simonicity

Lessons From The Heathrow Cases

In my 15 October 2016 blog post Airports & Courts I made the obvious prediction that publication by the Secretary of State for Transport of the Airports National Policy Statement (“ANPS”) would inevitably lead to litigation. The ANPS is important because under the Planning Act 2008 it sets the policy basis for a third runway at Heathrow to the north west of the current runways (the “NWR Scheme”).

It was always going to be important for the High Court to be able to rise to the (in a non-legal sense) administrative challenge of disposing of claims efficiently and fairly. The purpose of this blog post is to look at how that was achieved (no easy feat) and what we can learn more generally from the court’s approach to the litigation

The ANPS was designated on 26 June 2018 and five claims were brought seeking to challenge that decision:

⁃ A litigant in person, Neil Spurrier (a solicitor who is a member of the Teddington Action Group)

⁃ A group comprising the London Borough of Richmond-upon-Thames, the Royal Borough of Windsor and Maidenhead, the London Borough of Hammersmith and Fulham, Greenpeace and the Mayor of London

⁃ Friends of the Earth

⁃ Plan B Earth

⁃ Heathrow Hub Limited and Runway Innovations Limited [unlike the other claimants above, these claimants argue for an extension of the current northern runway so that it can effectively operate as two separate runways. This scheme was known as the Extended Northern Runway Scheme (“the ENR Scheme”)]

Arora Holdings Limited joined as an interested party to each set of proceedings in pursuance of their case for a consolidated terminal facility to the west of the airport.

The Speaker for the House of Commons intervened in the Heathrow Hub Limited claim to object to various statements made to Parliament and Parliamentary Committees being admitted in evidence.

The first four claims raised 22 separate grounds of challenge. The fifth claim raised a further five grounds of challenge.

As Planning Liaison Judge, ie effectively lead judge within the Planning Court, Holgate J in my view has played an extremely effective role. Following a directions hearing, ahead of a subsequent pre-trial review three months later, he laid down a comprehensive set of directions on 4 October 2018 which provided for:

⁃ the first four claims to be heard at a single rolled up hearing, followed by the fifth claim

⁃ the cases to be heard by a Divisional Court (ie two or more judges, normally a High Court Judge and a Lord Justice of Appeal. In the event, the four claims were heard by a Divisional Court comprising Hickinbottom LJ and Holgate J. The fifth claim was heard immediately afterwards by a Divisional Court comprising Hickinbottom LJ, and Holgate and Marcus Smith JJ.)

⁃ video link to a second court room and (paid for jointly by the parties in agreed proportions) live searchable transcripts of each day’s proceedings

⁃ procedure to be followed in relation to expert evidence sought to be submitted in support of the first claim

⁃ statements of common ground

⁃ amended grounds of claim, with strict page limits and against the background of a request from the judge to “review the extent to which they consider that any legal grounds of challenge previously relied upon remain properly arguable in the light of the Acknowledgments of Service“, and with specific claimants leading on individual issues

⁃ bundles and skeleton arguments complying with strict page limits and other requirements

⁃ payment of security for costs by Heathrow Hub Limited in the sum of £250,000

⁃ cost capping in the other claims on Aarhus Convention principles

The main proceedings were heard over seven days in March, with the Heathrow Hub proceedings then taking a further three days (followed by written submissions). As directed by Holgate J, hearing transcripts were made publicly available.

Less than six weeks after close of the Heathrow Hub hearing, judgment was handed on 1 May 2019 in both case:

R (Spurrier & others) v Secretary of State (Divisional Court, 1 May 2019)

R (Heathrow Hub Limited & Runway Innovations Limited) v Secretary of State (Divisional Court, 1 May 2019)

The transcript of the first judgment runs to 184 pages and the transcript of the second judgment runs to 72 pages.

I am not going to summarise the judgments in this blog post but happily there is no need as the court at the same time issued a summary, which serves as a helpful précis of the claims and the court’s reasoning for rejecting each of them.

The Divisional Court found that all but six grounds were unarguable (the six being two Habitats Directive grounds from the first case, two SEA grounds from the first case and two from the second case (legitimate expectation and anti-competition). “All the other grounds were not considered not to have been arguable: the claimants may apply for permission to appeal against the Divisional Court’s decision concerning those grounds to the Court of Appeal within 7 days. The remaining six grounds were ultimately dismissed. The claimants may apply to the Divisional Court for permission to appeal within 7 days. If the Divisional Court refuses permission to appeal to the Court of Appeal, the claimants may re-apply directly to the Court of Appeal.”

The Secretary of State for Transport gave a written statement in the House of Commons on the same day, welcoming the judgments.

The two judgments will be essential reading in due course for all involved in similar challenges; the 29 grounds, and various additional preliminary points, cover a wide range of issues frequently raised in these sorts of cases and each is carefully dealt with, with some useful textbook style analysis.

In the Spurrier judgment:

– the scope for challenge of an NPS (paras 86 to 90)

⁃ relationship between the NPS and DCO process (paras 91 to 112)

⁃ extent of duty to give reasons for the policy set out in the NPS (paras 113 to 123)

⁃ consultation requirements in relation to preparation of an NPS (paras 124 to 140)

⁃ standard of review in relation to each of the grounds of challenge (paras 141 to 184)

⁃ the limited circumstances in which expert evidence is admissible in judicial review (paras 174 to 179)

⁃ whether updated information should have been taken into account (paras 201 to 209)

⁃ whether mode share targets were taken into account that were not realistically capable of being delivered (paras 210 to 219)

⁃ the relevance of the Air Quality Directive for the Secretary of State’s decision making (paras 220 to 285)

⁃ compliance with the Habitats Directive (paras 286 to 373)

⁃ compliance with the Strategic Environmental Assessment Directive (paras 374 to 502)

⁃ whether consultation was carried out with an open mind (paras 503 to 552)

⁃ whether the decision to designate the ANPS was tainted by bias (paras 553 to 557)

⁃ the relevance of the Government’s commitments to combat climate change (paras 558 to 660)

⁃ whether there was a breach of the European Convention on Human Rights (paras 661 to 665)

In the Heathrow Hub judgment:

⁃ legitimate expectation (paras 113 to 138)

⁃ use of Parliamentary material in the context of Article 9 of the Bill of Rights (paras 139 to 152)

⁃ competition law (paras 157 to 209).

As we wait to see whether any of these claims go further, I note that Arora has commenced pre application consultation ahead of submitting a draft DCO for a “consolidated terminal facility to the west of the airport, which we are calling Heathrow West, related infrastructure and changes to the nearby road and river network.” Now that is going to be another interesting story in due course. I’m not sure we have previously seen duelling DCOs…

Simon Ricketts, 4 May 2019

Personal views, et cetera

POCA Face

If you are in a position where you may be criminally liable for breach of planning control (whether justified or not – I’ve heard all the stories), you really need to be aware of the implications of the Proceeds of Crime Act 2002 and its potential influence on the approach taken by local planning authority enforcement teams. This post only gives a general overview as in my day job I do not generally act on criminal planning law matters so please take appropriate advice. The focus of this post is more on that “potential influence” issue: the raised stakes now in seeking to negotiate a practical solution to avoid enforcement and/or prosecution.

The Act provides that if the Crown Court convicts a defendant, the Crown Court (if requested by the prosecutor or if it considers it appropriate):

1. must decide whether the defendant has a criminal lifestyle;

2. if it decides that he has a criminal lifestyle, must decide whether he has benefited from his general criminal conduct;

3. if it decides that he does not have a criminal lifestyle, must decide whether he has benefited from his particular criminal conduct.

If the defendant has benefited from his general or particular criminal conduct, the court arrives at a figure as to the extent of that benefit and how much of that is “available” – determined by considering “all the free property” held by the defendant deducted only by any fines due and any preferential debts within the meaning of the Insolvency Act 1986. That amount is then payable, with the time for payment only generally being capable of extension to six months. Failure to pay is likely to result in imprisonment.

Enforcement teams within local planning authorities are well aware of the potential for POCA confiscation orders and indeed authorities are incentivised to seek them. This is not just because of their deterrent effect as regards other potential miscreants but more directly because the authority is likely to receive 37.5% of the receipts (which can then be used by the authority on a non-hypothecated basis). This is because the Home Office’s Asset Recovery Incentivisation Scheme splits the proceeds from confiscation orders as follows:

– Home Office 50%

– Prosecuting authority 18.75%

– Investigating authority 18.75%

– HM Court Service 12.5%

The local planning authority will generally be both prosecuting and investigating authority.

The case that really opened people’s eyes to the potential financial scale of confiscation orders arising from breaches of planning control was R v Del Basso (Court of Appeal, 19 May 2010). Failures to comply with a enforcement notice relating to an unauthorised parking business led to a confiscation order of £760,000.

There have been various orders made for higher amounts – big money whether you are the defendant or the cash-strapped local planning authority.

Of course, the potential for a POCA confiscation order should not taken into account by an authority in deciding whether to enforce against a potential breach of planning control, whether to prosecute and/or in determining its approach to negotiations which might potentially resolve the underlying concerns. However, in the recent cases the Court of Appeal has expressed concern at particular authorities’ behaviour.

R v The Knightland Foundation (Court of Appeal, 26 July 2018) concerned the failure to comply with an enforcement notice served by the London Borough of Islington, relating to the unauthorised use as 18 self-contained dwellings of a development which had planning permission for HMO use. An appeal against the enforcement notice had been dismissed but the owners submitted a fresh application for planning permission for change of use of the building to a hotel.

“In September 2017, a planning officer, Mr Shaxted, indicated to the respondents that the principle of an 18 room hotel seemed acceptable to him. Email traffic between the enforcement officers and members of the Planning Team that month revealed that the Enforcement Team were determined to press ahead with the prosecution and to apply for a confiscation order under the Proceeds of Crime Act 2002 (“POCA”), whatever the result of the 2016 planning application.”

“We do not have any material from the legal department or from the person who took the decision to prosecute but we do know that their decision was based on a report from Mr Kettani and Mr Jarrett. The judge found that report to be flawed and that the decision to prosecute and to continue the prosecution based on it had an improper motive namely the financial advantage to the applicant of a POCA order. Those who advised the person who took the decision to prosecute failed to take into account a relevant factor, namely, the possibility that the respondents’ position could be regularised and allowed an irrelevant factor, namely, the possibility of their obtaining a POCA order to the authority’s financial advantage, to carry significant weight. On the judge’s findings, having taken the decision to prosecute, officers of the same authority then attempted, improperly, to influence the determination of the planning application so that it would not impact adversely upon the prosecution and/or the prospects of their obtaining a POCA order. In their eyes the grant of planning permission was intrinsically linked to the prosecution and possible penalty. The judge agreed and so do we. Had planning permission been granted and the respondents’ position regularised, this could have been a significant factor in mitigation and any attempt by the respondents to persuade the court that it would not be proportionate to make a sizeable POCA order.”

Specialist planning enforcement lawyers Ivy Legal have written an interesting commentary on the judgment, querying the basis for the court’s conclusions and seeking to limit its implications for other cases.

However, by coincidence the judgment was in fact handed down at precisely the wrong moment for another local planning authority, Wokingham Borough Council, between the Crown Court hearing and handing down of judgment following an application to stay a set of criminal proceedings (within which a POCA confiscation order was contemplated) for abuse of process. These proceedings concerned non-compliance with an enforcement notice relating to unauthorised uses at the Hare Hatch Sheeplands garden centre in Berkshire.

In that case the defendants had been persuaded to withdraw an appeal against the enforcement order in order to submit an application for a certificate of lawfulness to seek to resolve the issues but then the authority determined that it could not lawfully issue the certificate and continued with its enforcement steps. The Crown Court judge set aside the proceedings for a number of reasons.

[One] “very significant area of her concern was fact that the possibility of an order being made under POCA was one of the principal factors in the decision to prosecute. She accepted that by the conclusion of the High Court proceedings a considerable amount of public money had been expended on the case and expressed sympathy for hard-pressed local authorities facing competing claims on ever-decreasing resources. WBC had the duty to police planning controls and do so in the public interest.

If the prosecution resulted in a conviction and a POCA order made, WBC would have received 37½% of the fruits of the order. In the judge’s view, this lent support to the defence submission that WBC was seeking to prosecute the Respondents to claw back public money already expended on the case. She observed that the POCA provisions apply only after conviction, and she stated that the possibility of an order should never form any part of the prosecutorial decision-making process, particularly where the prosecutor and the beneficiary are one and the same. To take into account the possibility of a financial benefit, in her view, ran contrary to an objective analysis of the merits of the case as required under the Code for Crown Prosecutors.”

The authority appealed but the Court of Appeal, in Wokingham Borough Council v Scott (Court of Appeal, 17 January 2019), upheld the judge’s ruling:

“We shall begin with what we consider to be one of the most important issues raised again in this application and addressed in Knightland, namely the role played by a POCA order in the decision to prosecute in the criminal courts.

It may come as a surprise to some that there are prosecuting authorities who may benefit financially from their decision to prosecute. It certainly came as a surprise to the members of the court in Knightland that a body given the power to prosecute should consider the possible financial advantage to itself as a relevant factor in the decision to prosecute. As the court held in Knightland, this flies in the face of the clear provisions of the Code for Crown Prosecutors, accepted by all prosecuting authorities as the applicable Code, that a prosecutor must be independent, fair and objective.

We endorse and repeat the observations of the court in Knightland. The decision to prosecute is a serious step and one that must be taken with the utmost care. We understand the argument that the making of a POCA order on conviction may act as a deterrent to offending and has the effect of extracting ill-gotten gains from offenders. This was no doubt Parliament’s intent in enacting the POCA. But where there is a potential conflict of interest, namely a financial interest in the outcome of the prosecution set against the objectivity required of a prosecutor, the prosecutor must be scrupulous in avoiding any perception of bias. The possibility of a POCA order being made in the prosecutor’s favour should play no part in the determination of the evidential and public interest test within the Code for Crown Prosecutors. We hope that this message will be relayed to all those making charging recommendations and decisions as soon as possible.

On the facts of this case, given we have heard nothing to justify the decision to prosecute at least ten of the Respondents after the injunctive relief was granted and Mr Scott was made subject to a suspended sentence of imprisonment, it raises the distinct possibility that making of a POCA order in WBC’s favour was one of the grounds for the decision to prosecute them. If it was, it should not have been.”

“We also have concerns about the approach taken by WBC to selecting those to be prosecuted. The Code for Crown Prosecutors also provides that prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction of each suspect on each charge and that in every case there is a public interest in prosecuting.”

“Finally, we add two things. First, the self-contained code in Part VII of the Town and Country Planning Act 1990 confers on local planning authorities a wide range of powers for the enforcement of planning control. It is left to their judgment which power or powers it is appropriate to use in the particular circumstances of the case in hand. It should go without saying that in deciding which power or powers will best deal with a particular breach of planning control, having regard to the public interest, an authority should always act with fairness and realism.

Secondly, nothing we have said in this judgment should be seen as casting doubt on the value of informal discussions between officers of a local planning authority and an applicant for planning permission or a landowner who appears to be responsible for a breach of planning control. This judgment and Her Honour Judge Morris’s ruling were based entirely on the particular facts of this case. It is trite that discussions between planning officers and an applicant or landowner do not ultimately bind a local planning authority to a particular position or a particular course of action, in breach of the principles set out in Reprotech (see the speech of Lord Hoffmann, at paragraphs 27 to 38). But such discussions have, and will always have, an important role to play in the planning system – so long as they are conducted in good faith and with good sense on either side.”

For an authoritative account of the case, do read the article by Scott Stemp (the barrister who acted for the successful respondents) POCA and improper planning prosecutions (9 March 2019).

No doubt POCA will continue to be highly relevant to authorities seeking to make ends meet. In researching this post I came across a flyer for a local authority training course asserting that receipts from confiscation orders can go a long way to funding the planning enforcement team within an authority. But these cases do sound a note of caution. Notwithstanding the Home Office’s “incentivisation“, the point of these orders should surely be to influence the behaviour of offenders and potential offenders, not the behaviour of local planning authorities!

Simon Ricketts, 27 April 2019

Personal views, et cetera

A Reasonable Prospect of Planning Permission: The Right To Possession Under Ground (f)

Even when it’s your day job in our planning world of imprecisely worded policies and the uncertainties of local and national politics, it can be hard enough to answer the question as to whether a proposed development project has a reasonable prospect of planning permission. But what if you are a county court judge? And when the law throws in some hypothetical assumptions?

One of the grounds under section 30(1) of the Landlord and Tenant Act 1954 which a landlord can rely on in opposing the grant to of a new tenancy to an existing business tenant is on the ground that “on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof and that he could not reasonably do so without obtaining possession of the holding.”

The courts have held that the landlord must show that (1) it has the intention to demolish or reconstruct at least a substantial part of the premises and (2) there is a reasonable prospect of being able to bring about that intention.

That “reasonable prospect” second limb of the test was the subject of Warwickshire Aviation Limited and others v Littler Investments Limited (Birss J, 25 March 2019) and I will deal with that in a moment.

However, first to note that the Supreme Court late last year caused a minor earthquake in terms of how the first limb is to be interpreted, namely whether the landlord has a sufficient “intention“.

For a long time now it has been the practice of some landlords to come up with demolition or redevelopment schemes just to satisfy the test, schemes which they are prepared to undertake to the court that they will carry out (an undertaking which they will not need to give if, as has been usual, in the face of an evidenced intention the tenant resigns itself to defeat and cuts a deal – in which case the scheme can be abandoned).

As a result of S Franses Limited v The Cavendish Hotel (London) Limited (Supreme Court, 5 December 2018), that practice has been rendered much more difficult.

The case concerned a textiles dealership and consultancy in Jermyn Street, Mayfair, comprising the ground floor and basement of what is otherwise the Cavendish Hotel. It was refused a new tenancy on the basis that its landlord “intended” to carry out an absurd set of works, arrived at because of the difficulties in obtaining planning permission for earlier proposals to create new retail units. The landlord ended up proposing a set of works that did not require planning permission. First, the proposed “internal wall dividing the two proposed retail units stopped two metres short of the shopfront at ground floor level; and there was no external door to one of the units, so that it could be accessed only through the other. Secondly, the new scheme added more extensive internal works, many of which were objectively useless. They included the artificial lowering of part of the basement floor slab, in a way which would achieve nothing other than the creation of an impractical stepped floor in one of the units; the repositioning of smoke vents for no reason; and the demolition of an internal wall at ground floor level followed by its immediate replacement with a similar wall in the same place. The cost of the scheme was estimated by the landlord at £776,707 excluding VAT, in addition to statutory compensation of £324,000 payable to the tenant.

It is common ground that the proposed works had no practical utility. This was because, although the works themselves required no planning permission, it would be impossible to make any use of them at all without planning permission for change of use, which the landlord did not intend to seek. Planning permission would have been required because the scheme involved combining premises permitted for hotel use with premises permitted for sui generis use. In addition, one of the retail units was unusable without an entrance from the street. In accordance with a common practice in this field, the landlord supported its evidence of intention with a written undertaking to the court to carry out the works if a new tenancy was refused. The sole purpose of the works was to obtain vacant possession. The landlord’s evidence was that it was prepared to run the risk that the premises occupied by the tenant would be rendered unusable “in order to secure its objective of undertaking [the third scheme] and thereby remove the claimant from the premises.” The landlord submitted that “the works are thoroughly intended because they are a way of obtaining possession. That is all there is to it.” As the landlord’s principal witness put it, the third scheme was “designed purely for the purpose of satisfying ground (f).”

The landlord argued that its motives were irrelevant – all that mattered was its intention to carry out the works. However, the Supreme Court disagreed.

Lord Sumption: “the landlord’s intention to demolish or reconstruct the premises must exist independently of the tenant’s statutory claim to a new tenancy, so that the tenant’s right of occupation under a new lease would serve to obstruct it. The landlord’s intention to carry out the works cannot therefore be conditional on whether the tenant chooses to assert his claim to a new tenancy and to persist in that claim. The acid test is whether the landlord would intend to do the same works if the tenant left voluntarily.”

In consequence in future cases there will surely be a greater need for expert evidence in county court proceedings as to why a particular scheme of works has some commercial utility to the landlord other than just as a basis for a ground (f) opposition to a new tenancy.

Back to the second limb and the Warwickshire Aviation case. The case had started in the county court, with seven separate aviation-related tenants of premises at Wellesbourne Mountford Airfield all faced with ground (f) opposition by their landlord to the grant of new tenancies on the basis that it intended to demolish their premises. There was a trial of the preliminary issue as to whether ground (f) had been made out. Planning permission for demolition would be required because permitted development rights had been taken away by way of an Article 4 direction. The landlord wished to bring to an end any aviation use on the airfield and instead to promote the site for residential development. The central issue at the four day trial was whether, against the planning policy background, there was a reasonable prospect that the local planning authority would grant planning permission for demolition, in the face of policies which included support for “enhancement of the established flying functions and aviation related facilities” at the airfield. Planning consultants gave expert evidence for the two sides, with very different conclusions.

One complication was the necessary hypothetical assumption that at the time of the notional planning application for demolition the tenants would have vacated and the current aviation related uses would have ceased. Given the landlord’s objectives, the county court judge found “there appears on legitimate and substantial economic/commercial grounds to be no realistic prospect, if consent for demolition was refused, of the Defendant re-instating aviation related use of the buildings. That would be a material consideration for the decision maker to have regard to” in the light of the relevant policies and therefore he concluded that there was a reasonable prospect that planning permission would be granted.

On appeal from the Birmingham County Court to the High Court, the tenants argued that “in planning terms the landlord’s future intentions are irrelevant and do not amount to a “material consideration” within s70(2) of the TCPA and s38(2) of the PACP. They argue while the land owner may well have sound commercial reasons for wanting to increase the profitability of its landholding and prevent further aviation use, those are quintessentially private rather than public interests.”

The judge on appeal rejected the argument. The relevant policy “rather than requiring developers to retain and support existing aviation related facilities at the airfield regardless of the circumstances, only states that developers are expected to contribute to the achievement of that objective “where it is appropriate and reasonable for them to do so”. As Littler submits, those words are wide enough to allow a developer to tell the decision maker that it does not intend to return the buildings to their previous aviation related uses for commercial reasons. The decision maker will assess if that stance is appropriate and reasonable in the circumstances. If the reasons are found to be genuine (as here), in that case it would be open to the decision maker to accept the stance of the developer. The result could well be that it would not be appropriate and reasonable to expect the developer to contribute to the achievement of the objective of retaining aviation related uses at Wellesbourne in that instance. Therefore the judge was entitled to approach the matter in the way he did.

Contrary to the […] appellants’ submission, this does not mean that the entire planning system can be subverted or frustrated because a landowner would always be able to succeed in obtaining planning permission for demolition or change of use simply by asserting an intention not to continue its existing use. That submission ignores the discretion in the relevant planning policy, ignores the fact that there were a range of other uses available not requiring planning permission (this is addressed in Ground C below) and ignores the fact that the judge specifically considered whether the reasons given by Littler were substantial and genuine.”

The appeal judge agreed with the county court judge that policies in a recently adopted neighbourhood plan did not make a significant difference to the issues.

Finally the appeal judge rejected the submission that the judge at first instance had applied too stringent a test in assessing the likelihood of aviation related uses resuming if permission for demolition were to be refused.

Regardless of what the correct answer actually was on the evidence, one can see the difficulties inherent in determining the hypothetical question on which the case turned. I’m no landlord and tenant lawyer but isn’t “reasonable prospect” just setting the bar too low? Of course the landlord is going to be dead-set against a continuation of the relevant use – that’s why it has gone to the expense of opposing a new tenancy. If that is relevant, doesn’t that leave the landlord holding all the cards? Or is the reality that business tenants have to accept that their right to a new tenancy will always be precarious? Another issue for the Supreme Court one day perhaps?

Landlord and tenant lawyers, you are welcome to set me straight on any of this.

Simon Ricketts, 20 April 2019

Personal views, et cetera

Calculating Education Contributions

“We class schools, you see, into four grades: Leading School, First-rate School, Good School, and School. Frankly,” said Mr Levy, “School is pretty bad…”

(Evelyn Waugh, Decline and Fall)

The government has been fine-tuning its guidance as to the extent to which developers in England should be required to fund education provision.

Serendipitously for this blog post, the High Court last month handed down judgment in Thompson v Conwy County Borough Council (Dove J, 26 March 2019). Not only does the case provide an introduction to some of the existing uncertainties, but, as is clear from Dove J’s introduction, there is a link to one of the greatest comic literary depictions of a private school:

“The site in question in relation to these proceedings is the Fair View Inn in Llanddulas. It appears that Evelyn Waugh was at one time a patron of the Fair View Inn when he taught at a nearby preparatory school. The Fair View Inn features as “Mrs Robert’s Pub” both in his diaries and also in his first novel, Decline and Fall.”

Remember that section in Decline and Fall, where Paul Pennyfeather gets sent to Llanabba Castle School in north Wales to teach subjects he knows nothing about, and his trips to Mrs Roberts’ pub with Captain Grimes? (If not, do put this blog post down and pick up D&F – much more entertaining).

One of the grounds of challenge to the grant of planning permission for residential development on the site of the Inn was that the planning committee, in approving the proposal on the basis of a commuted sum towards education provision, “were misled by inaccurate information being provided in relation to education school capacity.” It was submitted by the claimant (a representative of the campaign group Passionate about Llanddulas) that “although members were advised that the commuted sum would be used to improve existing school facilities in the near future, including the construction of a new school, the position […] is significantly different. [The claimant] contends that the position in truth is that the school in Llanddulas will remain over capacity on the basis that there is no guarantee at present that any new school would be secured through the provision of a commuted sum for education“.

The local school is indeed already oversubscribed. The education officer sought a financial contribution of £17,009, towards the costs of a new school in due course, based on approximately two additional nursery and primary pupils being added to the local school population. An internal email from the education officer was disclosed: “… we will be building a new school there in less than 5 years and the money will come in handy!”

The claimant sought to rely on correspondence from the same officer that post-dated the permission and which set out the steps that would need to be taken to secure Welsh Government funding for a new school, the outcome of which was uncertain notwithstanding confidence expressed by the officer.

Dove J unsurprisingly took the position that “the question of whether or not officers misled members should be considered on the basis of the material as known to the officers at the time of the Committee report, rather than taking account of matters that arose or came to light after the decision was reached.”

But in any event he held that what was later set out by the officer in correspondence was “not in substance different from the succinct email he sent to Ms Roberts earlier in the year, namely that the Education Section of the Defendant has it in mind to use the commuted sum towards the redevelopment of the school in Llanddulas within five years. In my view it would subject the advice that the members were given to an illegitimate and overly forensic scrutiny to suggest that it was necessary also to spell out the further statutory and administrative processes which would be required before the new school would be open for use. The issue about which members were being advised was the question of whether or not there was a legitimate objective for the commuted sum in respect of education. The advice which the members were provided with accurately reflected the view of the Education Section given by Mr Jones and did not in my judgment mislead them. I am therefore satisfied on the basis of the information which has become available since the grant of permission that the members were not misled. Thus, even were account taken of material provided after the decision the position remains the same.”

No point appears to have been expressly taken as to whether the contribution failed the regulation 122(2) test within the CIL Regulations:

“A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—

(a) necessary to make the development acceptable in planning terms;

(b) directly related to the development; and

(c) irly and reasonably related in scale and kind to the development.”

Nor whether it offended the (soon to be abolished) pooling restriction in regulation 123.

Whilst the permission thereby survived the campaign group’s legal challenge, when you step back for a moment, the basis for requirements for contributions towards education provision, and the expensive uncertainty which developers and residents in new developments are expected to put up with, is faintly bizarre. New homes may contain children. Those children would need schooling somewhere regardless of the particular development. And yet, an application for planning permission for residential development is an opportunity that the Government pretty much requires local authorities to take in order to reduce the financial burden on the state and on direct taxation to secure financial contributions towards new and expanded schools. That cost reduces the financial viability of schemes, thereby reducing the amount affordable housing that the developer can subsidise (I’ve commented before on that logical disconnect conveniently ignored by successive Governments looking to minimise headline tax rates – so building market housing increases the amount of subsidised affordable housing that needs to be provided does it?). And, as in that Llanddulas example, where development proceeds on the basis of a financial contribution to something somewhere in the future, the developer and those who end up living in the development are at the whim of demographics and the education department’s forward planning and funds-securing nous as to whether, and where, necessary school places will become available. Rarely is the lack of available school places a reason to refuse planning permission.

But this is the policy environment.

Relevant passages in the Government’s Planning Practice Guidance were amended on 15 March 2019:

“What funding is available for education?

Government provides funding to local authorities for the provision of new school places, based on forecast shortfalls in school capacity. There is also a central programme for the delivery of new free schools.

Funding is reduced however to take account of developer contributions, to avoid double funding of new school places. Government funding and delivery programmes do not replace the requirement for developer contributions in principle.

Plan makers and local authorities for education should therefore agree the most appropriate developer funding mechanisms for education, assessing the extent to which developments should be required to mitigate their direct impacts.

Paragraph: 007 Reference ID: 23b-007-20190315

Revision date: 15 03 2019

What contributions are required towards education?

Plans should support the efficient and timely creation, expansion and alteration of high-quality schools. Plans should set out the contributions expected from development. This should include contributions needed for education, based on known pupil yields from all homes where children live, along with other types of infrastructure including affordable housing.

Plan makers and decision makers should consider existing or planned/committed school capacity and whether it is sufficient to accommodate proposed development within the relevant school place planning areas. Developer contributions towards additional capacity may be required and if so this requirement should be set out in the plan. Requirements should include all school phases age 0-19 years, special educational needs (which could involve greater travel distances), and both temporary and permanent needs where relevant (such as school transport costs and temporary school provision before a permanent new school opens).

Plan makers should also consider whether pupils from planned development are likely to attend schools outside of the plan area and whether developer contributions may be required to expand schools outside of the area.

When local authorities forward-fund school places in advance of developer contributions being received, those contributions remain necessary as mitigation for the development.

Paragraph: 008 Reference ID: 23b-008-20190315

Revision date: 15 03 2019“

The Department for Education published some detailed guidance for local authorities on 11 April 2019 to help them in securing developer contributions for education and on the approach to education provision in garden communities.

The guidance purports not to “advise the construction/development industry on its duties or responsibilities in paying for infrastructure” or to replace or override “policy/guidance produced by other government departments“. However, if you are negotiating section 106 agreement obligations, it is essential reading.

Securing developer contributions for education sets out the following principles:

” • Housing development should mitigate its impact on community infrastructure, including schools;

• Pupil yield factors should be based on up-to-date evidence from recent housing developments;

• Developer contributions towards new school places should provide both funding for construction and land where applicable, subject to viability assessment when strategic plans are prepared and using up-to-date cost information;

• The early delivery of new schools within strategic developments should be supported where it would not undermine the viability of the school, or of existing schools in the area.”

Planning obligations should “allow enough time for developer contributions to be spent (often this is 10 years, or no time limit is specified“. But personally, I would push against such long timescales save where specifically justified!

In terms of the inter-relationship between government and developer funding:

“5. Central government basic need grant, the DfE free schools programme and other capital funding do not negate housing developers’ responsibility to mitigate the impact of their development on education. When the DfE free schools programme is delivering a new school for a development, we expect the developer to make an appropriate contribution to the cost of the project, allowing DfE to secure the school site on a peppercorn basis and make use of developer contributions towards construction. National Planning Practice Guidance explains how local planning authorities should account for development viability when planning for the provision of infrastructure.2 There should be an initial assumption that both land and funding for construction will be provided for new schools planned within housing developments

6. While basic need funding can be used for new school places that are required due to housing development, we would expect this to be the minimum amount necessary to maintain development viability, having taken into account all infrastructure requirements Where you have a reasonable expectation of developer funding being received for certain school places,3 and you have declared this in your SCAP return (or plan to do so), then basic need funding should not be considered available for those school places other than as forward funding to be reimbursed by developer contributions later.

7. There are other options besides basic need grant for forward-funding school places, including the use of local authority borrowing powers where necessary. Where developer contributions have been secured through a planning obligation, you can recoup the borrowing costs from developer contributions later, provided these costs have been incurred as a result of housing growth. Local authorities can bid for funding under government grant programmes such as the Housing Infrastructure Fund (HIF) as they become available, while developers delivering schools directly as an ‘in kind’ contribution may be eligible for loan funding from DfE or Homes England, allowing a new school to be delivered at an earlier stage in the development than would have been possible otherwise.”

“Pupil yield factors should be based on up-to-date evidence from recent local housing developments“. DfE is working on a detailed methodology.

All new primary schools are now expected to include a nursery. There must be sufficient primary and secondary education up to the age of 19 as well as special educational needs and disabilities (SEN) provision.

The assumed cost of mainstream school places should be based on national average costs published by the DfE, adjusted to reflect regional costs differences. The cost of early years provision should be assumed as the same as primary provision. Contributions to special school provision should be set at four times the cost of a mainstream school place.

All temporary and permanent education needs should be properly addressed, including school transport costs and temporary school provision. Where appropriate, both a preferred and “contingency” school expansion project should be identified in a section 106 planning obligation.

“23. You may wish to safeguard additional land when new schools within development sites are being planned, to allow for anticipated future expansion or the reconfiguration of schools to create a single site. ‘Future-proofing’ can sometimes be achieved informally through a site layout that places open space adjacent to a school site. Where justified by forecast need for school places, additional land can be designated specifically for education use and made available for purchase by the local authority within an agreed timescale, after which the land may be developed for other uses.

24. While developers can only be expected to provide free land to meet the education need from their development, the allocation of additional land should also preclude alternative uses, enabling you to acquire the site at an appropriate cost. Land equalisation approaches can be used in multi-phase developments to ensure the development ‘hosting’ a new school (and any additional safeguarded land) is not disadvantaged. Nevertheless, the market price for the land will depend on its permissible uses. Land allocated for educational use in a local plan would usually have no prospect of achieving planning permission for any other uses. Independent land valuation may be required to establish an acquisition cost. National Planning Practice Guidance provides advice on land valuation for the purposes of viability assessment.”

(There are elements of paragraphs 23 and 24 with which I would take issue or which may be too generally expressed. For example, if the reservation of additional land for a school (or for further forms of entry to an existing school) and the need for those additional school places is not generated by the development within which the land is situated, why should that land not be acquired at the development value it would otherwise have enjoyed?).

The guidance annexes advice on compliance with state aid and public procurement legislation.

There is specific guidance on strategic developments and new settlements (with more detailed separate guidance on garden communities), including on multiple phase school provision, the timing of provision and use of viability review mechanisms where the initial education contribution has been reduced on viability grounds.

Whether your education contribution is in the low tens of thousands of pounds as per the Llanddulas case or in the low tens of millions of pounds, as may be the case with a new settlement, arriving at efficient, practical solutions is key. Travelling optimistically, let us hope that the new guidance will assist in arriving at those solutions, rather than encouraging authorities to add to the current list of requests.

Simon Ricketts, 13 April 2019

Personal views, et cetera

Beauty

How can the planning system seek to achieve “beautiful” buildings and places?

What is beauty? How do you arrive at objectivity in matters largely of subjective judgment? Is the customer always right (and who is the customer)?

These thoughts were prompted this week by a few things:

⁃ The resolution of the Corporation of London’s Planning and Transportation Committee on 2 April 2019 to grant planning permission for the Tulip following officers’ recommendations. The application will now be referred to the Mayor who will need to decide whether to intervene (whether by call in or by directing refusal). His stage 1 report dated 14 January 2019 set out his initial concerns.

⁃Obituaries of Bill Heine, responsible for the Headington shark. Is there any inspector’s decision letter with a better passage than this (when allowing an appeal against an enforcement notice)?

“It is not in dispute that this is a large and prominent feature. That was the intention, but the intention of the appellant and the artist is not an issue as far as planning permission is concerned. The case should be decided on its planning merits, not by resorting to “utilitarianism”, in the sense of the greatest good to the greatest number. And it is necessary to consider the relationship between the shark and its setting…. In this case it is not in dispute that the shark is not in harmony with its surroundings, but then it is not intended to be in harmony with them. The basic facts are there for almost all to see. Into this archetypal urban setting crashes (almost literally) the shark. The contrast is deliberate … and, in this sense, the work is quite specific to its setting. As a “work of art” the sculpture (“Untitled 1986”) would be “read” quite differently in, say, an art gallery or on another site. An incongruous object can become accepted as a landmark after a time, becoming well known, even well loved in the process. Something of this sort seems to have happened, for many people, to the so-called “Oxford shark”. The Council is understandably concerned about precedent here. The first concern is simple: proliferation with sharks (and Heaven knows what else) crashing through roofs all over the City. This fear is exaggerated. In the five years since the shark was erected, no other examples have occurred. Only very recently has there been a proposal for twin baby sharks in the Iffley Road. But any system of control must make some small place for the dynamic, the unexpected, the downright quirky. I therefore recommend that the Headington shark be allowed to remain.”

⁃ a nagging awareness that I probably need to cover the Government’s “Building Better, Building Beautiful” initiative in one of these blog posts.

Section 12 of the July 2018 NPPF sought to give more weight, in plan making and decision taking, to design considerations – see MHCLG’s press release Government’s new planning rulebook to deliver more quality, well-designed homes (24 July 2018) and there is more detailed guidance in the PPG. The press release, as with so many Government announcements, focused on the relevance of the policy changes to the construction of new homes.

Is poor design one reason why new development is often not accepted by communities? That’s the thesis leading to James Brokenshire’s announcement on 3 November 2018 of the Building Better Building Beautiful Commission, chaired by Professor Sir Roger Scruton.

The Commission has three aims:

1. To promote better design and style of homes, villages, towns and high streets, to reflect what communities want, building on the knowledge and tradition of what they know works for their area.

2. To explore how new settlements can be developed with greater community consent.

3. To make the planning system work in support of better design and style, not against it.

The commission has five commissioners:

• Sir Roger Scruton (Chair)

• Gail Mayhew

• Mary Parsons

• Nicholas Boys Smith

• Kim Wilkie

It also has an impressive list of “specialist advisors”:

• Stephen Stone, Executive Chairman of Crest Nicholson

• Sunand Prasad, Senior Partner and co-founder of Penoyre & Prasad and past President of the RIBA

• Ben Bolgar, Senior Director of Prince’s Foundation

• Dame Fiona Reynolds DBE, Master of Emmanuel College, Cambridge

• Adrian Penfold OBE, Advisor in Planning and Public Affairs

• Peter Studdert, Chair of Quality Review Panels for the LLDC and LB of Haringey

• Patrick James, Founding Director of The Landscape Agency

• Paul Monaghan, Director of AHMM and Design Council Trustee

• Yolande Barnes, Professor of Real Estate at UCL

The deadline for the Commission’s call for evidence is 31 May 2019.

This “Building Beautiful” initiative, ironically as with the resi PD rights initiative where there no controls over matters of aesthetics and design, has its roots in think tank the Policy Exchange. The Policy Exchange published Building More, Building Beautiful: How design and style can unlock the housing crisis by Jack Airey, Sir Roger Scruton and Sir Robin Wales, and with a foreword by James Brokenshire, in July 2018. It published a collection of essays on the design, style and economics of the built environment Building Beautiful in January 2019.

Stating the position neutrally, it is right to record that the initiative, and Scruton, have their detractors, such as Robert Bevan in the London Evening Standard – I wouldn’t build my dream home in joyless, moralistic Scrutopia (25 January 2019):

“The beauty commission has emerged from a report called Building More, Building Beautiful, by Policy Exchange, a Right-of-centre think tank. One of its three authors was Scruton himself. From its cover onwards — a drawing of Georgian houses that gets the historical details all wrong — it has been many decades since a more ludicrous or ignorant report on architecture was published.”

What on earth is going to come from this process?

The visual appearance of new homes is a curious thing. Largely a private sector product with paying consumers, why are we the public often not satisfied with what the market produces, even when the direct customers appear to be?

I won’t reveal the house builder, but there was a piece this week on the BBC website about a couple who had bought their “dream home” but were dissatisfied with a number of defects in its construction. I looked at the photo below with its wrong proportions, verge/garden, largely blank side flank and clay coloured rendering, and initially wondered how a such an ugly, presumably not cheap, house could be anyone’s dream. But beauty is in the eye of the beholder – it’s a new detached home with garden, and home ownership has been promoted by successive governments as to what we should aspire.

(Photo: BBC)

The aesthetic appearance of a new car is probably the only element of its design or function that is not subject to prescriptive regulation and requirements for testing. But it is plainly critical for car makers to invest in the visual appearance of the product, so as to attract the consumer for whom the car will be an extension of the personality that he or or she wishes to express, emphasising qualities such as speed or ruggedness, elegance or urban quirkiness.

So why is the new housing market apparently so different? Is there a lack of choice such that we’re still at Model T Ford “any style as long as it looks like a child’s drawing of a detached house and garden“? Or is it the case, more likely, that the products that we see are those that have been proven to sell? In which case, aren’t there dangers in trying to funnel house builders towards a different approach?

If different products would make it more likely for permission to be obtained and for homes to be built and sold, why hasn’t this been achieved by operation of the market? What is the overlap with the Letwin “delivery” initiative (see my 3 November 2018 blog post Oliver’s Twist: Letwin’s Proposals For Large Housing Sites)?

It is all very well for the Commission’s first aim to refer to local styles of building but where is the architectural integrity in adopting a particular local building style as pastiche simply to gain community buy-in? Surely beauty simply comes from producing well-proportioned good quality buildings with a form that reflects their function (can we ban fake chimneys?) and with as much attention paid to space and landscape as built form? Do we really need the Scuton Commission or indeed any more prescriptive planning policies? Simply assess schemes against those principles, at outline and reserved matters stages, and make sure that there is no room for post-permission dumbing down. And ensure that there is a properly functioning, competitive house building market. Start with getting the market right, not the detailed design requirements (only local stone here, even though it has to be shipped in from abroad).

After all, whilst planners love to arrive at quasi-objective ways of assessing largely subjective matters (needs must, I suppose) and the tools for doing that are getting ever better (for instance, primarily in an urban context, vu.city and Cityscape Digital), save where particularly justified surely we should restrict the role of the state in telling us what we are going to find beautiful? Heritage decisions based on assessment of architectural quality are difficult. Decisions in relation to NPPF paragraph 79(e) (the green light for proposed isolated homes in the countryside where the design is of “exceptional quality” in that it is “truly outstanding or innovative, reflecting the highest standards in architecture..”) are difficult. It is quite something to appoint a planning committee or inspector as cultural arbiter on our behalf and to expect their decisions not to be underpinned, consciously or unconsciously, by political or social priorities and assumptions.

I still like that shark. Jury out on Tulip.

Simon Ricketts, 6 April 2019

Personal views, et cetera

Biodiversity Net Gain: A Ladybird Guide

Whoops I did it again: agreed to give a talk on a subject before researching it. These are no more than my notes but I hope the links at least are useful.

The Chancellor announced in his Spring Statement that “following consultation, the government will use the forthcoming Environment Bill to mandate biodiversity net gain for development in England, ensuring that the delivery of much-needed infrastructure and housing is not at the expense of vital biodiversity.”

A DEFRA blog post was published the same day, quoting Michael Gove:

“Mandating biodiversity net gain will ensure wildlife thrives at the same time as addressing the need to build new homes. Whether it’s through planting more trees or creating green corridors, developers will now be required to place the environment at the heart of new developments.

This new approach will not only improve habitats for wildlife and create healthier places to live and work, but is central in our ambition to leave the environment in a better state for future generations.”

This is what we have committed to do in any event so as to comply with our obligations under the UN Convention on Biological Diversity which we ratified in 1994. In order to seek to meet the Aichi 2015 – 2020 biodiversity targets the UK has committed as one of its “priority actions“, that it will, “through reforms of the planning system, take a strategic approach to planning for nature within and across local areas. This approach will guide development to the best locations, encourage greener design and enable development to enhance natural networks. We will retain the protection and improvement of the natural environment as core objectives of the planning system.”

The UK’s Joint Committee for Nature Conservation reported on progress in its 6th National Report to the Convention on Biological Diversity (January 2019), submitted to the Convention’s Secretariat on 11 March 2019.

The principle of requiring biodiversity net gain is supported not just by environmental groups but by development industry bodies – see for instance UK Green Building Council open letter dated 1 March 2019 to the Chancellor:

“We […] look to the Government to establish the long-term legal framework needed to fulfil its pledge to “leave the environment in a better state than we found it” – and the proposed Environment Bill is the opportunity to do so. The Bill can provide the foundation for a shift from an economy in which business aims to limit its impact on the environment towards an economy that is restorative and regenerative by design.

We are calling on the Government to use the Bill to set legally binding targets for the achievement of environmental objectives – including tackling biodiversity loss, improving water and air quality and cutting down resource use and waste. By setting binding targets, the Government can give the construction and property sector the confidence and certainty we need to help drive nature’s recovery, and set a level playing field that enables businesses who do the right thing to be rewarded.”

The letter was signed by representatives of the following organisations (a pretty good list!):

Argent (Property Development) Services LLP

Atelier Ten

BAM Construct UK

BAM Nuttall Ltd

Barratt Developments Plc

Bennetts Associates

Berkeley Group Holdings

BRE

British Land

Clarion Housing Group

Colliers International

GS8

Hoare Lea

Interface

JLL

Kingspan Insulation Ltd

Lendlease

Linkcity

Redrow plc

Telford Homes Plc

William Hare Ltd

Willmott Dixon

WSP

So what lies ahead? This is an initiative which has real momentum, but requires careful implementation if it is not on the one hand to be adding unreasonably to the burden of applicants and authorities (in terms of what further documentation and analysis is required and/or in terms of placing the hurdle for an acceptable scheme impossibly high) or on the other hand to be so lax as to be providing nothing over and over present policy requirements.

DEFRA published on 2 December 2018 its Net gain: consultation proposals document, giving a deadline for responses of 10 February 2019.

The document defines net gain as follows:

“Net gain is an approach to development that aims to leave the natural environment in a measurably better state than beforehand. This means protecting existing habitats and ensuring that lost or degraded environmental features are compensated for by restoring or creating environmental features that are of greater value to wildlife and people. It does not change the fact that losses should be avoided where possible, a key part of adhering to a core environmental planning principle called the mitigation hierarchy. Net gain is not a new concept. Several countries around the world have already adopted biodiversity net gain policies and net gain for biodiversity is already supported through national planning policy.”

A footnote to passage notes:

“NPPF paragraph 170 states that planning policies and decisions should minimise impacts on and provide net gains for biodiversity; paragraph 174 requires plans to pursue opportunities for securing measurable net gains; paragraph 175 requires planning decisions to encourage biodiversity improvements in and around developments and paragraph 118 states that the planning system should take opportunities to secure net environmental gains“.

The consultation document is a detailed document, but this inset within it summarises the proposed role of biodiversity net gain in the planning system:

“Our proposal is that biodiversity net gain will be delivered within the existing planning and development process. This summary is illustrated in the infographic that follows.

When assessing potential development sites, habitat surveys will identify habitats and their condition as is already done for much development. Surveys help identify opportunities for enhancement as part of green infrastructure as well as possible constraints.

Development design will proceed as normal, but better informed by figures for biodiversity losses and gains. A standard biodiversity metric will be populated with habitat information from the site assessment and landscape plans. This will help demonstrate at an early stage that harm has been avoided as far as possible and that new green infrastructure will be of good environmental quality. The metric could also help to anticipate the costs of achieving net gain to factor these into land purchase where possible. No existing planning protection for the environment will be weakened and the principle of avoiding harm first (known as the “mitigation hierarchy”) will continue to ensure that preventing damage to nature will always be prioritised, wherever possible.

If net gain cannot be achieved on site, the metric would provide the right information to discuss habitat enhancement or creation with local providers or with the local authority during pre-application negotiations. The tariff rate would offer a guide for the upper limit of habitat compensation costs, alongside information from growing habitat creation markets.

When preparing local plans, local authorities are able to identify opportunities for habitat improvement that would benefit local people and support nature recovery. They would be able to choose to bring improvement sites forward themselves or work with other providers.

When developers and local planning authorities are consulting with the local community prior to submitting a planning application, it will be possible to use biodiversity net gain figures and habitat enhancement measures to explain the benefits and costs of a development proposal more transparently.

With clearer expectations, developers will be able to submit planning applications with greater confidence that proposals can be supported on biodiversity grounds.

For local authorities, transparent figures for biodiversity losses and gains can be quickly checked and provide confidence that impacts will be positive. Figures will also indicate the environmental quality of green infrastructure as part of development design.

As part of the planning permission, developers would sign up to predictable conditions, obligations or a tariff payment to secure biodiversity net gain. The availability of a tariff would prevent planning permission from being delayed by net gain requirements, and local authorities will be able to demonstrate that positive impacts to help improve the environment for local communities have been secured.”

The full list of the 45 consultation questions within the document demonstrates the potential complexity of what is proposed:

From a practical perspective, key issues are plainly going to include

⁃ establishing a robust ‘biodiversity unit’ metric

⁃ determining what would the required level of improvement (where does 10% come from?)

⁃ determining the circumstances in which a tariff or other off-site arrangement is appropriate and calculating its quantum

⁃ arriving at practical delivery mechanisms, by way of planning conditions, section 106 obligations and/or CIL, that meet relevant legal and policy requirements.

What I would love to understand is really how “mandated” the proposed requirements will be in practice. Does the Government envisage that the detailed regime can be bolted into the existing planning system by way of amendments to the PPG (which seems implausible given the potential nature of the tariff measures in particular) or will the Environment Bill be prescriptive in terms of what precisely will be required?

DEFRA is apparently due to respond to the consultation shortly, with the Bill likely to be published before the summer recess but, dear reader from the near future, you are possibly looking back at this blog post thinking “well that didn’t age well…”

Simon Ricketts, 30 March 2019

Personal views, et cetera

We Have Standards

Will we soon see minimum space standards for PD residential conversions? There was a hint in that James Brokenshire written statement on 13 March 2019.

I set out below in full the parts of his statement relating to PD resi and I have emboldened the relevant sentence:

“The consultation, Planning Reform: Supporting the high street and increasing the delivery of new homes closed on 14 January 2019. As confirmed in the Spring Statement it is our intention to bring forward a range of reforms. To support the high street we intend to introduce additional flexibilities for businesses. This will be to amend the shops use class to ensure it captures current and future retail models, which will include clarification on the ability of (A) use classes to diversify and incorporate ancillary uses without undermining the amenity of the area, to introduce a new permitted development right to allow shops (A1), financial and professional services (A2), hot food takeaways (A5), betting shops, pay day loan shop and launderettes to change use to an office (B1) and to allow hot food takeaways (A5) to change to residential use (C3). Additionally, to give businesses sufficient time to test the market with innovative business ideas we will extend the existing right that allows the temporary change of use of buildings from 2 to 3 years and enable more community uses to take advantage of this temporary right, enabling such premises to more easily locate on the high street. I will also shortly publish “Better Planning for High Streets”. This will set out tools to support local planning authorities in reshaping their high streets to create prosperous communities, particularly through the use of compulsory purchase, local development orders and other innovative tools.

We will take forward a permitted development right to extend upwards certain existing buildings in commercial and residential use to deliver additional homes, engaging with interested parties on design and technical details. We would want any right to deliver new homes to respect the design of the existing streetscape, while ensuring that the amenity of neighbours is considered. We will also make permanent the time-limited right to build larger single storey rear extensions to dwellinghouses and to introduce a proportionate fee. I do not intend to extend the time-limited right for change of use from storage to residential. This right will lapse on 10 June 2019. Alongside I intend to review permitted development rights for conversion of buildings to residential use in respect of the quality standard of homes delivered. We will continue to consider the design of a permitted development right to allow commercial buildings to be demolished and replaced with homes. We will also develop a ‘Future Homes Standard’ for all new homes through a consultation in 2019 with a view, subject to consultation, to introducing the standard by 2025.

[…]

I intend to implement an immediate package of permitted development right measures in the spring, with the more complex matters, including on upward extensions, covered in a further package of regulations in the autumn.”

The lack of minimum space standards in relation to residential conversions secured under permitted development rights is surely a significant flaw in the GPDO and the nature of some of the schemes that have come forward has certainly provided easy pickings for the press:

⁃ Is Harlow being used to ‘socially cleanse’ London? (Guardian, 16 March 2019)

⁃ Will these be the worst new ‘rabbit hutch’ flats in Britain? (Guardian, 2 March 2019)

This is a small part of the development industry but these stories are reputationally terrible.

The change would surely be pretty straight forward: either to require that all PD schemes where prior approval has not been obtained by a transitional date should comply with the nationally described space standard or perhaps only to require this in areas where the standard has been adopted in an up to date local plan.

The standard itself is a bit of an oddity. It was first announced by Eric Pickles in March 2015 as part of what was basically a deregulation package – a series of optional technical standards for local authorities to apply, in lieu of authorities not being able any longer to include in their plans “any additional local technical standards or requirements relating to the construction, internal layout or performance of new dwelling, such as for instance the code for sustainable homes“. The standard’s curious wording (“described” not “prescribed“) is because the present function of the standard is for it to be able to be adopted by local planning authorities in their plans “where the need for an internal space standard can be justified” (NPPF, footnote 27), so that it becomes a policy requirement against which planning applications are assessed. It is not a legal requirement, and only relevant in areas where it has been adopted as policy.

In areas which have adopted the standard it is particularly egregious that PD schemes can simply bypass it. (It is equally egregious that PD schemes are also able to bypass the affordable housing and other policy requirements that are triggered by residential conversions requiring planning permission – see the open letter from Shelter and the Local Government Association to the Secretary of State dated 21 January 2019 – and I have directly experienced some authorities then wrongly try secure those requirements by the back door when an application for planning permission for re-cladding or extra floors of development is sought).

The Government indicated in its February 2017 housing green paper that the standard was to be reviewed, to allow some greater flexibility in its operation:

“1.55 The use of minimum space standards for new development is seen as an important tool in delivering quality family homes. However the Government is concerned that a one size fits all approach may not reflect the needs and aspirations of a wider range of households. For example, despite being highly desirable, many traditional mews houses could not be built under today’s standards. We also want
to make sure the standards do not rule out new approaches to meeting demand, building on the high quality compact living model of developers such as Pocket Homes. The Government will review the Nationally Described Space Standard to ensure greater local housing choice, while ensuring we avoid a race to the bottom in the size of homes on offer. ”

Perhaps it is right that some flexibility is required, I don’t know. See for example the recent Adam Smith Institute paper Size doesn’t matter https://static1.squarespace.com/static/56eddde762cd9413e151ac92/t/5c41d02f0ebbe8aa256c361c/1547817061183/Size+Doesn%27t+Matter+—+Vera+Kichanova.pdf in which Vera Kichanova puts forward the case for micro housing.

But in any revised system we arrive at, whatever the standards that may be justified in relation to homes designed to be occupied as long-term self-contained living accommodation, care is needed before equivalent requirements are read across to other forms of living that don’t fall within use class C3, such as serviced apartments and co-living, if the baby isn’t to be thrown out with the bath water in terms of what makes these different types of living attractive and affordable for those with differing requirements or priorities.

There appears to be no sign of the review of the nationally described space standards that had been promised (although in October 2018 minimum bedroom sizes were introduced for HMOs pursuant to the Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences) (England) Regulations 2018).

Perhaps the review will be part of the “Future Homes Standard” consultation to be carried out this year, according to that James Brokenshire statement, although that does not appear to be the intended focus, if the statement made on 21 March 2019 to the House of Lords by Lord Bourne, Parliamentary Under-Secretary for Housing, Communities and Local Government, is anything to go by:

“The Government will consult later this year on our plans to introduce the future homes standard for new-build homes to be future-proofed with low-carbon heating and world-leading levels of energy efficiency. Separately, the Government are currently working on a review of accessibility standards for new homes.”

As always, piecing together what is planned is like putting together a jigsaw, the picture for which is in parts just fog.

Finally, a plug for the best book on the subject, freely available via this link: One Hundred Years of Housing Space Standards: What Now? by Julia Park (January 2017).

Simon Ricketts, 23 March 2019

Personal views, et cetera

Accelerated Planning

James Brokenshire’s 13 March 2019 written statement, made alongside the Chancellor’s Spring Statement, includes some important, if sometimes vague, pointers as to how the Government intends to speed up development management processes and housing delivery, although already we have a good sense of what lies ahead in relation to planning appeals that proceed by way of inquiry.

Delivery

My 3 November 2018 blog post covered Sir Oliver Letwin’s recommendations to Government following his review into the “build out of planning permissions into homes“.

The Secretary of State has now confirmed that the Government will “shortly publish additional planning guidance on housing diversification – to further encourage large sites to support a diverse range of housing needs, and help them to build out more quickly“.

He agrees “with the principle that the costs of increased housing diversification should be funded through reductions in residual land values. The Government is committed to improving the effectiveness of the existing mechanisms of land value capture, making them more certain and transparent for all developments. My focus is on evolving the existing system of developer contributions to make them more transparent, efficient and accountable and my department is gathering evidence to explore the case for further reform.”

“I will keep the need for further interventions to support housing diversification and faster build out, including amendments to primary legislation, under review. My department will also work closely with Homes England to identify suitable sites and will look for opportunities to support local authorities to further diversify their large sites.”

Development management

“My priority now is to ensure faster decision-making within the planning system. My department will publish an Accelerated Planning Green Paper later this year that will discuss how greater capacity and capability, performance management and procedural improvements can accelerate the end-to-end planning process. This Paper will also draw on the Rosewell Review, which made recommendations to reduce the time taken to conclude planning appeal inquiries, whilst maintaining the quality of decisions. I will also consider the case for further reforms to the compulsory purchase regime, in line with our manifesto commitment.”

We wait to see what detailed proposals the green paper will include for the planning application stage and indeed for appeals that proceed by way of written representations or hearings.

Bridget Rosewell’s independent review of planning appeal inquiries was published on 12 February 2019. The executive summary sets out the current statistics as follows:

8. “On average, about 315 planning appeals each year are the subject of an inquiry (inquiry appeals), comprising 2% of the total number of planning appeal decisions. Around 81% of inquiry appeals are decided by planning inspectors on behalf of the Secretary State. The remaining 19% of cases (recovered appeals and called-in applications) are decided directly by the Secretary of State, having regard to an inspector’s report.

9. Although relatively small in number the scale of development, particularly housing development, that is determined through inquiry appeals is significant. In 2017/18 over 42,000 residential units were included in inquiry appeal schemes, of which just over 18,600 units were allowed/approved. This represents 5.4% of the 347,000 total approved residential units in the year 2017-18.

10. In 2017/18, it took an average of 47 weeks for inspector-decided cases from receipt of the appeal to a decision letter being issued. On average, it took 60 weeks from the point of validation of an appeal to the submission on an inspector’s report to the Secretary of State for recovered appeals and 50 weeks (from validation to submission of the inspector’s report) for called-in applications. It then took, on average, a further 17 weeks after the inspector’s report had been submitted for the Secretary of State to issue a decision for recovered appeals and a further 26 weeks for called-in applications. In 2017/18, 111 inquiry appeals were withdrawn before a decision was made.”

MHCLG updated its website page Appeals: how long they take on 14 March 2019. That 47 weeks average referred to in paragraph 10 has now slipped to 50 weeks (if that 50 weeks figure excludes recovered appeals and call-ins).

Bridget Rosewell had 22 recommendations as to how the planning appeal inquiry process can be improved and decisions made quickly:

1.The Planning Inspectorate should ensure the introduction of a new online portal for the submission of inquiry appeals by December 2019, with pilot testing to start in May 2019.

2.The Planning Inspectorate should work with representatives of the key sectors involved in drafting statements of case to devise new pro formas for these statements which can then be added to the new portal and include, where appropriate, the introduction of mandatory information fields and word limits.

3.The process of confirming the procedure to be used should be streamlined. Where an inquiry is requested, appellants should notify the local planning authority of their intention to appeal a minimum of 10 working days before the appeal is submitted to the Planning Inspectorate. This notification should be copied to the Inspectorate.

4.The Planning Inspectorate should ensure that only complete appeals can be submitted and ensure that a start letter is issued within 5 working days of the receipt of each inquiry appeal. The start letter should include the name of the inspector who will conduct the appeal.

5.The practice of the Planning Inspectorate leading on the identification of the date for the inquiry should be restored, with all inquiries commencing within 13 to 16 weeks of the start letter.

6.The Ministry of Housing, Communities and Local Government (MHCLG) should consult on the merits of appellants contributing towards the accommodation costs of the inquiry.

7.MHCLG and the Planning Inspectorate should substantially overhaul the approach to the preparation of statements of common ground.

8.a) In every inquiry appeal case, there should be case management engagement between the inspector, the main parties, Rule 6 parties and any other parties invited by the inspector, not later than 7 weeks after the start letter.
(b) Following the case management engagement, the inspector should issue clear directions to the parties about the final stages of preparation and how evidence will be examined, no later than 8 weeks after the start letter.

9.The inspector should decide, at the pre-inquiry stage, how best to examine the evidence at the inquiry and should notify the parties of the mechanism by which each topic or area of evidence will be examined, whether by topic organisation, oral evidence and cross-examination, round-table discussions or written statements.

10.The Planning Inspectorate should ensure all documents for an inquiry appeal are published on the new portal, in a single location, at the earliest opportunity following their submission.

11.The Planning Inspectorate should ensure the timely submission of documents. It should also initiate an award of costs where a party has acted unreasonably and caused another party to incur unnecessary or wasted expense.

12.The Planning Inspectorate should amend guidance and the model letter provided for local planning authorities to notify parties of an appeal, to make it clear that those interested parties who want Rule 6 status, should contact the Inspectorate immediately.

13.The Planning Inspectorate should consult with key stakeholder groups, to update its procedural guidance to set out clear expectations on the conduct of inquiries, based on a consistent adoption of current best practice and technology. Updated guidance should encourage and support inspectors in taking a more proactive and directional approach.

14.The Planning Inspectorate should ensure that its programme for improving operational delivery through greater use of technology fully exploits the opportunities available to enhance the efficiency and transparency of the inquiry event, such as the use of transcription technology for inspectors and publishing webcasts of proceedings.

15.Alongside other recommendations that will improve the transparency and clarity of the process (Recommendations 10, 12, 13 and 14), the Planning Inspectorate should develop a more effective and accessible guide to the inquiry process for interested parties, including members of the public.

16.Programming of inspector workloads should ensure there is enough time to write up the case immediately after the close of the inquiry.

17.a) To minimise the number of cases that need to be decided by the Secretary of State, MHCLG should keep their approach to the recovery of appeals and called- in applications under review. b)The Planning Inspectorate should work with MHCLG to identify ways that technology can be used to speed up the process of preparing the inspector’s report to the Secretary of State.

18.The Planning Inspectorate should submit an action plan to the Secretary of State by April 2019. The action plan should set out how it will ensure that the necessary organisational measures are put in place to deliver the proposed timescale targets and wider improvements by no later than June 2020. This should include the mechanisms by which sufficient inspectors can be made available. The action plan should also set out challenging, but realistic, intermediate milestones to be achieved by September 2019.

19.The Planning Inspectorate should review the issue of withdrawn appeals and consider how this impact on its work can be minimised. To deliver this the Inspectorate should:

•(a) always collect information from appellants about why an appeal is withdrawn

•(b) initiate an award of costs where there is evidence of unreasonable behaviour by a party in connection with a withdrawn appeal

•(c) with the benefit of more detailed information, review whether further steps can be taken to reduce the impact of withdrawals on its resources and other parties.

20.The Planning Inspectorate and MHCLG should regularly discuss the practical impact of new policy and guidance on the consideration of evidence at inquiries, with those parties who are frequently involved in the planning appeal inquiry process.

21.The Planning Inspectorate should adopt the following targets for the effective management of inquiry appeals from receipt to decision

(a) Inquiry appeals decided by the inspector
Receipt to decision – within 24 weeks – 90% of cases Receipt to decision – within 26 weeks – remaining 10% of cases

(b) Inquiry appeals decided by the Secretary of State
Receipt to submission of inspector’s report – within 30 weeks – 100% of cases

22.The Inspectorate should regularly report on its performance in meeting these timescales and what steps it is taking to expedite any cases that take longer.

•(a) The Planning Inspectorate should use its Transformation Programme to ensure there is robust and comprehensive management and business information, which is regularly collected and reported, on all aspects of their operation.

•(b) In developing an improved suite of information the Inspectorate should also:

•ensure their digital case management record system records information on key variables in a consistent way

•agree with MHCLG a new set of key performance indicators to effectively monitor the inquiry appeal process from end to end, including the availability of senior inspectors. “

These tables give a sense of what we might expect:

The Planning Inspectorate announced on 13 March 2019 that it is carrying out a trial of accelerating a small number of inquiry appeals as part of a pilot of holding inquiries much earlier than at present. For these appeals it will move away from its “bespoke” process whereby PINS invites the parties to agree a programme, including an inquiry date.

Before long we will all have to adapt our approaches to individual appeals in the interests of a more generally speedy process. It will be increasingly difficult to seek to negotiate a later date than PINS proposes (even when the main parties have no objections) in order to accommodate particular team members’ availability.

For the Inspectorate, it’s certainly going to be a period of change. It was announced today, 15 March 2019, that Graham Stallwood, currently chief planning officer at the Royal Borough of Kensington and Chelsea and chairman of the board of trustees of the RTPI, has accepted a position as PINS’ Director of Operations, commencing in May. Graham – you will be excellent!

For those of us who lodge and coordinate appeals for developer clients, well we are going to need to get to grips with a new IT interface for the submission of appeals and new case management processes but above all find the strength to tell our clients the news that, having been at the heart of strategic thinking in relation to a decision to invest in an appeal and having shaped the statement of case, their favourite QC may not in fact be available for that crucial inquiry…

Simon Ricketts, 15 March 2019

Personal views, et cetera

Speedy Delivery, Richland, Washington, MA

NPPF & PPG In Court

Hanging over me all week was a deadline for preparing a legal update about the NPPF. Then, thank you judges, just like London buses but with more barristers on board, along came three interesting cases.

Is the NPPF subject to the requirements of SEA?

The question as to whether the latest version of the NPPF required strategic environmental assessment was the question before Dove J in Friends of the Earth v Secretary of State (Dove J, 6 March 2019).

You will recall that requirements of the SEA Directive apply to plans and programmes which are “required by legislative, regulatory or administrative provisions” and which “set the framework for future development consent of projects”.

The Government argued that neither applied in the case of the NPPF. It was always going to be a stretch to argue that the, er, Framework does not set the framework for the future development consent of projects and the judge wasn’t going to accept that. But he did conclude that due to the Framework’s curious, non-statutory, legal basis it could not be said to be required by legislative, regulatory or administrative provisions and therefore SEA was not required: “there is in reality nothing by way of any formal provisions which might be said to govern or regulate the production of the Framework“.

Incidentally, I had always assumed that fear of being caught by SEA requirements was one reason why the NPPF has remained so determinedly non-spatial but, on Dove J’s reasoning, even an NPPF with spatial policies would not require SEA.

Was consultation on the draft NPPF legally inadequate in relation to fracking?

The hearing in relation to Stephenson v Secretary of State (Dove J, 6 March 2019), a claim brought on behalf the Talk Fracking campaign group, immediately followed the Friends of the Earth hearing and one of its grounds (ground 3) was covered by the previous case. The other grounds focused on the new NPPF’s pro-fracking paragraph 209(a):

“Minerals planning authorities should:
a) recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy; and put in place policies to facilitate their exploration and extraction.”

Ground 1 contended that “the Defendant unlawfully failed to take into account material considerations, namely scientific and technical evidence, which had been produced following the adoption of a Written Ministerial Statement by the Secretary of State for Business and Energy and Industrial Strategy and the Defendant on 16th September 2015 (“the 2015 WMS”)”

Ground 2 contended that “the Defendant failed, in publishing the policy in paragraph 209(a) of the Framework, to give effect to the Government’s long-established policy in relation to the obligation to reduce green-house gas emissions under the Climate Change Act 2008“.

Ground 4 contended that “the Defendant failed to carry out a lawful consultation exercise in relation to the revisions to the Framework which were published on 24th July 2018.”

Dove J started with ground 4, because “at the heart of the dispute” was the questions as to “what the Defendant was doing when incorporating paragraph 209(a) into the Framework or, more particularly in relation to Ground 4, what a member of the public engaging in the consultation process and reading the publicly available material as a reasonable reader, would have concluded the Defendant was doing“. The issues “cannot be disposed of by simply considering the Defendant’s private intentions“. In the documentation there was no suggestion that the merits or substance of the policy represented by the 2015 WMS were outside the scope of the consultation.

“By contrast with what the reasonable reader would have discerned from the publicly available material, the Defendant had a closed mind as to the content of the policy and was not undertaking the consultation at a formative stage. The Defendant had no intention of changing his mind about the substance of the revised policy. Further, the Defendant did not conscientiously consider the fruits of the consultation exercise in circumstances where he had no interest in examining observations or evidence pertaining to the merits of the policy. This had the effect of excluding from the material presented to the Minister any detail of the observations or evidence which bore upon the merits of the policy. Given my conclusion as to what the reasonable reader would have concluded from the publicly available documentation the consultation exercise which was undertaken was one which involved breaches of common law requirements in respect of consultation and which was therefore unfair and unlawful.”

Ground 1 accordingly also succeeded: it was unlawful to fail to take the Talk Fracking material into account in decision making as to the final form of the NPPF, given that it was clearly relevant to the questions posed. “The fact that the Defendant believed that he was taking a far more narrow and restricted decision from that which he had advertised to the public does not provide a basis for avoiding that conclusion.”

Ground 2 failed, but on the basis of reasoning which may be helpful to the anti-fracking community, in that the judge accepted the Secretary of State’s submission that “in individual decisions on plans or applications the in principle support for unconventional hydrocarbon extraction, provided by paragraph 209(a) of the Framework, will have to be considered alongside any objections and evidence produced relating to the impact of shale gas extraction on climate change. These are conflicting issues which the decision-maker will have to resolve.”

The judge has not yet determined the appropriate relief (ie what should be done) to give effect to his judgment. But surely we are now likely to see further consultation as to paragraph 209(a) and potentially another tweaked NPPF in due course. NPPFs are also now coming along like buses.

What is the legal status of Planning Practice Guidance?

This question was relevant in Solo Retail Limited v Torridge District Council (Lieven J, 4 March 2019) as it went to complaints about the approach taken by a local planning authority to retail impact assessment, in a challenge by one value retailer to a planning permission granted to a competitor. The complaint was that the guidance in the PPG has not properly been followed.

Of course if there is doubt as to the legislative, regulatory or administrative basis for the National Planning Policy Framework, that doubt is accentuated in the case of the Government’s subsidiary Planning Practice Guidance.

The judge found that the NPPF and the local development plan were not prescriptive as to the form of retail impact assessment required to be carried out. The claimant therefore had to fall back on the detailed steps for assessment set out in the PPG.

However:

“In my view the NPPG has to be treated with considerable caution when the Court is asked to find that there has been a misinterpretation of planning policy set out therein, under para 18 of Tesco v Dundee. As is well known the NPPG is not consulted upon, unlike the NPPF and Development Plan policies. It is subject to no external scrutiny, again unlike the NPPF, let alone a Development Plan. It can, and sometimes does, change without any forewarning. The NPPG is not drafted for or by lawyers, and there is no public system for checking for inconsistencies or tensions between paragraphs. It is intended, as its name suggests, to be guidance not policy and it must therefore be considered by the Courts in that light. It will thus, in my view, rarely be amenable to the type of legal analysis by the Courts which the Supreme Court in Tesco v Dundee applied to the Development Policy there in issue.

These points are illustrated the paragraphs of the NPPG that are most relevant in this case. Paragraph 015 says that “the impact test should be undertaken in a proportionate and locally appropriate way…” However, paragraph 017 says “The following steps should be taken in applying the impact test…”. Taken at face value these words would seem to suggest that the following elements are mandatory where there is a policy requirement for any form of impact test. However, in my view that cannot be the case. There is a judgement for the LPA as to what level of scrutiny of possible impact is appropriate in the particular circumstances of the proposal, taking into account the need to be proportionate. Paragraph 017 therefore cannot and should not be interpreted and applied in an overly legalistic way as if it was setting out mandatory requirements.”

A reminder not to interpret the PPG legalistically. There may be internal inconsistencies within it. Guidance means guidance.

Simon Ricketts, 9 March 2019

Personal views, et cetera

Trial By Instagram: Privacy & Planning

Photo-sharing social media apps, weaponised by the smartphone camera, are changing our experience and expectations of place. Is the planning system, and the law of private nuisance, keeping up?

The London Evening Standard had a story for our times last night: Please stop ‘influencing’ on our doorsteps, Notting Hill residents tell ‘unapologetic’ Instagrammers.

At a personal level we have all become artists, influencers, curators, with our instant pics, filtered, composed, annotated. Fomo for you = dopamine for me. But zoom out and through endlessly snapping, sharing, liking and commenting, we are of course the product, the hive mind, the crowd source, working for the data mine, adding to the geo-cache, mapping ceaselessly where the sugar is in the city.

In this context, what sells a place? From outside in: a glimpse of the life style, the life, that could be yours. From inside out: unique views out onto a city. The two ugly i words: iconic, instagrammable.

Which all makes the parable of Fearn & others v The Board of Trustees of the Tate Gallery (Mann J, 11 February 2019) so perfect.

On one side, the residents of Neo Bankside, housed from floor to ceiling in glass so as to achieve spectacular views out and having paid no doubt precisely to be able to enjoy that experience.

On the other side, at its closest point 34 metres to the north of Block C of Neo Bankside, the viewing gallery on the tenth floor of the Blavatnik Building extension to Tate Modern, from which visitors also have spectacular views, including, to the south, of those residents in their transparent homes.

Plan A from the judgment (extract)

The people in the glass houses threw an expensive stone at their large neighbour, in the form of proceedings for an injunction to prevent overlooking from the viewing gallery, on the basis that it amounted to a breach of their rights to privacy, both under the law of private nuisance and, if the Trustees of the Tate were to be considered to be a public body, under Article 8 of the European Convention on Human Rights.

What makes the situation particularly unusual is that the full implications of the juxtaposition of the two developments had not been appreciated by anyone, including the local planning authority (the London Borough of Southwark). The Tate proposals went through various design iterations. The judge found:

“On the balance of probabilities it is not likely that the planning authority did consider the extent of overlooking. It is more than plausible in all the circumstances that it did not, and I find that it was not given any focused attention by the planning authority.

So far as the developers of Neo Bankside are concerned, there is very little material on which to make a finding as to their awareness of the consequences of the viewing gallery. The developers were plainly aware of the nature of the Blavatnik development from time to time, and I accept Mr Hyslop’s evidence that there was consultation between the two sides. It is plain that the developers were aware of a viewing gallery because concerns were expressed as to the effect the flats would have on the viewing gallery (not the other way round). It is very likely that the developer was aware of the plans for the gallery during the concurrent planning process. However, I do not think that the developer foresaw the level of intrusion alleged by the claimants, and therefore to that extent did not foresee the consequences of its co-operation or its knowledge.

The end result of this analysis is that, so far as relevant, I find that all relevant parties were eventually aware of the viewing gallery in its present form, and aware of its function, but (so far as relevant) they did not think through the consequences of overlooking, and looking into, the flats in Block C.”

Whilst the planning system’s role does not extend to closing off all risks of nuisance actions from those affected by development, it is a shame that the full consequences of the juxtaposition of the viewing gallery and the flats were not appreciated at the time that the application for planning permission was determined so that the issue could have been considered as against Southwark’s planning policies that seek to protect residential amenity and the issue might have been pragmatically nipped in the bud.

One further complication appears to have been that the Neo Bankside development ended up being occupied other than visualised as at when planning permission was granted, with “winter garden balconies” ending up being subsumed as part of residents’ living space. Again, to what extent is it the role of the planning system to foresee issues of privacy and overlooking that may arise in consequence of internal changes such as this?

The judgment sets out the numbers of visitors that use the viewing gallery, potentially as many as 500,000 to 600,000 a year. The Tate has posted notices on the southern gallery asking visitors to respect the privacy of the gallery’s neighbours and has instructed security guards to stop people taking photographs of the flats and occupants. The judgment then describes the activities of the visitors and it is apparent that many take photographs of the flats.

“The claimants also rely on reports on social media as demonstrating a photographic and “peering” interest in the flats. They, and Mr May, produced in evidence a large number of photographs from social media, some accompanied by comments, which indicate that people have been to the gallery, noted that one can see into the flats, and commented in such a way as to acknowledge that there was a surprising intrusion into privacy arising as a result of that.

The first batch of postings were all dated in a period shortly after the Mail on Sunday wrote a piece about the issue in 2016. They are 14 Instagram posts which feature various photographs of the interiors of the Block C flats with some reflections on the lack of privacy in the flats. Some juxtapose the sign asking for respect for privacy with the view into the flats themselves; another has the rubric “Invading me some privacy”; another refers to the “Birds eye view directly into the neighbouring apartments. No wandering around in pj’s” with the hashtag (among others) “#noprivacy”. The general impression from that collection of posts, which caused upset to some of the occupants, was that those visitors were interested in peering into the flats when that view was on display.

This was supplemented by investigations into social media carried out by Mr May as part of his expert functions. A member of his firm carried out a check on Instagram and found 124 posts with photographs of Neo Bankside, apparently taken from the viewing gallery, in the period between June 2016 and April 2018. It was estimated by that member that they reached an estimated audience of 38,600, but there is a certain element of intelligent guesswork in that figure. Many of photographs show the interiors of the flats. Judging by their attached comments and hashtags, many of the photographs are taken because of the architectural interest of Block C, or because of the photogenic interest of the subject matter (not always the block by itself), and some comment on the fact that you can see right into the flats. Various conclusions can be drawn from this study, depending on one’s point of interest, but I consider that they support the case of the claimants that part of the interest on the part of at least some posters was in the view of Block C flat interiors from the gallery. For others the interiors are irrelevant, and for yet others it is noted and incidental, but there is a significant discrete interest in what one can see by looking into the flats.”

The judge’s conclusions on the level of intrusion were as follows:

“(a) A very significant number of visitors display an interest in the interiors of the flats which is more than a fleeting or passing interest. That is displayed either by a degree of peering or study, with or without photography, and very occasionally with binoculars.

(b) Occupants of the flats would be aware of their exposure to that degree of intrusion.

(c) The intrusion is a material intrusion into the privacy of the living accommodation, using the word “privacy” in its everyday meaning and not pre-judging any legal privacy questions that arise.

(d) The intrusion is greater, and of a different order, from what would be the case if the flats were overlooked by windows, either residential or commercial. Windows in residential or commercial premises obviously afford a view (as do the windows lower down in the Blavatnik Building) but the normal use of those windows would not give rise to the same level of study of, or interest in, the interiors of the flats. Unlike a viewing gallery, their primary (or sole) purpose is not to view.

(e) What I have said above applies to the upper three flats in this case. It applies to a much lesser extent to flat 1301, because that is rather lower down the building and the views into the living accommodation are significantly less, and to that extent the gallery is significantly less oppressive in relation to that flat.”

It is interesting that the judge does not comment as to whether what is done with the photographs taken, frequently uploaded and shared on social media, adds to the degree of intrusion.

After detailed legal analysis, the judge rejected the Article 8 claim on the basis that the Board of Trustees of the Tate Gallery is not exercising functions of a public nature.

He also rejected the claim in nuisance, but again after interesting analysis:

1. He finds that as a matter of principle there are situations where the law of nuisance can protect privacy, at least in a private home, both under traditional common law but also by giving effect to Article 8 by extending existing causes of action.

2. “That does not mean, of course, that all overlooking becomes a nuisance. Whether anything is an invasion of privacy depends on whether, and to what extent, there is a legitimate expectation of privacy. That inquiry is likely to be closely related to the sort of inquiry that has to take place in a nuisance case into whether a landowner’s use of land is, in all the circumstances and having regard to the locality, unreasonable to the extent of being a nuisance…”

3. The planning process is not by itself a sufficient mechanism for protecting against infringement of all privacy rights.

4. “The question is whether the Tate Modern, in operating the viewing gallery as it does, is making an unreasonable use of its land, bearing in mind the nature of that use, the locality in which it takes place, and bearing in mind that the victim is expected to have to put up with some give and take appropriate to modern society and the locale. Although there is an overall assessment to be made in order to comply with the tests referred to above, I shall approach the question by first breaking the consideration down into three elements – location, the use of the defendant’s property and the nature and use of the claimants’ properties.”

5. Tate’s legal submissions sought to place reliance on the fact that planning permission had been granted, drawing upon a statement by Lord Carnwath in Lawrence v Fen Tigers (Supreme Court, 26 February 2014):

“...a planning permission may be relevant in two distinct ways: (i) It may provide evidence of the relative importance, in so far as it is relevant, of the permitted activity as part of the pattern of uses in the area; (ii) Where a relevant planning permission (or a related section 106 agreement) includes a detailed, and carefully considered, framework of conditions governing the acceptable limits of a noise use, they may provide a useful starting point or benchmark for the court’s consideration of the same issues.”

6. In this case however the planning permission “provides little or no assistance…The level of consideration given to the overlooking, if there was any at all, is not apparent from the evidence that was placed before me.”

7. Nor were the planning policies for the area relevant as they did not “really engage with the important factors which have to be considered in considering a nuisance claim“.

8. “The other way in which Lord Carnwath suggested that the planning permission might be relevant is in providing evidence of the relative importance of the activity to the area. Since the planning permission in this case did not really address the viewing gallery, as opposed to the building as a whole, it is not possible to draw any conclusions from it as to the views of the planning authority on this point, so the permission is of no evidential use here either.”

9. The character of the locality is a significant relevant factor:

“The locality is, as appears above, a part of urban south London used for a mixture of residential, cultural, tourist and commercial purposes. That usage, thus described, does not say much about the privacy of high-rise glass-walled residential buildings. However, the significant factor is that is an inner city urban environment, with a significant amount of tourist activity. An occupier in that environment can expect rather less privacy than perhaps a rural occupier might. Anyone who lives in an inner city can expect to live quite cheek by jowl with neighbours. That is implicitly acknowledged by the claimants when they say they do not object to the fact that they are overlooked from the windows of the Blavatnik Building.”

Planning policies for the area “are of little or no assistance in determining what the current nature of the locality is. If they reflect the current usage, then they are irrelevant and add nothing. If they reflect a desire to move the area along to a different usage then they reflect the aspirations of the planners, but they do not affect what the nature of the locality should be treated as being for the purposes of the law of nuisance. In Fen Tigers the Supreme Court considered the question of whether the grant of planning permission could be taken to affect the character of a neighbourhood, and rejected the suggestion that that could be the case. The Justices considered the proposition that it might affect the character of the neighbourhood if it covered a large area but not a small area, and rejected that too (see eg Lord Neuberger at paras 86-88). If an actual planning decision cannot affect the character of the locality for the purposes of the law of nuisance, then the aspirations of a local authority for an area, as expounded in a local plan, should not be able to do it either. It therefore seems to me that the plans for the area do not bear on the character of the locality in this case.

Second, if I am wrong about that, then even if (as seems to be the case) there is an emphasis on cultural matters, and the benefits of a vibrant Tate Modern, it does not seem to me that that leads to the conclusion that this is an area in which a viewing platform should necessarily be actually expected in that context.

Third, while such generalised planning matters might be capable of resolving a conflict between a residential use and a cultural use (at least so far as planning is concerned), they do not assist in resolving the question of a conflict between a viewing platform (which is a particular subset of the cultural activities of the Tate Modern) and some residential accommodation.”

10. The operation of a viewing gallery is not an inherently objectionable activity in the neighbourhood.

11. Turning to what it is that the claimants complain about:

“They complain that their everyday life in the flats is on view because of the nature of the view. The nature of the view is the complete (or largely complete) view that one has of the living accommodation from the viewing gallery. It is that that is commented in one or two the Instagram postings. That arises (obviously) because of the complete glass walls of the living accommodation. I have considered whether the claimants would have had had a complaint if they had lived in flats designed with more wall and less window. If the owner/occupier/developer of such a flat would still have a complaint in nuisance, then so must the claimants. If he/she would not then I have to consider whether the claimants in this case would nonetheless have a cause of action themselves, arising out of the glass construction.”

The claimants would not have a nuisance claim if they lived in flats with more wall and less window.

“The developers in building the flats, and the claimants as successors in title who chose to buy the flats, have created or submitted themselves to a sensitivity to privacy which is greater than would the case of a less-glassed design. It would be wrong to allow this self-induced incentive to gaze, and to infringe privacy, and self-induced exposure to the outside world, to create a liability in nuisance. Other architectural designs would have reduced the invasion of privacy to levels which should be tolerated; that is the appropriate measure in my view. If the claimants have a design which raises the privacy invasion then they have created their own sensitivity and will have to tolerate what the design has created. I remind myself that the first designs for these flats did have some privacy protection built in.

In making that determination I am not indulging in any criticism of the claimants or the developers; nor am I criticising the architectural design. I am aware that is no part of the law of nuisance to discourage architectural adventure. However, the architectural style in this case (including the more striking design of the block as a whole) has the consequence of an increased exposure to the outside world for all the reasons contained in this judgment. That should not be allowed to alter the balance which would otherwise exist.”

“The winter gardens also have to be considered. A very material part of the perceived intrusion into privacy comes from the fact that the occupiers can be viewed in the winter gardens, which they treat as an extension of their living accommodation. Furthermore, the glass of the winter gardens allows a view to the glass of the internal double-glazed door, which in turn allows a further view into the living accommodation.

Those areas were not originally intended as part of the living accommodation. The planning documents make clear that they were conceived as a form of internal balconies, which the occupiers could enjoy as an additional amenity to their living accommodation. The experts both agreed on that. That is why the areas were single glazed, and not double glazed. The flooring was also intended to be different, to reflect that. They were not intended to be heated, though the developers did actually extend the under-floor heating into them. Had the occupiers operated their flats in that way then in my view they could have expected less privacy in respect of that part of their flats – one does not expect so much privacy in a balcony, even one as high as these. I agree with Mr Rhodes’ evidence to that effect.

In that respect, too, the owners and occupiers of the flat have created their own additional sensitivity to the inward gaze. They have moved more of their living activities into a quasi-balcony area and provided more to look at. Had they not done that, there would have been less worth looking at – less to attract the eye – and fewer living activities to be intruded upon. It is true that to a degree there would still have been a view through the winter gardens and through the double-glazed doors, and to that extent the privacy of the living accommodation would still have been compromised by something more usual (extensive glass doors giving on to a balcony-equivalent) but the whole package would have been a less sensitive one.”

12. Remedial steps could be taken, for instance by lowering solar blinds, installing privacy film or installing net curtains.

Recommendations for further reading

In true online tradition, if you liked this post [in fact whether or not you liked it] you will like Barbara Rich’s beautiful and reflective 15 February 2019 blog post Curtains For The Zeitgeist.

Simon Ricketts, 2 March 2019

Personal views, et cetera

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