simonicity

The Stressful & Sadly Often Necessary Task Of Keeping Planning Permissions Alive

At a time when political focus is on the actual delivery of development projects, sadly much of our time as planning lawyers is still spent on keeping planning permissions alive ready for some future time when the particular project may be viable or otherwise able to proceed.

Planning permissions take an age to secure. My 14 June 2025 blog post Why Does Negotiating Section 106 Agreements Have To Be Such A Drag? referred to the May 2025 Lichfields research work How long is a piece of string? which found that the average determination period for outline planning applications for ten or more dwellings in 2024 was 783 days (up from 284 days in 2014).

So, maybe two or three years after scheme design freeze, the developer achieves its planning permission. By which time the market and/or technical requirements may have changed. If a full planning permission it may well have the default implementation deadline of three years, failing which it will lapse. If an outline planning permission it may well have the default reserved matters submission deadline of three years and a default implementation deadline of the later of five years from grant and two years from the last reserved matters approval to be secured.

The Planning and Compulsory Purchase Act 2004 tightened the screw on developers in two ways: first by removing the ability to use section 73 applications to extend the deadline for implementation and the submission of reserved matters applications (subject to temporary extensions first allowed for in the wake of the financial crisis and secondly in the light of the Covid pandemic) and secondly by reducing the default implementation deadline to three years from five.

I would argue that those measures have not served to increase or speed up the delivery of development, nor has it cleared the system of planning permissions which are no longer ever likely to be built out. All it has done is increase the extent to which developers, when they are not ready to proceed with development, are driven to carry out a limited implementation strategy simply to keep the planning permission alive.

After all, relatively minor works pursuant to the planning permission may serve to keep it alive; a list of “material operations” is included in section 56 of the Town and Country Planning Act 1990:

“(a) any work of construction in the course of the erection of a building;

(aa) any work of demolition of a building;

(b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(c) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);

(d) any operation in the course of laying out or constructing a road or part of a road;

(e) any change in the use of any land which constitutes material development.”

However, care is needed, because the works carried out must not be in breach of any pre-commencement conditions on the planning permission (unless particular exceptions apply that have been established by case law). Often therefore, prior to works being carried out, it will be necessary to discharge various conditions or to vary them so as to allow for the implementation works to be carried out pre-discharge.

The Building Safety Act has given rise to an additional complexity in the case of “higher-risk buildings”, namely (in basic summary) buildings that are to contain at least two residential dwellings and which are either at least 18 metres in height or at least seven storeys. Under regulation 3 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, works can’t start to construction until building control approval has been secured, meaning that what may have been a straight-forward implementation strategy – perhaps digging a trench for part of the foundations of the building – may need to be ruled out given the current delays in the Building Safety Act gateway checks processes. (What is and isn’t determined to be a start to construction is left a little hazy, given that HSE guidance states that “carrying out of site set up, demolition of previous buildings, stripping out works or the excavation of trial holes or installation of test piles would not be considered as starting work“).

Thought will also need to be given to whether the implementation works trigger any onerous section 106 agreement obligations, bearing in mind that the agreement is likely to have excluded certain types of preliminary works from the definition of “commencement of development” in the agreement.

If the scheme is in an area where a CIL charging schedule is in effect, thought will also need to be given to the extent to which a community infrastructure levy payment is triggered and for how much: is this a phased permission where CIL for the relevant phase will be triggered, or will these limited works trigger payment of CIL for the entire development?

Lastly, how to have a document trail that can be relied upon in the future to demonstrate that the planning permission has been kept alive? There are well-trodden strategies for securing a certificate of lawfulness under section 191 or 192 of the 1990 Act (the two processes entail different strategies, with different risks and indeed even sometimes very different application fees).

Does it all have to be quite like this? What public policy purpose is served? I was interested recently to learn that in Northern Ireland, for instance, the position is different:

First, rather than the long list of material operations within section 56 of the 1990 Act, section 63 (2) of the Planning Act (Northern Ireland) 2011: “development shall be taken to be begun on the earliest date on which any of the following operations comprised in the development begins to be carried out—

where the development consists of or includes the erection of a building, any work of construction in the course of the erection of the building;

where the development consists of or includes alterations to a building, any work involved in the alterations;

where the development consists of or includes a change of use of any building or other land, that change of use;

where the development consists of or includes mining operations, any of those operations.”

Decisions of the Planning Appeals Commission in Northern Ireland have determined that for instance the laying out of an access or the digging of a trench is not sufficient to meet this test.

Secondly, there is a specific procedure in Northern Ireland for renewing planning permissions: Regulation 3 of the Planning (General Development Procedure) Order (Northern Ireland) 2015 , with Department for Infrastructure advice as follows:

“As a general rule, such applications should be considered and refused only where: (a) there has been some material change in planning circumstances since the original permission was granted (e.g. a change in some relevant planning policy for the area, or in relevant highway considerations, or the publication of new planning policy guidance, material to the renewal application); (b) continued failure to begin the development will contribute unacceptably to uncertainty about the future pattern of development in the area; or (c) the application is premature because the permission still has a reasonable time to run. This is not an exhaustive list and each application must be considered on a case by case basis.”

Is this a better approach? What do we think?

Simon Ricketts, 7 September 2025

Personal views, et cetera

Court of Appeal Cuts Down Epping Forest

It was interesting YouTube viewing this afternoon (29 August 2025) wasn’t it? A press summary has been released, which is what Bean LJ read out. A longer full text judgment will be published later today or Monday.

I cover Eyre J’s first instance ruling in my 20 August 2025 blog post Planning Law Is Being Used For Politicking About Asylum Seekers. But we can now forget about that ruling. The Court of Appeal has overturned it, with robust criticism both of Eyre J’s approach and, it must be said, that of Epping Forest District Council.

Kemi Badenoch, leader of the Conservative Party, has subsequently issued a statement urging council’s seeking similar injunctions to “KEEP GOING!”. That is reckless advice.

Nigel Farage, leader of Reform, has Xed:

“The government has used ECHR against the people of Epping.

Illegal migrants have more rights than the British people under Starmer”

Again, recklessly wrong, inflammatory even. And, as you will see, the rights of asylum seekers (not “illegal”, not “migrants”) under the European Convention on Human Rights played no part in the Court of Appeal’s reasoning.

Eyre J’s rulings in Epping Forest District Council v Somani Hotels Limited (19 August 2025) were:

To refuse to allow the Home Secretary to be joined as a party to the proceedings

To grant an interim injunction requiring the hotel to be vacated of asylum seekers by 12 September, until a final ruling in the proceedings at a full hearing which will take place in mid-October 2025

To refuse an interim declaration that the use of the hotel for asylum seekers’ accommodation is a breach of planning control (Epping Forest District Council subsequently, wrongly, represented in its subsequent press statement that the declaration had been granted but had to retract that when contacted by Planning magazine!).

Today’s appeals by the Home Secretary and Somani Hotels Limited were in respect of the first two matters and were successful.

Home Secretary to be joined as a party

From the press summary of the Court of Appeal’s judgment:

“The judge denied himself the opportunity to consider the wider range of public interest factors which would be relevant to this application; these, in our view, rendered it more than just merely ‘desirable’ that the Home Secretary be enabled to participate in the court process. The judge needed to put himself in a position to determine the application from the most informed perspective.”

Grant of the temporary injunction

The Court of Appeal found that although the question of whether to grant an interim injunction is a matter for the discretion of the judge, only to be set aside where the appeal court identifies “a flaw or flaws in the judge’s treatment of the question to be decided, such as an error of law, a gap in logic, or a failure to take account of some material factor, which undermines the cogency of the conclusion”, the judge had made “a number of errors of principle which undermine his decision.”:

(from the press summary:)

“The provision of accommodation for asylum seekers pursuant to the Home Secretary’s statutory duty is a national issue requiring a structured response. Ad hoc interim injunction applications seeking closure of particular sites may each have some individual merit, but the judge’s approach ignores the obvious consequence that closure of one site means that capacity needs to be identified elsewhere in the system, and may incentivise local planning authorities who wish to remove asylum accommodation from their area to apply to the court urgently before capacity elsewhere in the system becomes exhausted. The potential cumulative impact of such ad hoc applications was a material consideration within the balance of convenience, but was not considered by the judge, perhaps because he did not have the advantage in reaching his decision of evidence and submissions from the Home Office.”

Incidentally, the Court of Appeal goes on to describe as “unattractive” an argument raised by the Home Secretary as to a hierarchy of human rights with particular weight to be given to the fact that “the Home Secretary’s statutory duty is a manifestation of the UK’s obligations under Article 3 of the European Convention on Human Rights”. Even if in Farage language the government “used ECHR”, this is no basis for the Court of Appeal’s ruling.

“The fact that the judge gave even limited weight to the fact of protests occurring, including unlawful protests, outside the hotel, were “worrying aspects of the judgment. If an outbreak of protests enhances the case for a planning injunction, this runs the risk of acting as an impetus or incentive for further protests, some of which may be disorderly, around asylum accommodation. At its worst, if even unlawful protests are to be treated as relevant, there is a risk of encouraging further lawlessness. The judge does not appear to have considered this risk, again perhaps because he had denied himself the advantage of hearing submissions on the merits from counsel for the Home Secretary.”

By judicial standards this again is trenchant criticism by the Court of Appeal of Eyre J’s approach.

Epping’s previous delays in taking any steps whatsoever:

“For much of the period of four years from 2020-2024 Somani had been running the Hotel as accommodation for asylum seekers without enforcement action from the Council. When, in 2023, Somani sought planning consent to change its use, for over a year Epping did not process the application, notwithstanding the statutory duty upon it to do so within eight weeks. The Council was aware by February 2025 that the Hotel was once again to be used to house asylum seekers, and by its letter of 15 May 2025 Somani made clear that it had been advised by the Home Office that a planning application was unnecessary.

The Council took no steps in response to this letter whether by issuing an enforcement notice or otherwise. There was no threat of court proceedings.

Somani was first made aware of any step of this kind when it received the court papers and a court bundle running to over 1600 pages together with a detailed skeleton argument prepared by leading and junior counsel. The tactics used on the Council’s behalf in this regard were not only procedurally unfair to Somani, but ought to have reinforced the argument that the delay was a significant factor in the balance against the grant of interim relief.”

The hotel’s actions were wrongly characterised as “deliberate”:

“The judge found as a fact that Somani had acted “deliberately” in declining to seek change of use permission under planning law after April 2025; he was critical of them for taking this line. He was wrong in both respects. Those undeserved criticisms (which were repeated several times in the judgment) plainly played a material part in the judge’s ultimate decision. If the Council had considered Somani to be in breach of planning laws, it could have taken enforcement measures provided for within the 1990 Act. It did not do so. In short, the judge’s exercise of discretion in this case was seriously flawed by his erroneous reliance on the “deliberate breach” as a significant factor in favour of the grant of an interim injunction.”

The temporary nature of the injunction

“We emphasise here, as we did at the outset, that the issue for the judge in August was whether to grant a temporary injunction until the trial in October. The judge appears to have given very little weight to the desirability of preserving the status quo until that point. The risk of injustice to the residents of the Hotel by being dispersed by 12 September, when the trial of the claim was to take place only some six weeks later, seems to have had oddly little resonance with the judge.”

What now?

We now await the full hearing of the case in mid-October, where a central issue will be whether there is a breach of planning control in the first place. For the avoidance of doubt that question is not addressed by the Court of Appeal in its judgment – and did not need to be at this stage. Of course, it is conceivable that there will never be a full hearing if the Home Office decides no longer to use the Bell Hotel in any event.

It is inconceivable that any council would now succeed with an application for an interim injunction, save in the most extreme circumstances, ahead of a ruling following that final hearing, or a final hearing in any future case that is brought. There would be significant cost risks for any council that took that “KEEP GOING!” advice seriously.

Finally, as the court made clear, this case (like this blog post) is “not concerned with the merits of Government policy in relation to the provision of accommodation for asylum seekers, in hotels or otherwise.”

Simon Ricketts, 29 August 2025

Personal views, et cetera

Planning Law Is Being Used For Politicking About Asylum Seekers

The sheer extent of coverage, and speculation as to the implications, of Eyre J’s ruling in Epping Forest District Council v Somani Hotels Limited (19 August 2025) has a whiff of the silly season about it: the principles in the case law have not moved on substantively since my 14 January 2024 blog post Accommodating Asylum Seekers: Some Recent Planning Law Cases.

Eyre J’s judgment is a useful analysis of familiar principles. Why is it headline news then?

A whiff of the silly season but an even more pungent and worrying whiff of political opportunism – the Conservative party leader tonight (20 August 2025) encouraging all Tory-led local authorities to follow Epping Forest’s lead (despite the previous Government having set up this whole arrangement in the first place whereby hotels are block-booked by the Home Office via intermediary companies) and the Reform party leader encouraging more protests.

My personal view is that I’m not at all sure that we in the planning world should accept the planning system being used by politicians like this – whether to bash the government or to pursue largely misguided or misdirected campaigns against those who beyond doubt are vulnerable and in need. This is an issue for government to address, rather than to be fought out hotel by hotel via arguments about whether there has been a material change of use, based on old and inadequate case law. Particularly given that, if the statistics are to be believed, the use of hotels for asylum seeker accommodation is being reduced in any event and, to state the obvious, whilst the processing of asylum claims still needs to be sped up, these people need to be accommodated somewhere!

For those wanting to rely on the case, I draw attention to three key points:

This judgment is about an application for an interim injunction

The issue before Eyre J, as was the position in the Great Yarmouth and other cases mentioned in that January 2024 blog post, was whether to grant an interim injunction ahead of a full hearing of the case – and it is crucial to remember that the question of whether an interim injunction is to be ordered is down to the judge determining the “balance of convenience” on the specific facts of the particular case. Lawyers will be familiar with the American Cyanamid [1975] AC 396 test, which Eyre J summarises by reference to the later Sabmiller Africa v East African Breweries case [2009] EWHC 2140: “If the court is satisfied that there is a serious question to be tried, it must go on to consider whether the claimant would be adequately compensated in damages and whether the defendant would be in a financial position to pay them. If the answer to both of those questions is in the affirmative, no injunction should normally be granted. If not the court must consider whether the defendant would be adequately compensated under the claimants undertaking as to damages in the event of his succeeding at trial. If the answer to that question is “yes” the fact that the defendant may succeed at trial is no bar to the grant of an injunction. Where there is doubt as to the adequacy of damages for both parties the court must determine where the balance of convenience lies. If matters are evenly balanced it may be wise to take such measures as are calculated to preserve the status quo…A fundamental principle is that the court should take whatever course appears to carry the lower risk of injustice if it should turn out to have been the “wrong” course – in the sense that the court either grants an injunction which should have been refused or refuses to grant an injunction that should have been granted.”

Eyre J weighs up the factors in favour of an interim injunction at paragraphs 105 to 112 and those against at 114 to 116. The factors that weighed in favour included that the defendant hotel company had not made an application for planning permission or for a certificate of lawful use. The judge gave limited weight to “the fear of crime resulting from the use of the Bell; the need to address lawful protests; and the consequences of the actions taken to address unlawful activity.”

There is no final judgment as to whether there was a material change of use requiring planning permission

The court has expressly not reached any final judgment as to whether the accommodation of asylum seekers at the hotel amounted to a material change of use. Indeed, the council sought an interim declaration to that effect, which the court refused: “Although, as will be seen below, there is considerable force in the Claimant’s arguments that there has been a change of use the Defendant has counter-arguments which cannot simply be dismissed out of hand. In addition, as I have already explained, the question of the proper characterization of the use is fact-sensitive and for that reason alone this is not a case where an interim declaration is appropriate. Further, the second element of the proposed declaration, namely that the current use is not a permitted use, does not follow from the first element, namely that the current use is not use as a hotel. As Holgate J explained in Ipswich there will only have been development if there has not only be a change of use but if that change of use has been material. It follows that a declaration that the current use was not use as a hotel would not resolve matters and the court is not in a position at this stage to make a declaration that any change has been material.”

Eyre J does embark upon some analysis, although subject to this health warning:

“In doing so I am mindful that the case remains at the interim stage where there is limited evidence (and markedly less detailed evidence than could be expected at a final hearing and even more so than would be available if the matter were being considered at a planning appeal before an inspector); where the parties have had limited opportunity to advance detailed arguments; where the court’s opportunity for mature reflection is limited; and where the issues involve questions not only of fact but also of planning judgement.”

“There are a number of factors which operate against a finding that there has been a change of use. The principal ones are:

i) There have been no internal structural changes in the Bell.

ii) The external appearance of the Bell is unaltered – the presence of security fencing erected to address recent unlawful hostile activity is to be disregarded for these purposes.

iii) The Defendant’s staff continue to operate the facilities at the Bell and to provide the services there.

iv) Catering, cleaning, and related services are provided for those accommodated at the Bell in the same way as they previously were for hotel guests.”

There are, however, other factors which would support a finding of a change of use namely:

i)Those accommodated are all of one category of person namely single male asylum seekers.

ii) The entirety of the Bell is devoted to providing accommodation for those persons pursuant to an agreement with CTM and is to be so devoted for a significant period of time (it is the latter element which distinguishes the situation from that of a block booking of a hotel for conference or training course).

iii) Those accommodated have no choice in the location of the premises in which they are placed. They did not choose to come to the Bell and have no control over how long they are to stay there.

iv) None of those accommodated are paying for themselves.

v) Those accommodated have no choice as to their rooms nor as to those with whom they are to share. In most cases they will be sharing rooms with persons with whom they were not previously acquainted.

vi) None of those accommodated in the Bell has anywhere else to live in the United Kingdom.

vii) The Defendant is required to follow the instructions of the Home Office (presumably mediated through CTM) as to the room in which and with whom the asylum seekers are to be placed. The Defendant is expressly prohibited from agreeing to any requests for an upgrade of accommodation.

viii) Those accommodated in the Bell may come and go as they please but any of them who intends to leave for more than one day must obtain prior authorisation from the Home Officer. In addition if any resident is not seen for more than one day the Defendant is required to notify CTM and the Home Office. The Defendant is also required to obtain a signature from each resident each day.

ix) Security staff and a welfare officer are present to protect the residents and to attend to their welfare needs.

x) None of the facilities of the Bell are available for use by non-residents.

In considering the strength of the Claimant’s case on this question I have had regard to Holgate J’s reminder that the Court of Appeal has said that the distinction between hotel and hostel use is a fine one. Although a fine one the distinction is a real one and I come back to the point that the question is not whether the current use is as a hostel but whether there has been a change from use as a hotel. In light of the factors I have just set out there is very considerable force in the contention that there has been such a change here. Mr Coppel’s point that “the Bell is not a hotel for those who are placed there” is a powerful one.

I turn to the question of whether such change of use as there has been was material for the relevant planning purposes. In that regard it is “relevant to consider not only the on- site but also the off-site effects of the character of the use of the land” (Holgate J in Ipswich at [69]. There are a number of factors which support the Claimant’s contention that the change was a material one:

i) The nature of the on-site operation has changed in the extensive ways I have set out above.

ii) The opportunity for use of the Bell by members of the wider community has gone. It no longer provides a resource for dining, receptions, functions, and the like. I do not overlook the fact that such use has been very markedly reduced for a number of years but any scope for such use has totally gone for the duration of the use of the Bell under the contract with CTM.

iii) In addition, it is at least arguable that the contribution which those currently resident at the Bell can make to the local community will be different from that which could have been made by visitors to a hotel. Those currently resident there are all single males who will be resident for a significant period of time; who are resident there without choice; and who ex hypothesi are destitute or at risk of destitution (otherwise the Secretary of State would not be under a duty to accommodate them). Through no fault of theirs the contribution they can make (particularly in the form of the use of local services) and the role they can play in the community is different from that of those visiting a hotel in a particular place for business or leisure purposes.

I remind myself of the limitations of the material before me and of the need for considerable caution in making an assessment of the prospects at the interim stage. Nonetheless, the strength of the Claimant’s contention that there has been a material change of use is such that it operates as a factor in favour of the grant of an injunction in assessing where the balance of convenience falls.”

Each case is to be approached on its own facts

“… the outcome of this application turns on technical issues about the rules of Planning law and on the application of the established principles governing the circumstances in which a court should grant or refuse interim relief. It will be seen from the analysis I set out below that the application of those rules and principles to particular circumstances is acutely fact sensitive.”

The hotel and the Home Office (which sought to participate in this case at a late stage) are reportedly applying for permission to appeal to the Court of Appeal.

Will we now see other local planning authorities seeking to take similar action? Politics, politics. Will they succeed? Whether or not Eyre J’s interim injunction is allowed to stand, we still await the final High Court ruling later this year (assuming the case does not become academic in the meantime).

Simon Ricketts, 20 August 2025

Personal Views, et cetera

Picking Up The Bill: What Are We Now Thinking About Part 3?

As in the Planning and Infrastructure Bill. And as in how much is the bill and who pays it?

There has been much noise over Part 3 of the Planning and Infrastructure Bill (“development and nature recovery”) since the Bill was introduced into Parliament on 11 March 2025. For what it’s worth (maybe not a lot), I’ve been trying to work out what I think.

If you would like a summary of Part 3 as introduced, please see colleague Susie Herbert’s 13 March 2025 guest blog post PI Bill Guest Post – Some Early Thoughts On The Bill’s Nature Recovery Provisions. I then summarised some of the criticism of Part 3 in my 11 May 2025 blog post, Nature Recovery Position.

On the day that the Lords Committee stage started, 17 July 2025, the Government tabled a series of amendments to Part 3, seeking to strengthen it – see Summary: Planning and Infrastructure Bill, Government Amendments to Part 3 (Lords Committee Stage) (17 July 2025) and the amendments themselves tabled for Committee on 17 September (those tabled by Baroness Taylor relating to clauses 55 to 85).

The amendments had followed discussions with conservation groups and environmental bodies (see e.g. UK government putting pressure on nature groups to drop opposition to planning bill (16 July 2025)). The Office for Environmental Protection welcomed the proposed amendments in a statement published that same day, 17 July 2025:

“The Office for Environmental Protection (OEP) has written to government to welcome its proposed changes to the Planning and Infrastructure Bill.

In advice to government on the Bill in May, the OEP identified a number of areas where it advised environmental protections should be strengthened, while recognising the government’s intent to secure ‘win-win’ outcomes for development and for nature.

Government has now published details of a series of proposed amendments to the Bill.

OEP Chair Dame Glenys Stacey said: “The government’s amendments go a long way towards addressing the issues we raised in our advice.

“I have written to Matthew Pennycook, Minister for Housing and Planning, to acknowledge the significant extent to which government has taken positive steps in response to our advice.

“The Bill sets out government’s intention to strike a different balance between risk and opportunity for nature protection and for development.

“While it is our view that, even after the material amendments the government proposes, the Bill would, in some respects, lower environmental protection on the face of the law, we think that, in the round, the additional safeguards proposed today make government’s intended “win-win” for nature and the economy a more likely prospect.

“Should the Bill receive Royal Assent, the practical implementation of the new measures will be key. We will continue to watch closely and to scrutinise how this significant change in environmental law is implemented.”

That may be said to be a rather limp thumbs-up, but it is certainly a thumbs-up. Given that the Environment Act 2021 gave the OEP the principal objective, in exercising its functions, of contributing to environmental protection and the improvement of the natural environment, and given that its role includes giving advice as to proposed changes in environmental law, and given that the OEP will, I have no doubt, scrutinise implementation every step of the way, one might take some comfort from that position.

However, the amendments haven’t completely quelled concerns. For example, see the statement by CIEEM (i.e. the Chartered Institute of Ecology and Environmental Management) published on 18 July 2025:

“We believe that the Government’s proposed amendments still fall short. They fail to guarantee the vital safeguards nature needs, fail to preserve hard-won protections for species and habitats, and overall, still represent a step backwards for environmental standards in England. And let us not forget that these environmental standards deliver significant economic, health and wellbeing benefits for us all. This battle has not just been about protecting nature for nature’s sake, but also protecting the vital benefits and services that nature provides.

While the proposed improvements to Environmental Delivery Plans (EDPs) are a step in the right direction, major flaws do remain.

Most notable is the glaring absence of the mitigation hierarchy – a cornerstone of current environmental protections. Without it – and the imperative to avoid adverse impacts on biodiversity from occurring in the first place – the Bill opens the door to the devastation of some of our most important natural sites and species. And whilst we note the Ministerial Statement recognises the use of the mitigation hierarchy in EDP development, such Statements are too easily reversed and do not have the strength of primary legislation.

Equally important, is the need for EDPs to guarantee that environmental compensation and enhancement happen before any damage is done – so as to avoid a dangerous nature deficit and to protect vulnerable species from local extinctions.”

One of the Part 3’s most vocal critics is solicitor Alexa Culver, legal counsel at RSK Wilding, a company which uses “habitat restoration as a means of offsetting clients’ biodiversity and carbon impacts while concurrently generating other environmental and social benefits”. Alexa certainly knows her stuff and posted on LinkedIn on 18 July 2025 her “Legal Analysis of Government’s Proposed Concessions to Part 3 of the Planning and Infrastructure Bill”. It is worth a read but in summary her concerns assert the lack of “any legally meaningful protections for habitats and species, or our environment”; that Part 3 would “override any requirement for a “mitigation hierarchy”; that “irreplaceable habitats remain unprotected”, that there “remains no legal liability on any party to deliver compensation measures under an EDP”, creating “unacceptable risks for developers, who may see planning permissions refused because EDPs are failing”, and that in the case of a failing EDP “remedial action may not take place until 10 years after unmitigated harms to nature have occurred”.

The Chancellor possibly didn’t calm the debate by then positing the issue as people in housing need versus snails; Rachel Reeves defends retreat over planning bill as tactical move to speed up reforms (FT, 22 July 2025):

“Chancellor Rachel Reeves has claimed the UK government made a tactical retreat over its flagship planning bill in an attempt to speed it on to the statute book.

Ministers have been accused of watering down provisions in the bill, but Reeves on Tuesday said she hoped that the concessions would help “shave off a couple of months” of parliamentary wrangling in the House of Lords.

“I care more about the young family getting on the housing ladder than I do about protecting some snails,” she told an end-of-term hearing of the Lords economic affairs committee.”

The Lords Committee stage hasn’t yet reached Part 3; this will not be until September.

It’s interesting and, I would say positive, that the OEP posits that the “the additional safeguards proposed … make government’s intended “win-win” for nature and the economy a more likely prospect.” The truth is surely that without these measures we just carry on in a lose-lose position? We’re not really protecting or improving the environment; we’re not building homes.

Bear with me:

First of all, what is the issue which I think that the government is trying to solve by way of Part 3, or at least what I think Part 3 should be focusing on?

There is a lot of abstract talk, but surely at the heart of it all is the specific “appropriate assessment” test in regulation 63 of the Conservation of Habitats and Species Regulations 2017: basically prohibiting an authority from approving “a plan or project that is likely to have a significant effect (either alone or in combination with other plans or projects)” on a European site or a European offshore marine site (i.e. basically a special area of conservation or special protection area) unless it has “ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).” The only exception is almost impossible to meet – if the authority:

“is satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature), it may agree to the plan or project notwithstanding a negative assessment of the implications for the European site or the European offshore marine site (as the case may be).

(2) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (1) must be either—

reasons relating to human health, public safety or beneficial consequences of primary importance to the environment; or

any other reasons which the competent authority, having due regard to the opinion of the appropriate authority, considers to be imperative reasons of overriding public interest.”

So (1) we have a test which, unusually, is substantive rather than just procedural – there is no such “pass/fail” test in relation to anything to do with, say, approving projects which may endanger human health or the most precious and unique of heritage assets.

(2) We have a test which has come to be interpreted extremely strictly by way of European and domestic case law – see e.g. the 2018 CJEU Dutch nitrates deposition cases (concerning authorisations for schemes for schemes for agricultural activities in sites protected by the Habitats Directive and where nitrogen deposition levels already exceeded the critical load) and all that has followed.

(3) Largely due to systematic under-investment and mismanagement by successive governments in relation to the regulation of the water industry, of farming processes and of the use of fossil fuels, the ecological integrity of various special areas of conservation and special protection areas is already at or beyond tipping point, leading to the various de facto recommended vetoes on development by way of advice from English Nature: nutrient neutrality requirements in some areas, water neutrality requirements in others (NB the Chancellor’s “homes vs snails” comment is directly relevant to the north Sussex situation), restrictions on additional traffic generating development due to issues of nitrogen deposition in others and in yet others restrictions on homes due to the risk of additional recreational pressure on specific protected sites.

(4) Due to organisational inertia and possibly the lack of prioritised resources, authorities, often working with Natural England and/or the Environment Agency and other bodies, have been slow (at best – sometimes AWOL) in arriving at strategic schemes to mitigate or avoid adverse effects, meaning these vetoes on house building as well as, often, other forms of development, stay in place for years, with only the largest of individual projects able to arrive at a site-specific means of passing the “appropriate assessment” test, often with a consequent hit to viability affecting for instance the level of affordable housing that can be provided. Maybe – local politics – it even suits some local authorities to have those vetoes remaining in place?

I have written about this repeatedly. Stuck record.

29 June 2019 Another Green World: The South Coast Nitrate Crisis

9 October 2021 Development Embargos: Nitrate, Phosphate & Now Water

18 March 2022 New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper)

26 March 2022 More On That Natural England Advice

16 July 2022 Neutrality

All this time, a lose-lose.

The previous government snatched at a solution to the nutrients issue, which I described in my 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment – which envisaged simply excluding from the “appropriate assessment” test any “potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors.” This was so much more radical – and environmentally regressive – than anything proposed within Part 3 of the current Bill. Of course, it was decisively defeated in the Lords – see my 16 September 2023 blog post NN No.

We do need a solution! The Conservatives’ solution was never going to work. To the extent that Part 3 would enable the Secretary of State to give Natural England the role of coming up with tested plans, with strategic solutions to secure the recovery of special areas of conservation and special protection areas and to arrive at mechanisms for securing contributions from developers towards those measures – allowing individual developers having diffuse off-site impacts of the ecological condition of those sites to know that the “appropriate assessment” test is not for them to address (unless they want to embark on a site-specific solution) and that they can simply pay their way – I am supportive of Part 3. As OEP concludes, a win-win.

My concerns are probably coming from a different place to some of the opponents to Part 3:

I have deep scepticism as to how quickly or pragmatically these plans will in fact be delivered by Natural England, without a significant ramping-up of the organisation’s capacity and capability. And notwithstanding environmental campaigners’ concerns that Natural England will in some way, without specific legal duties, be soft as to what they require, the reality is surely that, far from for instance not applying the mitigation hierarchy or allowing irreplaceable habitats to be harmed, there is surely as much of a risk that they will “gold plate” what is required.

Is the Government being too ambitious in its framing of Part 3 as enabling EDPs not just to address these specific “diffuse off-site impacts” situations I have focused on in this post, but enabling them to address the ecological value of the particular development site itself, reducing the amount of on-site assessment required? For myself, I do still wonder whether this goes too far and whether, in any event, this will not in practice be the focus of initial EDPs.

Agree or disagree? Planning lawyer blog writers are certainly not a species with any form of protection so please do your worst.

Simon Ricketts, 3 August 2025

Personal views, et cetera

“Government to overhaul planning and licensing rules to make it quicker and easier for new cafes, bars and music venues to open in place of disused shops”

This was the government press release from Saturday (26 July).

“Government to overhaul planning and licensing rules to make it quicker and easier for new cafes, bars and music venues to open in place of disused shops.

New ‘hospitality zones’ will fast-track permissions for alfresco dining, pubs, bars and street parties.

Reforms will also protect long-standing venues from noise complaints by new developments.”

“The reforms will make it easier to convert disused shops into hospitality venues, and protect long-standing pubs, clubs, and music venues from noise complaints by new developments – ensuring the buzz of the high street can thrive without being silenced.

As part of this, the Government will introduce the ‘Agent of Change’ principle into national planning and licensing policy – meaning developers will be responsible for soundproofing their buildings if they choose to build near existing pubs, clubs or music venues.

New dedicated ‘hospitality zones’, will also be introduced where permissions for alfresco dining, street parties and extended opening hours will be fast-tracked – helping to bring vibrancy and footfall back to the high street.

The new National Licensing Policy Framework will streamline and standardise the process for securing planning permission and licences, removing the patchwork of local rules that currently delay or deter small businesses from opening. This means that entrepreneurs looking to turn empty shops into cafes, bars or music venues will face fewer forms, faster decisions, and lower costs.

This transformation is already underway through the High Street Rental Auction Scheme, which gives councils the power to auction off leases for commercial properties that have been vacant for over a year—bringing empty shops back into use and turning them into vibrant community hubs where people can enjoy a meal, drink, or night out.”

We wait to see what all this means in practice for our planning and licensing systems. The agent of change is after all already in the NPPF. Paragraph 200:

“Planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (such as places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. Where the operation of an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or ‘agent of change’) should be required to provide suitable mitigation before the development has been completed.”

Perhaps there will be a super-charged National Development Management Policy version? Anecdotally, I am still being approached by music venues finding that permissions have been granted for adjoining development without adequate noise mitigation conditions having been applied (most recently a London borough being prepared to consent to judgment in just such a situation). And is the government right to be removing the Theatres Trust as a statutory consultee on relevant planning applications, which is an important check against these sorts of problems arising in relation to some types of venue at least?

For more see my 11 May 2024 blog post Grassroots Music Venues Report/Agent Of Change which in turn references earlier posts.

Now shush, I need to work.

Simon Ricketts, 28 July 2025

Personal views, et cetera

A PPG Change Could Easily Mop Up This Surface Water Flood Risk Sequential Test Mess

It’s finally raining properly this morning. What else could I write about…?

The government’s general advice is that planning permission shouldn’t be granted for development in flood risk areas without an assessment first being carried out as to whether the development could be accommodated in a lower risk area. Fair enough, but a change to the government’s planning practice guidance in 2022 for the first time expressly extended this advice to “areas at risk of surface water flooding“, rather than just areas at risk of flooding from rivers or the sea.

Paul Smith wrote a brilliant explainer on this issue from a developer’s perspective in his 4 April 2025 blog post How puddles could stop the government building the homes we need.

The December 2024 version of the NPPF didn’t resolve the problem but at least alleviated it with the emboldened passage:

“170. Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk (whether existing or future). Where development is necessary in such areas, the development should be made safe for its lifetime without increasing flood risk elsewhere.”

“172. All plans should apply a sequential, risk-based approach to the location of development – taking into account all sources of flood risk and the current and future impacts of climate change – so as to avoid, where possible, flood risk to people and property. […]

“173. A sequential risk-based approach should also be taken to individual applications in areas known to be at risk now or in future from any form of flooding, by following the steps set out below.

174. Within this context the aim of the sequential test is to steer new development to areas with the lowest risk of flooding from any source. Development should not be allocated or permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding. The strategic flood risk assessment will provide the basis for applying this test.

175. The sequential test should be used in areas known to be at risk now or in the future from any form of flooding, except in situations where a site-specific flood risk assessment demonstrates that no built development within the site boundary, including access or escape routes, land raising or other potentially vulnerable elements, would be located on an area that would be at risk of flooding from any source, now and in the future (having regard to potential changes in flood risk).”

The problem is that we are still currently left with the specific reference in the PPG to the need for a sequential test in relation to areas at risk of surface water flooding (the passage I have emboldened) (and Mead Realisations v Secretary of State (Court of Appeal, 30 January 2025) of course tells us that there is no “legal principle that prevents national policy in the NPPF being amended, or altered, by guidance in the PPG.”):

“What is the aim of the sequential approach?

The approach is designed to ensure that areas at little or no risk of flooding from any source are developed in preference to areas at higher risk. This means avoiding, so far as possible, development in current and future medium and high flood risk areas considering all sources of flooding including areas at risk of surface water flooding. Avoiding flood risk through the sequential test is the most effective way of addressing flood risk because it places the least reliance on measures like flood defences, flood warnings and property level resilience features. Even where a flood risk assessment shows the development can be made safe throughout its lifetime without increasing risk elsewhere, the sequential test still needs to be satisfied. Application of the sequential approach in the plan-making and decision-making process will help to ensure that development is steered to the lowest risk areas, where it is compatible with sustainable development objectives to do so, and developers do not waste resources promoting proposals which would fail to satisfy the test. Other forms of flooding need to be treated consistently with river and tidal flooding in mapping probability and assessing vulnerability, so that the sequential approach can be applied across all areas of flood risk.

Paragraph: 023 Reference ID: 7-023-20220825

Revision date: 25 08 2022”

The Government had indicated in its 12 December 2024 response to the revised NPPF consultation process that it would “shortly be updating planning practice guidance to clarify the definition of reasonably available sites that should be considered as part of the sequential test”. We still wait for that updated guidance and in particular to see if it will address this particular difficulty over surface water flood risk. Paul’s blog post explains well the nonsense of, and work and cost involved in, carrying out a sequential test looking for sites at lower risk of surface water flooding.

Pending any amended guidance, there have at least recently been some pragmatic appeal decisions by inspectors, most recently:

Ham Road, Faversham, Kent (27 June 2025) This is summarised by Zack Simons KC in his 4 July 2025 blog post Floods, puddles and “strong” refusals (which also references two other recent decisions: Yatton (albeit that this is subject to legal challenge) and HMP Garth and Wymott, Lancashire. The Faversham inspector was faced with an appeal where no sequential test had been carried out despite the site being at risk of both flooding from the sea and by way of surface water. “The proposal includes changing the land levels, including raising them in some areas, with the result that all areas of proposed built development would be some 300mm above the design flood level, ie would not be at risk of flooding. This could be secured by conditions(s).”

“The extent of pluvial flooding risk is relatively limited. It is from ponding on the site in existing depressions and similar factors. The depth of the flooding would be relatively shallow. There is no risk related to interrupting an off-site surface water flow path, or effects on other off-site properties. It is a fairly typical existing situation on an agricultural field. As part of the design detail for the proposal at reserved matters stages, the precise land levels, drainage solutions, and landscaping would all need to be considered. Given the limited nature of the existing and future surface water flood risk, designing out the flood risk could be comfortably accommodated as part of this natural detailed design process.

Overall, therefore, there is no real world harm from either the failure to undertake a sequential test for tidal flooding or the failure to properly undertake a sequential approach. This is because it has been satisfactorily demonstrated that mitigation measures can make the proposed development safe for its lifetime from tidal flooding. There are also reasons other than flooding that result, although likely only in part, in the land levels changing mitigation measures. There would also be no real world surface water flood risk to the finished and occupied development proposal.”

Nor was the failure to carry out the sequential test a “strong reason for refusal” such as to disapply the tilted balance in favour of granting permission (which applied due to the local authority’s poor housing land supply position).

Appeal allowed.

Sherwood Cross, Feniton (11 July 2025). Here, the site is “conducive to overland water flow in high rainfall events”. Water attenuation is proposed to the north of the site to protect the development site but also to provide overall betterment, the details of the proposed attenuation scheme to be the subject of a Grampian condition.

“The Sequential Test undertaken by the Appellant has not considered potential housing sites in the wider local authority area, as identified by the Council. That is on the basis of the Appellant’s claimed position that the proposal would uniquely include flood alleviation measures that would significantly lessen the flood risk off- site within that part of Feniton to the south of the site along Colestocks Road and further to the south, and that there are no other sites that could provide such benefits to Feniton. However, whilst the flood mitigation measures are an element of the proposal, as previously referred to, the northern attenuation areas have a dual function including to protect the proposed development from any flood risk.

The proposal is therefore fundamentally a housing scheme with attenuation measures necessary, in the absence of any other proposed mitigation, to protect it from flood risk, which would also take the opportunity to provide betterment to off- site flood risk. There is no substantive evidence to indicate that the various other potential sites for housing put forward by the Council would be unsuitable or not have a lower risk of flooding. As such, I have no substantive basis to find that there are no reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding. The proposed development therefore fails the sequential test, in conflict with the Framework in this respect.”

However, the inspector goes on to conclude:

“I have also found that, in respect of flood risk, the proposal fails the sequential test and does not fully accord with policy EN22 of the Local Plan and F1 of the NP, having regard also to the absence of an agreed surface water outfall. However, I have also found that there would be likely betterment relating to off-site flood risk resulting from the proposals, in the context of the proposals making the development safe without increasing flood risk elsewhere. That would be subject to compliance with a Grampian condition to secure acceptable surface waterdrainage, which I have found would be appropriate in the circumstances of this case. Those factors therefore lessen the weight afforded to the above failures relating to the sequential test and development plan policy.”

Appeal allowed.

This pragmatism is all well and good but to assume pragmatism on the part of all decision-makers in the planning system is a mug’s game. Which is why we just need some clear guidance: of course if there is no certainty that any unacceptable risks arising cannot robustly be mitigated, surface water flood risk can and should be the basis for refusal of a planning application, but the sequential test should only be required in the case of sites at risk from flooding from rivers or the sea.

Oh and it’s still raining. Good.

Simon Ricketts, 19 July 2025

Personal views, et cetera

A Bluffer’s Guide To The English Devolution And Community Empowerment Bill

This weekend you will be worried that someone in the pub is going to say “hey, you’re a planner! … what’s the difference between a mayoral strategic authority, non-mayoral foundation strategic authority and single local authority foundation strategic authority; and between a CCA and a CA; and between the community right to bid and the community right to buy?”

You definitely need to be prepared and, rather than staying at home instead, there are probably three main options:

You could read the 338 page Bill that was introduced into the House of Commons on 10 July 2025, perhaps alongside the 156 pages of explanatory notes and 237 pages of impact assessment.

You could channel your inner Angela Rayner, by way of MHCLG’s 10 July 2025 press release or, for a deeper dive, a guidance document published by MHCLG, which serves to put the proposals within the Bill within a wider reform context.

You could (and have indeed already started to) read this bluffer’s guide (this bluffer being me).

Confession: I have only scrolled through the material once so far just identifying what seemed to be most immediately relevant. There will be much that I have missed.

Much of the Bill serves to give effect to proposals within the English Devolution White Paper (16 December 2024) which I commented on from a planning perspective in my 18 January 2025 blog post Viva La Devolution although there is much more besides.

Anyway, here is some stuff that may be useful:

The Bill is really about four main things (quoting from MHCLG’s guidance document):

“Devolution: describing devolution structures, outlining and expanding powers for Mayors and authorities through the new Devolution Framework and explaining routes to devolution for places that don’t have it.”

Local government: ensuring the process for local government reorganisation supports the ambition in the White Paper, outlining changes to local authority governance, reforming accountability and introducing effective neighbourhood governance structures to amplify local voices.

Communities: giving more power to local communities to purchase assets of community value and …”

(the guidance document includes this under the “communities” heading but it is of wider relevance than that) abolishing upwards only rent review provisions in commercial leases.

Devolution

Devolution deals have to date been arrived at in ad hoc fashion. The Bill allows the government to roll out a standardised devolution framework. I summarised the different types of strategic authority in my January 2025 blog post, but MHCLH have now published this series of five “Devolution Framework Explainers” , on:

Established mayoral strategic authorities
Mayoral strategic authorities
Non-mayoral foundation strategic authorities
Single local authority foundation strategic authorities

In relation to roads, strategic authorities will be required to set up and coordinate a “key route network”, comprising the most important roads in their area, in respect of which they will have various powers of direction and the power to set traffic reduction targets – and will have the role of licensing bike and e-bike hire schemes.

In relation to planning, they will have equivalent powers to those of the London Mayor; in addition to SAs’ duty to prepare a spatial development strategy, the mayors of combined authorities and combined county authorities will have the power to direct refusal of planning applications of potential strategic importance (Regulations will need to set out what the thresholds will be) or to call them in for their own determination. They will be able to prepare mayoral development orders, establish mayoral development corporations and, if there is an adopted SDS, levy Mayoral CIL. Mayoral SAs will also need to prepare a local growth plan.

Mayors will be able to appoint and renumerate “Commissioners” to lead on particular statutory “areas of competence”.

Mayors will be elected via the supplementary vote system, rather than “first past the post” (as was the system prior to May 2024). They will be able to be the police and crime commissioner for their SA area. They will not be able to moonlight as a member of Parliament.

What is all this likely to mean for particular areas? I’m glad you asked me that! MHCLG has also now published a series of 16 “Area Factsheets”, providing “information on areas benefitting from English devolution, including electoral terms, route to established status, police and fire functions, distinctive governance arrangements and local government reorganisation”, for:

Cambridgeshire and Peterborough
Devon and Torbay
East Midlands
Greater Lincolnshire
Greater London Authority
Greater Manchester
Hull and East Yorkshire
Lancashire
Liverpool City Region
North East
South Yorkshire
Tees Valley
West Midlands
West of England
West Yorkshire
York and North Yorkshire

Local government

This includes the power for the Secretary of State to direct two-tier councils to submit proposals as to how to become a single unitary tier and in some cases to direct particular unitaries to submit a proposal to merge with each other. The cabinet system will be compulsory for local authorities and there will be no new local authority mayors.

“The Bill will empower communities to have a voice in local decision by introducing a requirement on all local authorities in England to establish effective neighbourhood governance. The requirement for local authorities to have effective neighbourhood governance will empower ward councillors to take a greater leadership role in driving forward the priorities of their communities. This will help to move decision-making closer to residents, so decisions are made by people who understand local needs. Additionally, developing neighbourhood-based approaches will provide opportunities to organise public services to meet local needs better.” (from the explanatory notes, paragraph 98).

Assets of community value

The Localism Act 2011 introduced the “community right to bid” by way of the ”assets of community value” process (for a couple of examples of litigation in relation to assets of community value, see my 14 July 2018 blog post, 2 ACV Disputes). In that blog post I summarised the rather toothless nature of the current system as follows:

“The listing of land or buildings as an asset of community value has legal consequences but ones that will seldom be determinative as to an owner’s longterm plans. Whilst disposal of a freehold or long leasehold interest can’t take place without community groups being given an opportunity to bid, there is no obligation to accept any community bid that is made. The listing can be material in relation to the determination of an application for planning permission, but the weight to be attached to the ACV listing is a matter for the decision maker.”

The Bill proposes the strengthening of the system in several ways (again quoting from MHCLG’s guidance document):

“The community group and asset owner will either negotiate a price for the asset, or an independent valuer will set a price based on the market value. Under Community Right to Buy, the moratorium on the sale of the asset will be extended to 12 months, giving community groups more time to raise funding to meet the agreed purchase price. Asset owners will be able to ask the local authority to check that community groups are making sufficient progress on the sale 6 months into the moratorium.

The definition of an ACV will also be expanded to help protect a wider range of assets, including those that support the economy of a community and those that were historically of importance to the community. Community groups will be able to appeal the local authority’s decision on whether an asset is of community value and local authorities will be supported to deliver the powers with new guidance.”

(This will raise significant concerns with land owners I feel sure).

Although sports grounds can already fall within the ACV definition the Bill will introduce “a new type of ACV – the Sporting Asset of Community Value (SACV) and automatically designate all eligible sports grounds as such. As with the standard ACV regime, communities will have the first right of refusal when a ground is put up for sale. SACV status will also provide enhanced protections for sports grounds. For example, unlike the standard 5-year renewal period under the ACV system, sports grounds designated as SACV will retain this status indefinitely. Other facilities – such as car parks – that the ground depends on to function effectively – will also be eligible for SACV listing, preventing the ground from being undermined by the intentional removal of its supporting assets.”

Abolishing upwards only rent review provisions in commercial leases

This landlord and tenant law provision, well away from my wheelhouse, is a strange outlier within the Bill. As per the MHCLG guidance:

“The Bill will ban UORR clauses in new commercial leases in England and Wales. Commercial leases include sectors such as high street businesses, offices and manufacturing. Some very limited areas such as agricultural leases will be exempt. The ban will also apply to renewal leases where the tenant has security of tenure under Part II the Landlord and Tenant Act 1954. The ban aims to make commercial leasing fairer for tenants, ensure high street rents are set more efficiently, and stimulate economic growth.

Following the ban, if a UORR clause is in a new or renewal commercial lease, the requirement for rent not to decrease will be unenforceable; the new rent will be determined by whatever methodology is specified in the lease, for example in line with changes to the retail price index. The new rent may be higher, lower or the same as the previous rent.”

Enjoy your drink. Enough of all these acronyms, it’s an IPA for me please, thank you.

Simon Ricketts, 11 July 2025

Personal views, et cetera

How Do You Solve A Problem Like…Speeding Up Planning Appeals Without Being Unfair Or Counter Productive?

One of Rodgers and Hammerstein’s best.

MHCLG and the Planning Inspectorate this week announced that they would be imposing additional discipline on the parties to planning appeals which proceed by way of written representations. Regulations are to be introduced, to come into effect by the end of 2025, which will (according to accompanying detailed guidance):

expand the use of the simplified written representations procedure currently used for householder and minor commercial appeals (“part 1 appeals”) so that it will also apply to appeals in relation to the refusal of planning permission or reserved matters, the imposition of conditions on approvals and the refusal of prior notification or prior approval.

retain the six months’ appeal time limit for these appeals and allow PINS to transfer an appeal to the traditional written representations process where the simplified process “is not best suited for handling the appeal”.

not permit any further documents to be submitted by an appellant with their appeal beyond a copy of their application, the local planning authority’s decision notice and “a brief statement responding to the LPA’s decision and why they disagree.”

not permit an appeal statement or any other comments to be submitted by the local planning authority other than a copy of the information that they considered when deciding the application. “If members overturn an officer recommendation at committee, it’s important that meeting minutes and refusal reasons are robust and fully address any issues. LPAs should update their notification templates to communicate that any comments made by interested parties at the application stage will be shared with the Planning Inspectorate in the event of a part 1 appeal and that they cannot comment on the appeal.”

not permit any comments by third parties (although representations made during the application process will be made available to PINS by the local planning authority).

The procedure will apply to appeals in relation to applications submitted after the new system comes into force.

If this results in a crisper appeal process, without any loss of quality, there is much to like here, although care will be needed:

This makes it all the more important that applications when submitted are “appeal ready”, particularly as there is always a risk that the local planning authority may not allow amendments or additions to the application documentation to be submitted during the application process.

Local planning authorities’ reasons for refusal will need to carefully considered – and the reasoning within officers’ reports.

Third parties will also need to be careful to make their views known at application stage, without the ability to supplement them subsequently.

It seems that scope will be lost for parties to narrow down the points at issue during the appeal process.

The Planning Inspectorate recently changed its guidance to require completed section 106 agreements and unilateral undertakings to be provided when the appeal is lodged. The expansion of the simplified written representations procedure will make it even more important that the completed document has been agreed with the local planning authority and is robust.

There is usually uncertainty, when an appeal is lodged, as to what procedure the Planning Inspectorate will adopt: inquiry, hearing or written representations. What where the appellant is seeking an inquiry or hearing but the Planning Inspectorate determines written representations to be appropriate? That is already procedurally problematic (for instance when an inquiry is sought and the appellant ends up with a hearing).

Of course, some muscularity is needed on the part of the Planning Inspectorate to ensure that appeal timescales continue to reduce. That has been a successful aspect of the reforms to inquiry procedure, for instance as to the setting of dates for inquiries where we no longer have such a merry dance driven by counsel availability. But there are dangers, as demonstrated by this week’s ruling by the High Court in Tiwana Construction Limited v Secretary of State (Eyre J, 24 June 2025).

This related to a hearing into an appeal against West Suffolk District Council’s proposed development of 10 self-build houses in Burwell. As a result of comments by the inspector at the hearing, the appellant decided to submit a section 106 agreement committing to the provision of three of the dwellings as affordable housing. The inspector gave a deadline for submission of a completed section 106 agreement, and then extended it, but due to complications it could not complete an agreement by the inspector’s extended deadline and instead submitted a completed section 106 unilateral undertaking together with a note from the appellant’s solicitors setting out why it should be taken into account and was satisfactory but that an agreement would take longer.

The judgment makes interesting reading, showing that by the deadline the inspector had already prepared a draft decision letter, with a draft conclusion that the appeal should be dismissed. The judgment is revealing as to the correspondence that then ensued within the Planning Inspectorate between the inspector and her professional lead. The inspector was minded not to take into account the unilateral undertaking because she had some concerns about the drafting and she had been told she would be receiving an agreement rather than an undertaking and that a further extension would be needed for completion of an agreement. The inspector gave a written statement to the court hearing: “The Professional Lead advised me that as I was already going to dismiss the appeal for other reasons and the Claimant had not met my deadline for the provision of a S106 agreement, I should side-step the issue of affordable housing in my Decision Letter because it was not a determining factor in my decision…”

The Planning Inspectorate refused the request for a further extension (“This extension for the agreement has been rejected by the inspector. The inspector gave a deadline and was accommodating by agreeing to an extension. The agreement was not submitted in accordance with that extended deadline, so she will make her decision accordingly“) and the inspector then duly dismissed the appeal.

The decision was quashed:

“The position can be stated shortly. The Inspector made a deliberate decision to side-step the question of affordable housing in the Decision Letter. She took, therefore, a deliberate decision not to explain either why she was not taking the proffered affordable housing into account as a positive factor in favour of the appeal nor why she had no regard to the Unilateral Undertaking. This was not the result of inadvertence or of reasons being expressed in a clumsy or abbreviated form. It was a choice deliberately made by the Inspector. It had the effect that the Claimant was not given even the briefest of explanations as to why the affordable housing, for which the Unilateral Undertaking made provision, had not been taken into account. There was a failure to provide the reasons for the decision on a contentious matter of importance.”

Furthermore, “provision of affordable housing was obviously a matter of weight in the planning balance in this case. It was, therefore, to be taken into account even though doing so might not have changed the ultimate outcome.”

“It is at least possible that if the Inspector had considered the Unilateral Undertaking and had taken account of that provision she would have increased the weight she attached to affordable housing as a positive factor in favour of the appeal. It cannot, therefore, be said that the outcome would necessarily have been the same and relief is not to be refused on that basis.“

I’m sure we all have these procedural dilemmas on appeals from time to time. Completing the section 106 agreement or unilateral undertaking may be taking more time than anticipated for reasons outside the parties’ control, or further evidence comes to light which the inspector is refusing to receive. How far do we push it? This judgment repays careful reading.

Until next week, So Long, Farewell…

Simon Ricketts, 28 June 2025

Personal views, et cetera

AI Will Add To, Rather Than Reduce, Planning Delays Unless We Do Something About It

There was that boosterish press statement from the prime minister, PM unveils AI breakthrough to slash planning delays and help build 1.5 million homes: 9 June 2025. I’ve read it a few times, along with, for instance, the more detailed MHCLG Digital blog post, Extract: Using AI to unlock historic planning data (12 June 2025).

The “Extract” tool is targeted to be available for local authorities by next Spring to enable the easier digitisation of old planning documents and maps. Useful as it may be (“revolutionary”! “breakthrough”! “cutting-edge technology”!):

to talk this up as the way to “slash planning delays and help build 1.5 million homes” is, shall we say, pushing it; and
for the avoidance of doubt it should not be at the expense of us all being able to interrogate copies of the original documentation (memories of the transfer of authorities’ planning records to microfiche files – many an unhappy hour spent at those dreaded microfiche machines -and of whole swathes of planning records that have mysteriously disappeared as a result of, for instance, past waves of local government reorganisation).

In my 20 October 2024 blog post, Together In Electric Dreams I referred to some of the other technical advances which may help, and of course the legislation now enacted via the Levelling-up and Regeneration Act 2023 to set common data standards. The submission deadline has also just closed for MHCLG’s Geovation PropTech Innovation Challenge, where up to 12 companies will share in £1.2 million to develop solutions “to accelerate the delivery of 1.5 million homes in England through scalable PropTech solutions, and make a measurable impact on the yearly target of 300,000 new homes”.

However, are we sufficiently focused on the risks that AI ends up adding to, rather than, reducing planning delays, in particular though enabling submission by applicants and objectors alike of over-long and sometimes inaccurate material?

Lawyers will be well aware of the salutary case of R (Ayinde) v London Borough of Haringey (Dame Victoria Sharp and Johnson J, 6 June 2025), where a junior barrister, Sarah Foley, prepared grounds for judicial review which cited five cases which do not exist. Her evidence to the court was that “when she drafted the grounds she “may also have carried out searches on Google or Safari” and that she may have taken account of artificial intelligence generated summaries of the results (without realising what they were)”. The barrister was instructed by the Haringey Law Centre, whose solicitor and chief executive, Victor Amadigwe, gave evidence that: “Haringey Law Centre relies heavily on the expertise of specialist counsel. It has not been its practice to verify the accuracy of case citations or to check the genuineness of authorities relied on by counsel. It had not occurred to either Ms Hussain or Mr Amadigwe that counsel would rely on authorities that do not exist. When Haringey Council raised concerns about the five authorities, Ms Hussain and Mr Amadigwe wrote to Ms Forey and asked her to provide copies of the cases. Ms Forey did not do so, but she did provide the wording for the email that Ms Hussain sent on 5 March 2025. In the light of that wording, Ms Hussain and Mr Amadigwe did not appreciate that the five cases that had been cited were fake – they wrongly thought that there were minor errors in the citations which would be corrected before the court. Ms Hussain denies that Ms Forey told her that she had been unable to find the cases. It was only at the hearing before Ritchie J that they realised that the authorities did not exist. Mr Amadigwe has now given instructions to all his colleagues within Haringey Law Centre that all citations referred to by any counsel must be checked.”

The court decided not to instigate contempt proceedings against those involved but set out matters which required further consideration by the lawyers’ respective regulatory bodies.

The court’s judgment has these important passages on the use of artificial intelligence in court proceedings:

“4. Artificial intelligence is a powerful technology. It can be a useful tool in litigation, both civil and criminal. It is used for example to assist in the management of large disclosure exercises in the Business and Property Courts. A recent report into disclosure in cases of fraud before the criminal courts has recommended the creation of a cross-agency protocol covering the ethical and appropriate use of artificial intelligence in the analysis and disclosure of investigative material. Artificial intelligence is likely to have a continuing and important role in the conduct of litigation in the future.

5. This comes with an important proviso however. Artificial intelligence is a tool that carries with it risks as well as opportunities. Its use must take place therefore with an appropriate degree of oversight, and within a regulatory framework that ensures compliance with well-established professional and ethical standards if public confidence in the administration of justice is to be maintained. As Dias J said when referring the case of Al-Haroun to this court, the administration of justice depends upon the court being able to rely without question on the integrity of those who appear before it and on their professionalism in only making submissions which can properly be supported.

6. In the context of legal research, the risks of using artificial intelligence are now well known. Freely available generative artificial intelligence tools, trained on a large language model such as ChatGPT are not capable of conducting reliable legal research. Such tools can produce apparently coherent and plausible responses to prompts, but those coherent and plausible responses may turn out to be entirely incorrect. The responses may make confident assertions that are simply untrue. They may cite sources that do not exist. They may purport to quote passages from a genuine source that do not appear in that source.

7. Those who use artificial intelligence to conduct legal research notwithstanding these risks have a professional duty therefore to check the accuracy of such research by reference to authoritative sources, before using it in the course of their professional work (to advise clients or before a court, for example). Authoritative sources include the Government’s database of legislation, the National Archives database of court judgments, the official Law Reports published by the Incorporated Council of Law Reporting for England and Wales and the databases of reputable legal publishers.

8. This duty rests on lawyers who use artificial intelligence to conduct research themselves or rely on the work of others who have done so. This is no different from the responsibility of a lawyer who relies on the work of a trainee solicitor or a pupil barrister for example, or on information obtained from an internet search.

9. We would go further however. There are serious implications for the administration of justice and public confidence in the justice system if artificial intelligence is misused. In those circumstances, practical and effective measures must now be taken by those within the legal profession with individual leadership responsibilities (such as heads of chambers and managing partners) and by those with the responsibility for regulating the provision of legal services. Those measures must ensure that every individual currently providing legal services within this jurisdiction (whenever and wherever they were qualified to do so) understands and complies with their professional and ethical obligations and their duties to the court if using artificial intelligence. For the future, in Hamid hearings such as these, the profession can expect the court to inquire whether those leadership responsibilities have been fulfilled.”

The internet is becoming increasingly unreliable – and the introduction of Google AI at the top of any set of search results, certainly doesn’t help

Surely, much of this advice is equally relevant to the planning system. As referred to in my 20 October 2024 blog post we have the Planning Inspectorate’s guidance on the use of artificial intelligence in casework evidence. How is this being policed in practice? And what of submissions made by applicants and objectors at application stage? I was pleased to see this piece: Local authorities need to ‘get wise’ to residents using AI to object to planning applications, warns GLA digital lead (Planning Resource, 12 June 2025 – behind paywall):

“The GLA’s head of change and delivery Peter Kemp told Planning’s Planning Summit yesterday (Wednesday 11 June) that “part of really successfully planning towns and cities is having the confidence of our residents”.

While digital planning brings a variety of “really exciting and positive” benefits , unless authorities start to think about the risks of AI they are “going to lose the confidence of their residents”.

One example of this is “how many people are using AI to produce objection letters to planning applications and misquoting case law as a result”, said Kemp.

“As local authorities, we need to get really wise to this and we need to start thinking about the impact of that in how we operate and how we build the confidence of junior officers to really operate in that space as well”, he added.

Kemp also noted that as a result of digital planning, the role of monitoring officers across London over the last five years “has fundamentally changed”.

Historically, monitoring officers would be responsible for manually supplying data on thousands of applications a year, but “now that stuff happens automatically, so their role has changed to check the quality of the data”, he said.”

I wonder how many authorities have followed the approach of North Norfolk Council which now has specific reference to the use of artificial intelligence in its local validation list?

The reality is surely that we are all collectively sleepwalking.

Worryingly, there is a cottage industry in online firms offering AI platforms to generate planning objections:

Or people can obviously use the tools themselves, generating lengthy, superficially well-written prose, with numerous legal, policy and/or factual references to be verified. This ultimately helps no-one, least of all those putting their trust in these tools.

And the issue is not just with text but of course images too – see Iceni’s Rebecca Davy’s 10 June 2025 blog post AI tools are reshaping how we read the past – how can heritage consultants help to keep the records straight?

Rather than relying on authorities individually to set out guidance for anyone submitting documents for reliance in the operation of the planning system, wouldn’t it be better for firm guidance to be set down centrally by MHCLG, using as a basis the Planning Inspectorate’s current guidance?

When should use of AI be declared in relation to any submitted material?

What is and isn’t AI for these purposes? (Predictive text, proof reading and document transcription tools? More traditional web searches?)

What is the responsibility of person submitting the material to check the accuracy of the material, including underlying sources relied upon, and what should be the potential consequences if this is not done?

In any event, as I have been saying for so long, why do we not have indicative word and file size limits for different categories of material? Nearly every document submitted by anyone is simply too long and AI will exacerbate the issue. Now is the opportunity!

NB as always, in preparing this post I have had to avoid, for instance, WordPress’s “writing assistance” tool and, in uploading the images, the opportunity offered by Microsoft to “create an image using AI“. I get it why tools like this are increasingly popular but, without guardrails as to their use in connection with every element of the planning system, one thing is for sure: our jobs are going to become harder, not easier.

Simon Ricketts, 22 June 2025

Personal views, et cetera

Why Does Negotiating Section 106 Agreements Have To Be Such A Drag?

The HBF’s May 2025 research piece What is the timeframe for local authorities to agree community investment? shows what a huge drag on planning permission timescales is represented by the process of negotiating a section 106 agreement (which of course needs to have been completed before planning permission can be issued).

Read this:

“To better understand the current state of S106 agreement timelines, the Home Builders Federation (HBF) submitted a Freedom of Information (FOI) request to local planning authorities across England. These results are based on the data from more than 2,500 S106 agreements across over 50 local authorities.

The FOI exercise found that the average S106 approval timeline was:

2022/23: 425 days

2023/24: 459 days

2024/25: 515 days

In just two years, the average time required to finalise an S106 agreement has increased by 90 days – a 20% increase.

The responses also highlight the extremities that developers in some local authorities are facing. The maximum recorded timescale was 2,679 days, or more than seven years, for a single S106 agreement to complete the agreement process. The shortest average timescale reported by any of the respondent councils was 192 days.

Additionally, 35% of all S106 agreements took longer than 12 months to finalise. Across all responses, 76% of local authorities reported average timelines that exceeded a year, and over a third of councils had an average timeframe of over 500 days.

In 2024/25, 45% of LPAs had agreements finalised that had taken over 1,000 days to complete.”

The document doesn’t specify the scale threshold of applications considered (I’m assuming by the number of agreements that this is in relation to developments of any scale, not just complex schemes where we know that specific issues requiring bespoke solutions and substantive negotiations may required to unlock solutions). Nor does the document specify when these time periods are measured from: validation of the application, instruction of the LPA’s solicitor or the resolution to grant. Whatever, the statistics are appalling as is the relentlessly worsening trend.

The work is of a piece with the equally depressing Richborough/LPDF research carried out by Lichfields, How long is a piece of string? (16 May 2025). The average determination period for outline planning applications for 10 dwellings or more was 284 days in 2014. In 2024 it was 783 days. Given improvements in the performance of the Planning Inspectorate in relation to planning appeals (particularly appeals determined by way of public inquiry), it is now substantially quicker to secure a decision by way of appeal than by waiting for a final decision from the local planning authority.

This reflects our own anecdotal experience; we are seeing far more appeals on the basis of non-determination within the statutory period, and (tying back into that HBF work) one factor for clients is that with an appeal there is an external discipline upon the parties to agree and complete the section 106 agreement or unilateral undertaking within a specific, externally set, timescale.

Stepping back, this is all crazy and contrary to the efficient operation of the public sector. It’s equivalent to the use of A&E departments by those who find it faster, easier or more effective than going to their GP. Something is massively wrong with the operation of the planning system and it’s nothing that the Planning and Infrastructure Bill or indeed in the government’s December 2024 changes to the NPPF will fix. MHCLG’s proposed alterations to the system in relation to “minor” and “medium” residential development (summarised in my 31 May 2025 blog post Small Changes). Indeed I referenced in that post what was said in relation to section 106 agreements for “medium” residential development (less than 50 dwellings – although why stop at that size cap?):

“We … welcome views and evidence on:

1. the specific barriers facing SMEs in agreeing s.106 obligations – including availability of willing and suitable Registered Providers

2. what role national government should play in improving the process – including the merits of a standardised s.106 template for medium sites

3. how the rules relating to suitable off-site provision and/or appropriate financial payment on sites below the medium site threshold might be reformed to more effectively support affordable housing delivery, where there is sufficient evidence that onsite delivery will not take place within a suitable timeframe and noting the government’s views that commuted sums should be a last resort given they push affordable housing delivery timescales into the future.”

The lack of a standardised template is one issue. We end up having frustrating arguments over what should be uncontentious and standard wording, for instance to protect mortgagees in a way which is institutionally acceptable, or simply over our attempts to make a particular LPA’s “standard” drafting operate as the parties intend. The failure of the Law Society to update its June 2010 template (which never really achieved sufficient support and was not well used) is disappointing. Without drama we need a national template on the MHCLG website asap for smaller schemes, expressly supported by local government, the development industry and professional bodies (including those representing banks), with specific guidance as to the circumstances in which there can be departures.

But the problems go much wider than that:

Many LPA legal teams are woefully under-resourced, without a lawyer with the necessary experience, project management focus or internal clout to do more than act as a post-box with those instructing them, adding pressure and unfair responsibility on planning case officers or allowing other internal or external consultees to drive their particular agendas. There is often a reluctance on the part of the in-house legal team to outsource to an external law firm (even though the applicant pays and is usually eager to pay more if that results in faster delivery of the completed agreement) because of internal pressures not to de-skill further the in-house team or lose the ability to recoup costs.

I suspect that LPA lawyers (some of whom are true unsung heroes) would equally point the finger at some applicants’ solicitors – and indeed some applicants – who may be unprepared to back down from unreasonable negotiating positions or may introduce new points post committee resolution – or who may start ghosting them when something commercially is happening in the background.

Negotiations often start way too late. The government’s planning practice guidance on planning obligations (1 September 2019) says this:

“When should discussions on planning obligations take place?

Discussions about planning obligations should take place as early as possible in the planning process. Plans should set out policies for the contributions expected from development to enable fair and open testing of the policies at examination. Local communities, landowners, developers, local (and national where appropriate) infrastructure and affordable housing providers and operators should be involved in the setting of policies for the contributions expected from development. Pre-application discussions can prevent delays in finalising those planning applications which are granted subject to the completion of planning obligation agreements.”

So often though, this isn’t happening.

There also no easy answer if negotiations genuinely hit a brick wall – for instance as to whether a particular contribution is justified or as to the precise drafting of a particular clause. Section 158 of Housing and Planning Act 2016 specifically inserted section 106ZA and Schedule 9A (“resolution of disputes about planning obligations”) into the 1990 Act, to provide for a system where an independent expert could be called upon where there are sticking points in section 106 negotiations, but it was never brought into force. It’s sitting there just waiting to be fleshed out by an SI and switched on! Whether the third party were to make a binding determination or, more practically, gave non-binding guidance that would still carry some weight if an appeal were subsequently required, in my view this needs to be dusted off!

Section 106 agreements are also of course lumbering beasts of burden, the legal mechanism for delivering so many strands of public policy – affordable housing, affordable workspace, carbon reduction measures, social infrastructure (eg education, health), transport infrastructure, local employment and training, affordable workspace, air quality, the complexities of viability review processes. What can we deal with by way of other mechanisms (eg conditions), or standardise? What should be left to other legislation? The financial weight of the obligations in a section 106 agreement in relation to any large scheme is huge – in some ways, it is no surprise that the agreement may take as long or longer to negotiate than it took for the application to get from validation to committee resolution, but what can we simplify, speed up, twin-track?

The Planning Inspectorate also has its Planning obligations: good practice advice (updated 5 February 2025), which is more specific than the government’s planning practice guidance and has its more prescriptive timing requirements (completed planning obligation at the time the written representations appeal is lodged is a tough one…). This is the sort of thing (with suitable adjustments) we need for the application stage, with real consequences for those who do not follow it.

Going back to the HBF work, several suggestions for improvements were made, various of them overlapping with what I have been saying:

“Increase resourcing for planning departments: Local planning authorities are currently under significant resource constraints, which affect their capacity to process planning obligations in a timely manner. To alleviate these challenges, government should allocate targeted funding to increase staffing levels within planning departments. By investing in dedicated S106 teams and offering professional development opportunities, councils can improve both the speed and quality of agreement processes.
Develop national standard templates and best practices: A lack of standardisation in the drafting of S106 agreements often leads to protracted negotiations and inconsistencies across councils. The government, in collaboration with planning authorities and the development sector, should produce standardised procedural guidelines and clauses to minimise the need to draft agreements from scratch. In lieu of official standardisation, there could be clearer guidance and expectations on good practice.
Encourage a more flexible use of cascade agreements where necessary to ensure homes can be built and give reassurance to the developer that if an RP cannot be found, that the Affordable Homes can be changed to an alternative tenure or as last resort, a payment made to the LPA in lieu of the Affordable Housing.
Introduce statutory timelines for S106 agreements: Consideration should be given to implementing statutory or guideline-based timescales into the application and pre-application process for handling Section 106 negotiations and the drafting and signing of agreements.
Monitor, benchmark, and report performance: Introducing monitoring and reporting of S106 performance metrics could drive improvements. Local authorities should publish data on average timescales, agreement outcomes, and compliance rates as part of the general reporting on S106 agreements through Infrastructure Funding Statements. This information could be used to benchmark performance across regions, highlight best practices, and identify areas needing intervention. Increased transparency can also build trust among stakeholders and help developers better plan and budget projects.”

I’m sure this can be cracked, easily. Look what Bridget Rosewell’s recommendations on the planning appeal process achieved. If in a couple of years colleagues are still spending much of their time chasing for progress on draft agreements and having to explain to frustrated clients why there is no progress, I’ll be pointing you back to this blog post.

I know most of us have all grown up with this section 106 run-around – indeed some of us are in fact part of Generation Section 52 – hard-copy travelling drafts sent by post, marked up in a sequential series of colours, by pen – yes it was, despite all that, a faster process than present – but, in the words of the Blow Monkeys from that period: it doesn’t have to be this way.

Simon Ricketts, 14 June 2025

Personal views, et cetera

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