trams, by control of the track gauge at the bend and by the use of a vehicle-mounted friction modification system; and that the effects of groundborne noise could, if necessary, be reduced by use of a “floating track slab” design in the vicinity of the studios. The Secretary of State accordingly agrees with the Inspector that these matters would be adequately addressed through the imposition and enforcement of planning conditions … which should ensure that measures are taken to avoid exceedances of the “just acceptable” noise levels specified by ITV

Effect of proposals that will bring sensitive receptors (people) near to noisy operations whose activities may over time be curtailed
Such as nightclubs…

Obar Camden Limited v London Borough of Camden  (Stewart J, 8 September 2015) was the successful challenge by the Camden nightclub Koko of a planning permission granted by Camden Council for a mixed use redevelopment of the adjoining public house. Koko was concerned that the presence of residents next door would jeopardise the future of the venue due to the risk of noise complaints. In contrast to the Grand Central Sound Studios case, the court accepted that the decision was irrational and also that the noise condition imposed was legally flawed:

“The tenor of the [officer’s report] is that so long as the noise consultant’s mitigation measures were implemented, this would require further details of those particular mitigation measures, then the proposed residential use would not “result in increase noise and complaints which may result in harm to the future operation of the neighbouring businesses.” This was not accurate. Therefore the overall effect of the report in relation to noise significantly misled the Committee about material matters which were left uncorrected at the meeting before the relevant decision was taken”
The claimant’s noise consultant “Mr Vivian’s report in effect says that the conditions cannot possibly fulfil the aims they seek to achieve. There is no evidence from [the defendant]. The court would not expect a detailed technical response and would not become involved in such a merits based argument. However there is nothing apart from the fact that the conditions were drafted by [the defendant’s] officers, to refute any of the points made by Mr Vivian. A brief witness statement setting out in summary form why issue was taken with Mr Vivian’s conclusions may well have been sufficient. Nevertheless the court is in effect left with a detailed and systematic witness statement alleging irrationality and nothing of real substance to begin to counteract it. Therefore in my judgment [the claimant] succeeds on this ground also.”

The Eileen House development in south London, near to the Ministry of Sound nightclub, was the previous cause celebre, called in by the previous Mayor of London and approved in 2014 after lengthy negotiations leading to:

– reportedly, a novel form of deed of easement being entered into by the owners of Eileen House allowing noise from the nightclub to pass over the Eileen House developments so that incoming residents would not be able to object to it

– condition 19 attached to the 7 January 2014 planning permission requiring flats to be adequately insulated against noise from the nightclub

– paragraphs 11 to 13 of Schedule 2 of the 6 January 2014 section 106 agreement  requiring noise mitigation measures to be kept in place and for incoming residents to be told about the noise from the nightclub. 

“Agent of Change”
The Eileen House approach could be seen as a domestic example of the Australian “agent of change” principle – that where development takes place near to noisy activities, it is for the developer to manage the impact of the change (see Music Venue Trust  for more information, or this detailed paper  from a 2014 noise conference held in Melbourne). 
Sadiq Khan has embraced the concept, reportedly  intending to introduce it into policy. His statement was made in the context of the problems faced by the Curzon cinema in Mayfair, being faced with complaints from incoming residents to newly converted flats in its building. Its problems arise from its tenancy position, unable to control the nature of its neighbours, and the difficulties of retrofitting soundproofing of its activities into a listed building. 
Whilst a Labour attempt  to introduce the concept into the Housing and Planning Bill failed, the Government did of course from 6 April 2016 introduce a further prior approval requirement into the office to residential permitted development right: a requirement to provide details as to the “impacts of noise from commercial premises on the intended occupiers of the development”. 
Effect of proposals for noisy activities on sensitive receptors
More traditionally, the introduction of noisy activities into residential areas has always led to disputes. We have recently seen a surge in popularity in outdoor music events, leading to a surge in popularity in related litigation, which often turns on collateral challenges to the lawfulness of temporarily closing off the relevant open area for a commercial event. 
The recent challenge to north London’s Wireless Festival, Friends of Finsbury Park v London Borough of Haringey  (Supperstone J, 22 June 2016) , was a case in point, along with Save Battersea Park’s recent litigation in relation to the holding of Formula E racing in Battersea Park and ongoing disputes in relation to events on Clapham Common.  
and beyond planning…
As with the Curzon cinema case, noise issues are not confined to the planning system – there is often an overlap with licensing and with private law, including landlord and tenant matters and the law of nuisance. The law of nuisance is beyond this blog’s pay grade but the key legal authority is undoubtedly Coventry v Lawrence  (Supreme Court, 22 July 2015), a case about noise from a motor sports track in Suffolk. The case considers, amongst other things, the relevance of how long the noise complained of has been generated (as to whether rights by prescription can be obtained after 20 years), the relevance of whether the activities have the benefit of planning permission, the relevance of whether the complainant has come new to the situation and the availability of injunctions. Worth reading in a quiet moment….
Final bars 
The Government’s planning guidance at present as to the treatment of noise in the planning system is useful eg paragraphs 123, 109 and 111 of the NPPF., the noise section in the Government’s Planning Practice Guidance  and its earlier Noise Policy Statement for England. However, whether at national or at local/city level, isn’t it time now for more a more explicit articulation of the agent of change principle – with a view to maintaining city living as a sound proposition? 
Simon Ricketts 22.10.16
Personal views, et cetera

Airports & Courts

The Government’s long awaited decision on airport expansion in the south east, following its interim 10 December 2015 statement, finally seems imminent. A Guardian 9 October 2016 story speculates that the decision will be taken at a cabinet meeting on 17 October (presumably meaning an announcement the following day) and that Heathrow will be favoured, in which case, according to an Independent story the same day, Gatwick will pursue expansion in any event.
New Civil Engineer on the hand speculates that both Heathrow and Gatwick will get the go ahead:
“It is believed that the announcement will be made on 18 October, with government giving the green light to a third runway at Heathrow immediately and also allowing Gatwick to expand with a second runway within the next five years.

Gatwick’s 30-year agreement with local authorities not to expand is due to expire in 2019.

It is also understood that government will urge Birmingham airport to advance its proposals for an additional runway.”

Whatever the timing and content of the announcement, two things are sure:

1. The process of turning the announcement into reality will be a slow and complex process. The Government confirmed in its 10 December 2015 statement that the DCO rather than Hybrid Bill process would be used. The first step will be an Airports national policy statement to form the policy basis for a DCO application or applications to be made in due course. Once the announcement is made I will cover in a future blog post the potential complexities, which would be acute were both Heathrow and Gatwick to proceed, in terms of the coordination required between competing promoters, but equally difficult if only one airport is favoured leaving the other to object, challenge and seek to promote its own proposals independently. 

2. There will inevitably be litigation at each administrative step of the process, particularly ahead of the formal submission of any DCO application (because any challenges to that process, once it is underway, can only be brought once it has concluded). The litigation will be entangled with (1) ongoing issues as to the Government’s non-compliance with the EU Air Quality Directive (2) a slowly changing basis over coming years as to the extent to which UK environmental laws are underpinned by EU legislation (3) continuing efforts by the Government to speed up the judicial review process and discourage unmeritorious claims. 

Aside from the potential for the airport operators themselves to resort to litigation in response to the forthcoming decision, a number of campaign groups have also made their positions clear. For instance: 
– Teddington Action Group has restated on 11 October its threat of judicial review should one of the two Heathrow options be chosen, alleging bias on the part of the chair of the Airports Commission, Sir Howard Davies.
– Gatwick Area Conservation Campaign has written to the Secretary of State for Transport on 4 August 2016 threatening judicial review, referring to John Steel QC having advised that “there are a number of potential grounds able to be considered which are sound, including that a decision to choose Gatwick as the location for additional runway capacity in the South East, if based on political expediency, would be irrational”. They assert that they expect to be supported by “two County Councils and seven Borough and District Councils” as well as a number of MPs. 


Of course, resorting to the courts to try to stop airport expansion is nothing new. For instance:
R (Hillingdon LBC) v Secretary of State for Transport  (Carnwath LJ, 26 March 2010) – the challenge by various local authorities to the Government’s 2009 decision (abandoned following the 2010 General Election) to proceed with a third runway at Heathrow. 
R (Sanders) v Airports Commission and Secretary of State for Transport  (Patterson J, 2 December 2013) – Stop Stansted Expansion’s unsuccessful challenge to Airport Commission’s sift criteria on which its shortlist was to be based, again alleging bias on the part of a member of the Commission.

R (Stop Stansted Expansion) v Secretary of State for Transport  (Sir Thayn Forbes, 13 March 2009) – the same group’s unsuccessful challenge to the Secretary of State’s decision in 2009 to allow planning appeals increasing the cap on passenger numbers to 35m per annum (a cap which Stansted Airport’s owner MAG is currently planning to apply to increase, according to a Telegraph September 2016 piece ).

R (Griffin) v London Borough of Newham  (Court of Appeal, 20 January 2011) – Fight The Flights’ unsuccessful challenge to Newham Council’s 2009 decision to increase the number of permitted flights to up to 120,000 per annum (since when of course the Secretary of State has now allowed a planning appeal for expansion of the airport in a decision letter dated 27 July 2016).

RSPB and Lydd Airport Action Group v Secretary of State and London Ashford Lydd Airport  (Ouseley J, 16 May 2014) – unsuccessful challenges to the Secretary of State’s 2013 decision to allow a planning appeal for expansion of London Ashford Airport at Lydd. 

– R (Barraud) v CAA (2015), an unsuccessful challenge by campaign group Gatwick Absolutely NOT, again advised by John Steel QC, to the Civil Aviation Authority’s decision to implement airspace changes, on the basis of lack of consultation, referred to in a 39 Essex chambers update, where an appeal to the Court of Appeal appears to be in abeyance according to the campaign group’s website.

 This list should be depressing for all of us. From one perspective, these cases, largely unsuccessful in achieving anything but delaying projects (and perhaps unnecessarily raising the hopes of those asked to crowdfund the appointed lawyers) demonstrate the dead hand of the judicial review process on controversial decision and projects. How can we make progress with any real pace when political sclerosis is then followed by years of public law litigation? On the other hand, how can we balance economic, environmental and transportation priorities in a way that does not lead to entrenched opposition and allegations of inconsistency? And, taboo question, are some projects so huge and so political that the unwritten legal burden of proof on the part of a claimant becomes almost impossibly high? Establishment of the Davies Commission was a valiant attempt to de-politicise what was always going to be a controversial process. Unfortunately we are back where we always were: mired in politics, lawyers at hand. 

Simon Ricketts 15.10.16
Personal views, et cetera

(EIA + SEA) – EU = ?

Deadlines, deadlines. 
The EU’s 2014 amending directive on environmental impact assessment  has to be transposed by member states into domestic law by 16 May 2017. 
Given that Theresa May has announced that Article 50 of the Lisbon Treaty will be invoked by the UK government by the end of March 2017, which would see us out of the EU by the end of March 2019, does the 16 May 2017 deadline matter?
The Scottish Government is currently consulting  on transposition, with a consultation deadline of 31 October 2016. The Welsh Government is consulting  with a consultation deadline of 11 November 2016. 
I have seen no signs of any equivalent work underway for England or Northern Ireland, despite the lengthy lead-in period to the transposition process if it is to be done in accordance with the UK government’s own guidance .

This can only be deliberate but is going to lead to problems for developers and LPAs alike. 
What does the amending Directive change?
The changes are significant. For instance:
– More information is to be provided with requests for screening opinions, requiring more analysis and work at an earlier stage

– Mitigation measures considered at the screening stage need to be specified and retained in the final development proposals

– Reasoning for screening opinions and directions are expressly required

– If a scoping opinion is obtained, the ES must comply with it

– The Environmental Statement becomes an ‘EIA Report’

– It will need to be prepared by ‘accredited and technically competent experts’

– Decision makers in reaching decisions will need to decide whether the environmental information is up to date or whether further updated information is required

– The decision maker will need to decide whether to impose monitoring obligations to cover the implementation and management of the project

– The minimum public consultation period in relation to the EIA report will be 30 days (whereas the UK minimum period is of course 21 days).

It is not of course unknown for a member state to be late in transposing a Directive, but there are real consequences. The state can be fined for its failure to transpose. But, of more specific relevance to developers and LPAs, the failure to transpose the Directive by the deadline can in some circumstances lead to grounds of challenge for a claimant when, for instance, seeking to challenge a planning permission on the basis that the LPA has not complied with the requirements of the Directive. The Directive applies where projects have not been screened or scoped – or the subject of an ES submitted – by 16 May 2017. 
So, pre 16 May 2017, the 2011 Regulations will continue to apply (as long as you have screened, scoped or submitted) and post 16 May 2017 it would be prudent to comply with the substance of the amending Directive. 
But what will happen once we have left the EU? Well of course we have been promised the ‘Great Reform Bill’ which seems designed to retain UK legislation that transposes EU legislation in some holding pen, from which laws will be taken out individually over time to be amended or repealed. Accordingly, even after March 2019 (or whenever our exit from the EU turns out to be) the 2011 EIA Regulations (as amended from time to time) will continue to apply until further notice.
In my view it would be a mistake to envisage any substantial repeal of environmental impact assessment legislation, as opposed to attempts no doubt at streamlining. 
Accordingly, the stream of EIA case law will undoubtedly continue. Some 2016 highlights:
R (XY) v Maidstone Borough Council  (Deputy High Court Judge Rhodri Price-Lewis QC) – held that negative screening opinion was lawful – on the facts no requirement to treat proposal for gypsy site as inevitably part of a larger development proposal given other similar proposals in the area. 
R (Jedwell) v Denbighshire County Council  (Hickinbottom J, 16 March 2016) – reasons for negative screening opinion not given within a reasonable period of time but permission not quashed. 
R (Licensed Taxi Drivers Association) v Transport for London  (Patterson J, 10 February 2016) – challenge to London’s east-west cycle superhighway failed – determination of adverse environmental effects was for the LPA.
SEA
The SEA Directive  is fully transposed into law in England by the Environmental Assessment of Plans and Programmes Regulations 2004  – also destined for the Great Repeal Bill holding pen. 
In the meantime the cases continue. According to a Landmark Chambers update  we await the outcome of R (RTE Built Environment Limited) v Cornwall Council in relation to the St Ives Neighbourhood Plan, with its proposed second homes ban, following a hearing on 6 October 2016. 
More selfishly, a number of us who have contributed chapters to the forthcoming book by Greg Jones QC and Eloise Scotford, The Strategic Environmental Directive: A Plan For Success?  are hoping that it has a long and relevant shelf-life….

Simon Ricketts 8.10.16
Personal views, et cetera

4 Possible Improvements To The Planning System Using Black Box Thinking

If you’ve read Matthew Syed’s Black Box Thinking  , which you probably have, you’ll know that the theme is that people, teams and systems perform at their best when they learn continuously from mistakes and failures. The more complex the system, the more important it is that there is an open loop rather than closed loop culture. 

How to apply this to the planning system?
1. The Government should clarify the NPPF whenever necessary

I get it that consistency in overall policy direction is important. But it is scandalous that the ambiguities of this one document have caused and continue to cause such scope for disputes. Landmark Chambers keep a very useful digest of court rulings in relation to the interpretation of the NPPF. Just look at the hundreds of cases listed and reflect on the time, cost and delay that each has caused to public sector and private sector alike. 

Three examples, each of which could be immediately resolved with the insertion of a classificatory footnote:

– I am obviously pleased to be one of numerous lawyers acting in the Hopkins Homes v Suffolk Coastal; Cheshire East v Secretary of State and Richborough Estates litigation, to be heard in the Supreme Court in February 2017. But why is this hearing even necessary? The case turns upon whether the Court of Appeal was correct when it ruled on 17 March 2016 that when the Secretary of State wrote in para 49 of the NPPF “relevant policies for the supply of housing” this is to be properly interpreted as “relevant policies affecting the supply of housing”.

– Heading towards the Court of Appeal is Dartford Borough Council v Secretary of State  (Deputy High Court Judge Charles George QC, 21 January 2016), the issue being whether the court was right to conclude, from the inclusion of “residential gardens” in “built up areas” from the definition of “previously developed land” or “brownfield land” within the NPPF, that residential gardens in outside built up areas are not to be regarded as previously developed land. 

– Similarly currently heading to the Court of Appeal is R (DLA Delivery) v Lewes District Council  (Foskett J, 31 July 2015), on the question whether a neighbourhood plan can precede an up to date local plan. 

These are narrow points that do not require any wholesale re-writing of the NPPF. 

It is ironic that the gestation of the NPPF lies in the conservative party’s 2010 Open Source Planning document. This is far from open source planning.

Isn’t it also odd in the extreme for so many lawyers and planners to be attempting to make sense of what the NPPF really means, when this document is no Oracle of Delphi: it is a practical plan written on behalf of Government to express its desired political direction and the current Secretary of State no doubt has a view which can be simply expressed by way of footnoting the document!
2. Learn from experience



Legislative changes commonly are brought about with little by way of initial experimentation in pilot areas – save where the proposal is so outlandish (such as the idea of alternative providers of planning application processing services) that one suspects the pilot has been offered as a political compromise or to enable tactical retreat. 
The outcomes of pilots need to be rigorously reviewed, without preconception – and the pilot authorities need to be selected randomly, rather than those who volunteer. Would we have got into our current CIL mess with this approach? The more complex the system, the greater the inevitability of unanticipated outcomes. 
3. A more transparent system



I would hope that the Government’s chief planner Steve Quartermain receives on a say monthly basis a summary of:
– all Planning Court rulings which have found against the government

– all PINS reports where interpretation of government guidance, or application of procedure, has led to material uncertainty or problems

together with focused recommendations as to the corrections to policy or legislation that might as a result be made to stop that uncertainty or problem arising again. 

Does he?
Where problems are identified, they need to be addressed far more quickly. The current delay in relation to the CIL working party’s report is inexcusable. Furthermore, when changes are made they should always be made by way of consolidation of previous legislation. Anyone without a paid subscription to Westlaw or similar is at a complete loss in relation to the various iterations of the CIL Regulations. 
Equivalently, on a local basis why don’t LPAs have to consider, openly, what changes in policy or approach may be needed as a result of adverse appeal outcomes in their district or borough? Do members even regularly learn, on an impartial basis, of the reasons why appeals have been lost?
More broadly, there is little systematic transparency so that all can learn from each other’s experiences. Whilst individual reports and decisions can be found, one looks long and hard for any national list of inspectors’ reports on plans (including, as importantly, notes of preliminary meetings and correspondence with the LPA raising issues) and, for appeal decisions falling back on Compass (a premium rate service!), the planning press and word of mouth. How can this help drive understanding, change or consistency?
4. Allow schemes to improve during the application and appeal process



We are moving increasingly to a system where applicants are encouraged to have their schemes fully designed and “oven ready” at the outset of the formal application process, with amendments, particularly during the appeal stage, frowned upon. The PINS planning appeals procedural guide  says that amendments should only be made “exceptionally” at the appeal stage:
“If an appeal is made the appeal process should not be used to evolve a scheme and it is important that what is considered by the Inspector is essentially what was considered by the local planning authority, and on which interested people’s views were sought.”

But hang on – as long as interested people’s views are indeed sought, isn’t it a good thing if a scheme evolves, for the better, as a result of prolonged exposure to opposing views or further information that comes to light? Of course it may be administratively inconvenient but won’t it often lead to a better outcome? Yes, that may lead to delays during the application or appeal stage but that should be something for the applicant or appellant to take on board.

End of polemic. It was a good book anyway. 

Simon Ricketts

Personal views, et cetera

The Latest on Viability Disclosure

Each September LD Events’ annual Viability and Planning conference comes around. My regular slot at the event covers ”transparency in the viability process – access to information” and it’s always interesting how the climate has changed over the previous 12 months. This blog post provides links to some of the key decisions and policy developments, supplementing my 27 September 2016 presentation. 

Information Tribunal

In the same way that previous years have been dominated by the Information Tribunal’s decisions in London Borough of Southwark v Information Commissioner, Lend Lease and Glasspool  (9 May 2014, Heygate Estate) and Royal Borough of Greenwich v Information Commissioner and Brownie  (30 January 2015, Greenwich Peninsula), this year there has been another big Information Tribunal decision: Clyne v Information Commissioner and London Borough of Lambeth  (14 June 2016, Streatham Megabowl).


Clyne is important because the Tribunal go in detail through all of the following elements of the viability appraisal, justifying item by item, their decision to order disclosure:

 • Private residential values broken down by individual unit size/location within the development?

• Affordable housing average values per square foot?

• Gross development value?

• Marketing budget?

• Construction costs?

• Professional fees?

• Projected costs : contingency percentage?

• Projected costs : letting/sale agent and legal fees?

• Benchmark land value?

• Surplus/deficit figure?

• Other : performance measures?

 This was a case where the figure allowed for developer’s profit had already been disclosed.

 Information Commissioner

 There has also this year been a plethora of decisions by the Information Commissioner. Each very much turns on its facts. However, the following basic principles are commonly set out:

 – The four necessary criteria set out in Bristol City Council v Information Commissioner and Portland and Brunswick Squares Association  (24 May 2010) to get to first base ie establishing that the information is commercially confidential for the purposes of Regulation 12(5)(e) of the Environmental Information Regulations 2004:

(i) Is the information commercial or industrial in nature?

(ii) Is confidentiality provided by law? This will include confidentiality imposed on any person by the common law of confidence, contractual obligation, or statute.

(iii) Does the confidentiality protect a legitimate economic interest? Where the arguments refer to the economic interests of a third party, it will not be sufficient for a public authority to speculate on the potential harm attached to disclosure. Instead, the public authority must have evidence that demonstrates the arguments genuinely reflect the concerns of the third party.

(iv) The confidentiality would be adversely affected by disclosure. Although this is a necessary condition, the Information Tribunal in the Bristol City Council case considered that the disclosure of truly confidential information into the public domain would invariably harm the confidential nature of that information. As such, if the preceding three stages of the test are fulfilled, it will follow that the exception is engaged. Where this is found to be the case, a public authority must next go on to assess whether the balance of the public interest required disclosure

– It is not sufficient that harm “might” be caused by disclosure. It is necessary to show that on the balance of probabilities it would be caused.

– Those resisting disclosure on the basis of the harm that would be caused need to show a specific link between precise categories of withheld information and the stated harm.

– Detailed consideration as to whether the public interest in maintaining the exemption is outweighed by the public interest in disclosure.

 These are some of the decisions from the last 12 months:

Sweets Way Estate  (Barnet, 9 August 2016) – disclosure.

Doone  (East Hampshire, 16 June 2016) – disclosure.

Aylesbury Estate  (Southwark, 25 April 2016) – disclosure. 

Bishopsgate Goodsyard  (Tower Hamlets, 22 March 2016) – disclosure.

Heygate Estate  (Southwark, 15 February 2016) – redactions of DVS reports upheld equivalent to what was withheld in Glasspool, ie proposed commercial values, financial gearing rates, base inflation percentages for the delivery period set against assumed regeneration inflation figures, cost analysis summaries and construction costs. 

Tuke School, Peckham  (Southwark, 13 January 2016) – overage provisions in sale contract withheld.

 Chase Farm Hospital site  (Enfield: 9 December 2015) – withheld: forecasted residential land sale receipts and assumed value of land associated with a new school. Sensitive negotiation position of NHS Trust.

Brentford FC new stadium  (Hounslow: 22 October 2015) – all disclosed except specific appraisal information relevant to subsequent negotiations.

 Silver Hill  (Winchester, 17 September 2015) – withheld: development value of individual elements of the scheme, breakdown of individual costs and resultant net development value and profit, estimated rental value of commercial property, percentage of estimated rental values which the proposed ground rents would represent, budget for acquiring third party land, estimated construction costs for individual blocks, letting and marketing costs, interest rate on financing.

 London boroughs turning up the heat

Ahead of any updated London-wide guidance from Sadiq Khan (and his promised team of viability specialists), different boroughs are taking different approaches. For example the Hounslow local validation list  October 2015 and Greenwich local validation list  January 2016 both now require unredacted viability appraisals, which will be publically available. Other boroughs have been adopting development viability SPDs, for example Islington’s January 2016 SPD  and Southwark’s March 2016 SPD  , both of which require justification for exempting any elements of an appraisal from disclosure. Other boroughs take a more traditional approach to treatment of commercially sensitive material – who knows, perhaps even heeding the advice at paragraph 4.3 of the RICS guidance on financial viability in planning  :

 “Pre-application discussions usually proceed on the basis of treating commercial information provided by a developer (applicant) or their consultant as confidential. In order to encourage openness and transparency in the viability process both at pre- and post- application, it is also often the case that the viability reports submitted to a local planning authority are required to be classified as confidential in part or as a whole. This is to encourage the applicant to disclose the maximum amount of information, which can then be reviewed and reported upon. LPAs should therefore be asked to treat and hold this information on a similarly reciprocal basis and respect that disclosure of confidential information could be prejudicial to the developer (applicant) if it were to enter the public domain. Information will usually be disclosed to the LPA adviser but not to the general public as it may be commercially sensitive.

 Simon Ricketts 26.9.16

Personal views, et cetera