simonicity

Village Legal

What is a village? As a result of the government’s latest green belt planning practice guidance (see my 2 March 2025 blog post Colouring In The Grey Belt: The PPG) the answer to that question has practical policy consequences. When judging whether land is grey belt:

in assessing the extent to which the site strongly contributes to green belt purpose (a), to check the unrestricted sprawl of large built up areas, the guidance states categorically: “Villages should not be considered large built up areas”.
in assessing the extent to which the site strongly contributes to green belt purpose (b), to prevent neighbouring towns merging into one another, the guidance states categorically: “This purpose relates to the merging of towns, not villages.”

So if you have land on the edge of a village, the role that the land plays in separating that village from another village, or from a town, or in preventing the settlements from merging with one another, is irrelevant for the purposes of determining whether it is grey belt. Of course any potential development would have to meet other criteria, such as whether the location is “in a location that is or can be made sustainable”, but the distinction between town and village is now profound, for the purposes of applying green belt policy, both at local plan making stage and in determining planning applications and appeals.

Guess what, there is no definition of “village” in the glossary to the NPPF or indeed in national planning practice guidance. The issue is not entirely new given that one of the exceptions to development in the green belt being inappropriate has for many years been “limited infilling in villages” (now NPPF paragraph 154 (e)) but that was a relatively narrow point.

Because I live an interesting life, I participated this week in some lively WhatsApp debate on the issue (yes I’m looking at you, you and you others at this point). Someone pointed to the House of Commons Library’s research briefing City & Town Classification of Constituencies & Local Authorities (21 June 2018). Whilst interesting, this just deepened the mystery. It explains that according to an adjusted version of a taxonomy developed by the Centre for Towns, its classification (which is for wider public policy statistical purposes) was as follows:

12 Core Cities: twelve major population and economic centres (e.g. London, Glasgow, Sheffield)

24 Other Cities: other settlements with a population of more than 175,000 (e.g. Leicester, Portsmouth, Aberdeen)

119 Large Towns: settlements with a population between 60,000 and 174,999 (e.g. Warrington, Hemel Hempstead, Farnborough)

270 Medium Towns: settlements with a population between 25,000 and 59,999 (e.g. Gravesend, Jarrow, Exmouth)

674 Small Towns: settlements with a population between 7,500 and 24,999 (e.g. Falmouth, New Romney, Holbeach)

6,116 Villages and small communities: settlements with a population of less than 7,500 (e.g. Chapel-en-le-Frith, Cottenham, Menai Bridge)

But then the paper goes on to explain:

“This classification isn’t intended to resolve long-standing disputes about which settlements deserve to be called ‘cities’, ‘towns’, or ‘villages’. In fact, it takes no account of the ceremonial definition of ‘city’, using the term only as a way to identify larger settlements. For instance, St Albans is identified as a ‘large town’ here because its population is 86,000 – even though it has city status. Luton, on the other hand, doesn’t have city status, but is classified here as an ‘Other City’ because its population is 225,000.

The precise division between ‘large’, ‘medium’ and ‘small’ towns is, to a large extent, subjective.”

Hmm. So that doesn’t help. By coincidence I then saw a blog post on Bluesky posted by the Urban History Group, What is a town? It starts: “What exactly is a town? The answer to this question has been debated for many decades by medieval historians.” Oh no, many decades is no good. The short piece refers to the definitional uncertainty as between small towns and large villages – resonating with the equivalent uncertainty that there is in our modern planning world. Most local plans will have a table settling out the area’s settlement hierarchy, eg

Tier 1 – city/large town

Tier 2 – town

Tier 3 – small town

Tier 4 – large village

Tier 5 – medium sized village

Tier 6 – green belt village

Tier 7 – green belt hamlet

The distinction between ”small town” and “large village” is going to come under additional scrutiny, but without any government guidance, that I am aware of, as to the criteria to be applied in drawing that distinction.

I did have a brief, far from comprehensive, look at planning appeal decisions. There was one dating from 2019 for instance (APP/B3438/W/18/3211000) which revolved around whether the proposal was “limited infilling in a village” or in fact just a hamlet. The inspector resorted to a dictionary:

“The main parties dispute whether Ridgeway is a village or a hamlet. This has consequences in terms of whether the scheme accords with Framework paragraph 145 e). The Oxford Dictionary defines a village as a group of houses and associated buildings, larger than a hamlet and smaller than a town, situated in a rural area. It defines a hamlet as a small settlement, generally one smaller than a village, and strictly (in Britain) one without a Church. While a church may have once existed in Ridgeway, there is no church there now as it has been replaced by a dwelling known as Chapel House. There are also no other associated buildings in Ridgeway that would, in my judgement, mean that Ridgeway is anything more than a hamlet. The proposal does not accord with the exception in Framework paragraph [(now) paragraph 154(e)].

I think we are going to need some more specific guidance than dictionaries can provide. One WhatsApp response proposes an “if it has a Greggs it isn’t a village” test. I suppose that is a start but I am sure you can do better?

Whilst I’m being an annoying pedant, I would also like separately to draw attention to an inaccuracy in the NPPF glossary’s definition of “major development”:

The definition of “major development” in Article 2 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 is as follows:

“major development” means development which involves one or more of the following—

(a) the winning and working of minerals or the use of land for mineral-working deposits;

(b) waste development;

(c) the provision of dwellinghouses where—

(i) the number of dwellinghouses to be provided is 10 or more; or

(ii) the development is to be carried out on a site having an area of 0.5 hectares or more and it is not known whether the development falls within sub-paragraph (c)(i);

(d) the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more; or

(e) development carried out on a site having an area of 1 hectare or more;

The definition of “major development” in the NPPF glossary is:

“For housing, development where 10 or more homes will be provided, or the site has an area of 0.5 hectares or more. For non-residential development it means additional floorspace of 1,000m2 or more, or a site of 1 hectare or more, or as otherwise provided in the Town and Country Planning (Development Management Procedure) (England) Order 2015.”

The green belt “golden rules” only apply to “major development”. What if you have a scheme of say nine units on a site of between 0.5 and 1 hectares? Under the Development Management Procedure Order that is not major development. But under the glossary, because it has imprecisely summarised the definition in the Order, it would seem to be. Error?

What a time to be a planning lawyer.

NB Back on the main theme of this blog post: shortly after we announced we were setting up our new law firm eight or so years ago, Peter Village KC called me to say that Village Legal would have been such a better name. Maybe so.

Simon Ricketts, 23 March 2025

Personal views, et cetera

PI Bill Guest Post – Some Early Thoughts On The Bill’s Nature Recovery Provisions

I’m away this week of all weeks but I thought I would share my Town Legal colleague Susannah Herbert’s early thoughts on Part 3 (development and nature recovery) of this week’s Planning and Infrastructure Bill. This is not intended as a full summary – there are plenty of those already.

Part 3 of the Bill sets out provisions to provide for the strategic approach to addressing environmental impacts along the lines set out in the Development and Nature Recovery Planning Reform Working Paper published in December 2024. This relates to protected sites and protected species under the Habitats Regulations, the Wildlife and Countryside Act 1981 and the Protection of Badgers Act 1992 so it will not affect areas or species not covered by this legislation or other EIA requirements. It applies to “development” as defined in section 55 of the TCPA 1990 and also development within the meaning of the Planning Act 2008 (section 32) and listed building consent under section 8 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

The principle is that Natural England is to put in place Environmental Delivery Plans (“EDPs”) which set out “conservation measures” to address certain identified “environmental impacts” of development on “environmental features” within a specified area and developers within that area then pay a “nature restoration levy” to fund the implementation of the EDP instead of having to carry out appropriate assessment or obtain protected species licences on a site by site basis.

The government believes that facilitating a more strategic approach to the discharge of environmental obligations will result in improved environmental outcomes being delivered more efficiently and reduce delays to development caused by lack of mitigation for example in respect of nutrient neutrality.

Much of the detail about the payment of the levy is to be contained in “nature restoration levy regulations” which would set out details concerning liability, matters that Natural England must have regard to in setting the amount of the levy, appeals in respect of the levy, use of the levy, collection, enforcement and compensation (for loss resulting from enforcement action). The government may also give guidance to Natural England about any matter connected with the levy.

The implications of these provisions are potentially extremely significant for both developers/ landowners and for nature recovery and whether the impact will be positive or negative will depend very much on the implementation and scope of the EDPs. The win-win scenario of improved environmental outcomes with lower cost and delay for developers may be achieved if strategic mitigation is effectively identified and implemented and the levy charged to developers is more cost effective than it would be to provide the mitigation on-site. However, it is also possible that the levy will need to be set at an unviable level, that the conservation measures are not effectively implemented at the same time as removing protections from protected species and habitats and that the loss of flexibility for developers has unintended consequences for viability and deliverability.

The Explanatory Notes include an example of how the proposals are intended to work based on nutrient pollution from residential development in a river catchment affecting a protected water course. Part of an EDP may be the imposition of a condition on a planning permission which in the example could be that all houses include septic tanks. The EDP would then provide for conservation measures such as the building of a wetland to be funded by the tariff. The impact would be monitored and an extension to the wetland may be delivered if the main measures are not sufficient. The payment of the levy would remove the requirement for an appropriate assessment to be carried out for the specific development.

However, many questions and potential issues remain.

Cl. 61(4) allows for EDPs to be mandatory in a specified area (although this has to be justified). This would remove the choice from developers to provide on-site mitigation even if this were preferable in nature recovery terms and more viable for the particular site.

The charging schedule for the levy will be set for each EDP and for each kind of development to which the EDP applies. Natural England must have regard, to the extent and in the manner specified by nature restoration levy regulations, to the actual and expected costs of the conservation measures proposed; matters specified in the regulations relating to the economic viability of development; and other actual or expected sources of funding for those conservation measures. The regulations may permit charging schedules to operate by reference to descriptions of purposes of development; any measurement of the amount or nature of development; the nature or existing use of the site; inflation; by reference to values used for other statutory purposes ; or may allow for differential rates including provision for supplementary charges, a nil rate, increased rates or reductions.

None of these matters are directly linked to the actual impacts of a particular development. This may be appropriate where the relevant impact can be sufficiently and fairly estimated on the basis of e.g. the quantum and type of development taking into account the existing use of the land such as the example of residential nutrient pollution given. However, in other cases such as in respect of protected species, the result may be that a development has to pay the levy to mitigate an impact on a species which was not present on the site in the first place or which would not be impacted by the development because of the design of the development. It may be that the intention is that surveys are carried out as part of bringing forward the EDP to establish which parcels of land it should apply to but this would potentially result in unnecessary work if surveys have to be carried out over a whole area compared to surveying only those sites where development is proposed. It is also not clear if the surveys would be kept up to date. The Secretary of State may make further regulations regarding requirements for Natural England when preparing an EDP which may address some of these questions.

The strategic nature of the mitigation proposed to be provided begs another set of questions. If a certain number of developments are required to contribute to fund the strategic mitigation, how will the sequencing work? Will the impacts of the first developments remain unmitigated until sufficient development comes forward to fund the strategic mitigation (in which case how much damage will be done to protected species or habitats in the meantime)? or will the conservation measures be funded by the Government in anticipation of development (which may not materialise and therefore may end up being an unnecessary cost to the public finances)? Both of these approaches are possible under cl. 66(4) which allows for expenditure already incurred to be reimbursed and for money to be reserved for future expenditure.

The regulations may also make provision about payment in forms other than money (such as making land available, carrying out works or providing services) (cl 67(6)) which may allow part of the cost of the levy to be offset by on-site mitigation or potentially providing additional mitigation and somehow receiving credit for this although there is no clear mechanism for this to operate.

It should also be noted that Natural England would be given the power to compulsorily acquire land for purposes connected with the taking of a conservation measure (cl. 72).

Public authorities would be required to co-operate with Natural England in connection with the preparation or implementation of an EDP (cl. 75). Natural England must publish a report for each financial year on the exercise of its functions in respect of these provisions (cl. 73) and the Secretary of State may also designate another person to exercise the functions of Natural England (cl. 74).

The Bill (cl 53- 60) sets out the process for preparation of an EDP, statutory consultation, making of the EDP by the Secretary of State based on an “overall improvement test”, publication, reporting, amendment, revocation and challenge. There would therefore be opportunities for developers to make representations concerning a proposed plan possibly arguing that a particular allocated site should be excluded if on-site mitigation is proposed or presenting evidence as to viability in respect of the proposed levy. There is also the potential to challenge a plan by way of judicial review which could potentially introduce a whole new set of delays to development.

Thanks for that Susie. This is now me again in this paragraph. Plenty more to cover both on this subject and the PI Bill itself. Aside from not having read the whole Bill itself yet (I know I know), I also haven’t read the Life of Pi by Yann Martel. I’m told by google that “its main message is that life can and will be difficult. However, people must persevere by any means necessary. Being adaptive and having faith in yourself and a higher power can help a person achieve any obstacle in their path.” How true. As in life so in planning and infrastructure.

Simon Ricketts, 13 March 2025

Personal views, et cetera

Cons & Pros

A list of the 25 or so current statutory consultees in relation to relevant planning applications is set out in table 2 of the government’s guidance, here.

The previous government appointed Sam Richards in December 2023 to carry out an independent review of the role of statutory consultees in the planning system, since when that, er, consultation disappeared into a large hole. Would the new government take up the cudgels? Sam Stafford’s 6 November 2024 blog post On Stat Cons is good on the subject, referring back to previous concerns raised by the RTPI and a series of suggestions that had been made by the Competition and Markets Authority. On 26 January 2025, the Deputy Prime Minister and the Chancellor announced a moratorium on the creation of new statutory consultees and committed to reviewing the existing arrangements.

Anecdotally, the statutory consultees where issues most frequently arise are surely National Highways, the Environment Agency and Natural England. True, the issues within their domain are often technically, and sometimes legally, complex, but how often does the local planning authority or applicant receive a relatively standard holding response or objection and then have to engage in lengthy chasing process to resolve the issue?

We now have action, but is it in the right direction? A press statement emerged from MHCLG overnight, Bureaucratic burden lifted to speed up building in growth agenda – GOV.UK (10 March 2025), followed by a written ministerial statement.

The headlines from the press statement:

“Review of statutory consultee system to promote growth and unblock building

Consultation on limiting the scope of statutory consultees and removing a limited number of them, including Sport England, Theatres Trust and The Gardens Trust in planning decisions, while ensuring necessary community facilities and needs continue to be met

Will also establish a new performance framework with greater ministerial oversight

Reforms will reduce delays and uncertainty on planning proposals, demonstrating the government’s Plan for Change in action”

The government will be:

Consulting on reducing the number of organisations, including the impact of removing Sport England, the Theatres Trust and The Gardens Trust.

Reviewing the scope of all statutory consultees, to reduce the type and number of applications on which they must be consulted – and making much better use of standing guidance in place of case-by-case responses.
Clarifying that local authorities should only be consulting statutory consultees where necessary to do so, and decisions should not be delayed beyond the 21 day statutory deadline unless a decision cannot otherwise be reached or advice may enable an approval rather than a refusal.
Instituting a new performance framework, in which the Chief Executives of key statutory consultees report on their performance directly to Treasury and MHCLG Ministers.”

Sport England has responded as follows:

“The purpose of our statutory planning remit is to protect playing fields and community spaces for sport and physical activity.

“Britain’s childhood obesity crisis is rising and low physical activity levels cost our economy £7.4billion a year, making it vital we protect the places that local communities can be active.

“We support growth and exercise our powers carefully and quickly, ensuring local neighbourhoods are designed to help people live healthy, happy and active lives.

“We look forward to taking part in the Government’s consultation exercise and arguing the importance of protecting playing fields and places where local people can keep active.“

It perhaps has a reason to feel sore. The government’s press statement picks out a particular incident where “In Bradford, a development to create 140 new homes next to a cricket club was significantly delayed because the application was thought to have not adequately considered the speed of cricket balls.” I decided to look into this one. It was in fact widely publicised, for instance in a 12 November 2024 piece Speed of cricket balls could stump housing scheme. Sport England had queried the applicant’s consultant’s conclusions as to risk, based on the consultant’s assumptions as to the speed at which the balls might travel. Was this so wrong in principle or was the problem one of the slowness or over-rigidity of Sport England’s reaction? It is not clear.

I am a past trustee of the Theatres Trust and I was disappointed to see that the Trust is being considered for removal from the list. It is difficult to see how the Trust can effectively fulfil its statutory role under the Theatres Act 1976 of protecting theatres (widely defined) without being consulted on any planning application involving land on which there is a theatre or which will have an impact on theatre use. The Trust responded to 289 applications last year and, from my now admittedly historic knowledge of how the Trust operates, I would be surprised if any of those responses were late or unhelpful.

The written ministerial statement gives this further detail as to the government’s intentions:

“…we will review the range and type of planning applications on which statutory consultees are required to be consulted and consider whether some types of application could be removed, or addressed by alternative means of engagement and provision of expert advice. In some cases, this could be done through undertaking more effective strategic engagement at the local and strategic plan level, reducing the need for comments on individual planning applications, and increasing the role of standing advice. We will consult on these changes in the Spring alongside the impact of removal of the organisations identified above, before taking forward any resulting changes in secondary legislation later this year.”

There is also the advice in the WMS that: “local planning authorities should limit consultation of statutory consultees to only those instances where it is necessary to do so. Local planning authorities must still consult with statutory consultees where there is a legislative requirement to do so, noting that if there is relevant and up to date standing advice published with respect to that category of development, then consultation is not required. Applications may need to be referred to particular statutory consultees outside of the statutory requirements where their expertise is required, given the nature of the development, but should not be referred where standing advice is sufficient.”. “Decisions should not be delayed in order to secure advice from a statutory consultee beyond the 21 (or 18) day statutory deadlines unless there is insufficient information to make the decision or more detailed advice may enable an approval rather than refusal.” “In those limited circumstances where the statutory consultee is expected to provide advice on significant issues and it is necessary (for example, on safety critical issues), appropriate extensions to the 21 day deadline should be granted so that sufficient and timely information is available to inform the decision.“

“To support timely and effective engagement with the planning system, we will also institute a new performance framework. As part of this framework, an HM Treasury and MHCLG Minister will meet annually with Chief Executive Officers of key statutory consultees in order to review their performance.” “Finally, the Government recognises that statutory consultees need to be resourced adequately, and on a sustainable basis to enable them to support the government’s growth objectives in full.”

Much of this is surely to be welcomed but I think we need to focus on ensuring that the main statutory consultees respond positively, effectively and quickly rather than simply cutting out those which look a little niche (they are – and when your proposals are in that niche that’s where their specialist input is so important).

Simon Ricketts, 10 March 2025

Personal views, et cetera

Colouring In The Grey Belt: The PPG

Now that the Government’s Planning Practice Guidance has been confirmed by the Court of Appeal as having the same policy making status as the National Planning Policy Framework (see Mead Realisations Limited v Secretary of State (Court of Appeal, 30 January 2025), changes to the PPG might be seen as the MHCLG policy making equivalent of US Presidential executive orders in terms of immediacy. Last week’s PPG advice on grey belt might not have renamed the Gulf of Mexico but it does set some new firm boundary lines, effective from 27 February 2025.

In my 8 February 2025 blog post It Was The “Rushed And Incoherent” Jibe That Got Me I referred to the impact which the December 2024 NPPF has made by way of the introduction of the “grey belt” test, particularly in relation to decision making on planning applications and appeals. The flow of appeal decisions has continued and I refer to a couple of them later in this post, but since all of this (and indeed those decisions) we now have the government’s promised amendments to the PPG advice on the role of green belt in the planning system (27 February 2025) which will in my view serve to increase the number of proposals coming forward (given that its overall effect is to set the definitional boundary lines more clearly, largely to the benefit of promoters) whilst (to the extent that the advice is now more specific as to the way in which the grey belt tests should be applied) hopefully reducing the number of proposals that do actually have to go to appeal.

You will already have read Zack Simons’ 27 February 2025 blog post The “Grey Belt” has arrived but here is my brief take on some of the main points to note from the new guidance:

The Government expects all local planning authorities reviewing green belt boundaries to identify where land is grey belt, dividing their green belt into separate assessment areas for the purpose of identifying grey belt. The same will apply in due course for strategic authorities carrying out spatial development strategies. To state the obvious, these assessments are going to be hugely important to landowners.

Given that the core principle in relation to identifying green belt land as grey belt is an assessment as to the extent to which the land strongly contributes to green belt purposes (a), (b) and (d), there is helpful guidance as to the considerations to be applied in considering each of those judgements, setting out illustrative features in each case which might point to the contribution being strong, moderate or weak.“
In relation to Purpose A – to check the unrestricted sprawl of large built up areas – ignore villages, which are not to be considered to be “large built up areas”. An example of a strong contribution would be where, if developed, it would “result in an incongruous pattern of development (such as an extended “finger” of development into the Green Belt)”.

In relation to Purpose B – to prevent neighbouring towns merging into one another – a moderate (not strong) contribution would be “being able to be developed without the loss of visual separation between towns. This could be (but is not limited to) due to the presence or the close proximity of structures, natural landscape elements or topography that preserve visual separation”. A weak contribution: areas that “form part of a gap between towns, but only a very small part of this gap, without making a contribution to visual separation.”

In relation to Purpose D – to preserve the setting and special character of historic towns – this relates to historic towns, not historic villages. Only moderate contribution if the areas “form part of the setting and/or contribute to the special character of a historic town but include one or more features that weaken their contribution to this purpose, such as (but not limited to):
- being separated to some extent from historic aspects of the town by existing development or topography
- containing existing development
- not having an important visual, physical, or experiential relationship to historic aspects of the town”

Even if the area makes no strong contribution to purposes (a), (b) and (d), it needs to be shown that the application of the policies relating to the areas or assets in footnote 7 to the NPPF (other than green belt) would not provide a strong reason for refusing or restricting development. The PPG makes it clear that it may still be possible for authorities to provisionally identify land as grey belt in advance of more detailed specific proposals.

Even if the area makes no strong contribution to purposes (a), (b) and (d) and even if footnote 7 is not a bar, its release or development must not “fundamentally undermine the purposes (taken together) of the remaining Green Belt across the plan area as whole.” This apparently means that “authorities should consider whether, or the extent to which, the release or development of Green Belt Land would affect the ability of all the remaining Green Belt across the area of the plan from serving all five of the Green Belt purposes in a meaningful way.”

The final steps of determining whether the development would not be inappropriate development, even if it meets the above criteria, are considering:
- whether a development is sustainably located
- whether it would meet the ‘Golden Rules’ contributions (where applicable), and
- whether there is a demonstrable unmet need for the type of development proposed

For the purposes of the inter-relationship between the affordable housing provision “golden rule” and the application of viability testing, we of course still await the updated viability PPG.

I’m running out of time this morning, but briefly now to turn to the decision letters I mentioned.

First of all, the Carrington decision letter dated 17 February 2025 . This followed a written representations appeal against Trafford Council’s refusal of planning permission for a 35MW battery storage facility at Wild Fowl Farm, Carrington. The inspector works through the grey belt tests methodically and concisely and finds that they are all passed.

Secondly, the Beaconsfield decision letter dated 24 February 2025 mentioned in Zack’s blog post. This followed an inquiry in relation to Buckinghamshire Council’s refusal of planning permission for up to 120 dwellings at Broad Lane, Holtspur, Beaconsfield. Again, the inspector works through the various tests, but here finds in his planning judgment that the appeal site strongly contributes to purposes (a) and (b). Accordingly this was inappropriate development so the “very special circumstances test” was to be applied and despite a housing land supply position that was agreed to be “dismal”, the appeal was dismissed (the grounds including findings as to substantial harm to the character and appearance of the area as well as substantial harm to biodiversity).

I agree with Zack that the inspector’s conclusions in relation to purposes (a) and (b) in the Beaconsfield appeal decision are potentially inconsistent with the new advice in the PPG. The PPG is definitely going to move the dial further in favour of release of sites and approval of development proposals.

Let’s take a step back. None of this is theoretical. The whole point of this “grey belt” branding is to secure more development in the green belt, sooner rather than later, on those sites which are least sensitive from the perspective of the traditional purposes for designation of green belt in the first place. I don’t find the tests, particularly in the light of the PPG, particularly challenging to navigate (although, as with so much in relation to planning, ultimately decisions will depend upon the application of human judgement, albeit within the tramlines of the policy guidelines). That is not to say that I don’t have any sympathy for opposite views: for instance this cri de coeur from my Strategic Planning Group compatriot (NB report from our group anticipated this Spring, watch this space) Andrew Wood in his 27 February 2025 blog post Grey Belt: Anti-strategic and wildly over-complicated. But, mindful of that need for development on appropriate sites, sooner rather than later, I don’t agree, and in my experience decision-making in relation to release and development of green belt sites was more of a “black box” process before the introduction of the grey belt.

Simon Ricketts, 2 March 2025

Personal views, et cetera

Some Blue Sky Thinking On Brown Field

MHCLG is seeking responses by 28 February 2025 to its planning reform working paper, Brownfield Passport: Making the Most of Urban Land (22 September 2024). I summarised the paper and set out some of the challenges in my 28 September 2024 blog post Brownfield Passports…To What? When? How?).

It is very difficult to think of a “one size fits all” policy intervention that would achieve what the government is looking for, namely “further action that we could take through the planning system to support the development of brownfield land in urban areas.” The paper “proposes options for a form of ‘brownfield passport’, which would be more specific about the development that should be regarded as acceptable, with the default answer to suitable proposals being a straightforward “yes”. It seeks views in particular on the following questions:

“Could national policy be clearer if it were explicit that development on brownfield land within urban settlements is acceptable unless certain exclusions apply?
What caveats should accompany any general expectation that development on brownfield land within urban settlements is acceptable?
How best can urban areas be identified and defined if this approach is pursued?
Could national policy play a role in setting expectations about the minimum scale of development which should be regarded as acceptable in accessible urban locations?
What parameters could be set for both the scale of development and accessibility?
Could more use be made of design guidance and codes to identify specific forms of development that are acceptable in particular types of urban area?
What sort of areas would be most suited to this approach, and at what geographic scale could such guidance and codes be used?
How could Local Development Orders be best used with these proposals?
Are there any other issues that we should consider if any of these approaches were to be taken forward, in particular to ensure they provide benefits as early as possible?
In addition to streamlining permissions on urban brownfield sites, where else do you consider this type of policy could be explored to support economic growth?”

“Passport” is undoubtedly over-optimistic branding, but I suppose even one of those Easyjet speedy boarding passes would be helpful.

Published after the paper, on 12 December 2024, the final revised version of the NPPF does of course contain a strengthened presumption in favour of brownfield development in paragraph 125 (c):

“Planning policies and decisions should:

(c) give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be approved unless substantial harm would be caused, and support appropriate opportunities to remediate despoiled, degraded, derelict, contaminated or unstable land”

“Substantial weight”; approval “unless substantial harm would be caused”: a strong signal one might think. However, it is interesting to see how the policy has been taken into account by appeal inspectors. Perhaps to state the obvious, it is not a “get out of jail free” card and in any event you do need to make sure you fit within the definition. We have found four examples but you may be aware of others:

Appeal reference APP/L1765/W/24/3344776 – decision letter dated 31 December 2024 dismissing an appeal for the demolition of existing office and ancillary buildings on site, conversion of an existing industrial warehouse and the construction of 9 residential properties in Denmead, Winchester. “…whilst the site comprises previously developed land, I do not find conflict with the substantial weight given within the Framework to the value of using suitable brownfield land within settlements for homes and other identified needs (Paragraph 125 c)) given the countryside location of the site and the market housing nature of the residential development proposed.”

Appeal reference APP/N5090/W/24/3345445 – decision letter dated 15 January 2025 dismissing an appeal for a proposed care home in Barnet. “In addition to outlining the […] benefits of the proposed development, the appellant has drawn my attention to NPPF paragraph 125 c) which states that planning decisions should give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be approved unless substantial harm would be caused, and support appropriate opportunities to remediate despoiled, degraded, derelict, contaminated or unstable land. Furthermore, the appellant has highlighted the removal from the NPPF of what was paragraph 130 in the 2023 NPPF, which made reference to the possibility that significant uplifts in the average density of residential development may be inappropriate if the resulting built form would be wholly out of character with the existing area.” However, the inspector “found that there would be harm to the character and appearance of the area resulting from the proposed development. That harm stems from both the bulk and massing of the proposed development in a sensitive context, but also in relation to the retention of trees along the site’s frontage.”

Appeal reference APP/F2605/W/24/3344783 – decision letter dated 30 January 2025 dismissing an appeal for a single detached dwelling in Breckland. “The appellant has identified that the site, as part of the garden of 1 Sandfield Lane, constitutes brownfield land. The Framework, at paragraph 125 c) states that planning decisions should give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be approved. The site, as identified above, lies outside of any defined development boundary. It does, however, lie within a grouping of buildings focussed around the pedestrian level crossing. However, I have identified that the proposal would rely almost totally on the private car for transport. Thus, the site is not suitable, as it would, through the generation of greenhouse gasses, have an adverse effect on the natural environment.”

Appeal reference APP/W3520/W/24/3352607 – decision letter dated 4 February 2025 dismissing an appeal for 11 dwellings and a commercial unit in Mid Suffolk. “In line with paragraph 125c of the Framework I give the housing, in this context, substantial weight. Although not in a settlement, it is in an accessible location.” However, the “proposal would be contrary to the Council’s spatial strategy with houses of an unacceptable mix, would fail to secure 10% BNG together with appropriate affordable housing, infrastructure requirements, habitat mitigation and has not demonstrated that it would not increase or cause flooding elsewhere. Consequently, it conflicts with the development plan as a whole.”

Given the range of questions raised by MHCLG, what might be additional appropriate interventions look like? Because I’m sure there will need to be various interventions. This is the part where I can plug last week’s Homes for Britain publication, Brownfield Planning Passports: The Fast Track To Growth, sponsored by Berkeley Group, which contains 14 essays with practical ideas from a wide range of public and private sector people (including me, returning to some of the themes of my 5 January 2025 blog post, How About A Five Yearly Review Of The Use Classes Order & GPDO, Starting This Year?). As you prepare your responses by 28 February, do have a read and it may spark some additional, or perhaps better, ideas.

PS I couldn’t mention blue sky without mentioning Blue Sky again. If you’re still looking for a replacement for whatever the present unpleasant tense of Twitter may be, come join. Link here.

Simon Ricketts, 17 February 2025

Personal views, et cetera

It Was The “Rushed And Incoherent” Jibe That Got Me

The House of Lords Built Environment Committee published its conclusions from its inquiry on grey belt on 5 February 2025, by way of a letter from Lord Moylan (its chair until 30 January 2025 since when he has been succeeded by Lord Gascoigne).

The stated purpose of the inquiry, which was commenced in September 2024, was to “to gain a better understanding of what Grey Belt land is, how it can contribute to housing targets and what sustainable Grey Belt development looks like.”

Obviously, this was in the context of the 30 July 2024 draft revised NPPF which introduced the “grey belt” concept, the idea having been specifically part of the Labour Party’s June 2024 manifesto:

“Labour is committed to preserving the green belt which has served England’s towns and cities well over many decades. Under the Conservatives, greenbelt land is regularly released for development but haphazardly and often for speculative housebuilding. Without changing its purpose or general extent, Labour will take a more strategic approach to greenbelt land designation and release to build more homes in the right places. The release of lower quality ‘grey belt’ land will be prioritised and we will introduce ‘golden rules’ to ensure development benefits communities and nature.”

The party had of course been floating the proposal well before that (eg my 20 April 2024 blog post Labour’s Green Belt Grey Areas/Sadiq Khan’s London Manifesto).

The proposals in the draft July NPPF have since been refined but I had summarised them in my 2 August 2024 blog post 50 Shades of Grey Belt. The final version of the NPPF was of course published on 12 December 2024. Links to the various relevant documents are set out in my 14 December 2024 blog post I Love It When A National Planning Policy Framework Comes Together and Zack Simons posted a brilliantly readable blog post if you don’t simply want to read section 13 of the NPPF and the definition of “grey belt” contained in its glossary.

We still await updated planning practice guidance green belt and on the identification of grey belt (expected this month) and on viability assessment (relevant to the application of the so-called green belt golden rules).

The Built Environment Committee inquiry was an important opportunity to review the “grey belt” refinement to existing green belt policy, in the context of government’s objective: (quoting from that manifesto) to “get Britain building again, creating jobs across England, with 1.5 million new homes over the … parliament” whilst not changing the “purpose or general extent” of green belt. This was a chance to recommend some improvements to its formulation and operation.

In my view that opportunity was missed, in favour of some political point scoring (Labour peers being in a minority on the Committee). Here are the Committee’s main conclusions:

“The fact that the NPPF has been finalised at the same time as so many other complementary and interconnected policies are being developed raises significant concerns about the extent to which we can be confident that any of the individual policies contained within the NPPF will be successful. This is particularly the case for grey belt land, the benefits of which we now believe will be marginal, at best. Moreover, in the absence of any clear understanding of how the success of the policy will be measured or monitored, we cannot see how the policy can be implemented or developed in a robust and coherent way.

Ultimately, our assessment is that the grey belt policy has been implemented in a somewhat rushed and incoherent manner, and we do not believe that it is likely to have any significant or lasting impact on planning decision-making or on achieving your target of 1.5 million new homes by the end of this Parliament.”

Surely any proper examination of the issues should have started with a reflection on the operation of green belt policy itself prior to the introduction of the grey belt concept; its ad hoc, unplanned, growth both in extent and purposes and its incoherence in terms of the public’s conception of it as serving more than as a means of containing urban growth but as an indicator of environmental or landscape quality. That examination could have considered the subjective and politised nature of the existing tests in policy – the requirement for “exceptional circumstances” to justify release by way of local plans and “very special circumstances” to justify planning permission for so called inappropriate development.

Against that background and the Government’s various commitments flowing from that manifesto (including the reintroduction of strategic planning) it is a bit rich for the Committee to be complaining at the pace and extent of policy change! Whether you support individual policies or not, many will regard the business-like and speedy delivery by MHCLG, largely without surprises or u-turns, of what was promised as a breath of fresh air after previous regimes (remembering the instant dismantling by Eric Pickles in 2010 of regional planning with nothing in its place) or the constant yo-yoing of recent years: The 2020 Planning White Paper left to wither on the vine, followed by the Gove-led, changed priorities, December 2022 draft NPPF, only finalised a full twelve months later (despite Spring 2023 having been the promised publication date). And were any of the policy changes “robust and coherent”? Hmm.

Yes we still do not have a fully coherent system for determining what land should be released from the green belt, but I would argue that we now have more coherence than simply relying on those “exceptional circumstances” and “very special circumstances” tests. We’re also dealing with revisions to a policy which itself is incoherent, within a planning system which is incoherent. Against a pressing national need for homes and economic development, I suppose the choice is between “rushed and incoherent” or “delayed and incoherent”; you takes your choice.

It seems that part of the Committee’s thinking as to why the concept of “grey belt” is “largely redundant” (to use its own words) is that “more significant changes to other aspects of the NPPF…will be likely to result in Green Belt land being released through existing channels instead”, by way of green belt reviews via local plans and in due course spatial development strategies. If that turns out to be the case in the longer term, that is surely a good outcome. But the harder edged function of the concept in the meantime is to enable a consenting outlet that is not dependent on the much more uncertain “very special circumstances” test, where there is need that is not being accommodated in accordance with up to date plans and where delivery is falling short.

One only has to see (James Maurici KC’s LinkedIn posts are my usual source but you will no doubt have your own) the stream of appeal decision letters emanating from the Planning Inspectorate to have a sense of how often schemes are being promoted at present on the basis that they fall within the definition of “grey belt”, with “very special circumstances” as the fall-back, with many of those appeals being allowed. Surely, this has been exactly the sort of policy intervention that has been needed, albeit of course no overall panacea.

I have one final point to make in what has turned out to be a mini-rant, for which apologies (and of course I look forward to the happy sound of my phone buzzing as your rebuttal comments come in). I corrected Lord Moylan when I gave evidence to the Committee on 29 October 2024 and to my surprise at the time he appeared to be under the assumption that grey belt policy is only relevant to residential development. This was the exchange:

“The Chair: Take an old abandoned industrial site inside the green belt. There could be strong arguments that a proper and effective use would be as a new industrial site. This policy is focused entirely on housing. Are you saying that you could still apply for that to be a new industrial site, but you would have to use the very special circumstances route to do so; grey belt simply would not apply to that?

Simon Ricketts: No. In fact, grey belt applies to commercial development as well as to residential development. It is a great problem with discussion about the planning system at the moment that everything is about housing. Allowing for logistics, industrial, life sciences and other development is just as important. The draft policy says that “housing, commercial and other development in the Green Belt should not be regarded as inappropriate where … “, and then sets out the criteria for grey belt that I have previously indicated.

There is a problem in that, if you are bringing forward housing development, it is easy to see whether there is an unmet housing need, because you apply the methodology that is in the public domain. However, in relation to commercial development, you have to show that “there is a demonstrable need for land to be released for development of local, regional or national importance”. There is no real guidance as to what the methodology would be for demonstrating that.

The Chair: That is under the very special circumstances test, or under the grey-belt test.

Simon Ricketts: Under the grey-belt test, if you consider that there is an unmet need for logistics development in your area and there is a piece of green belt that you consider to be grey belt because it makes a limited contribution to the purposes of the green belt, you can apply for planning permission if you can show that there is a demonstrable need for that land to be released for that form of development. That is inevitably more complicated than when you are dealing with housing development, because you will need to arrive at the right methodology.

The Chair: But it would be doable.

Simon Ricketts: Yes, absolutely.

The Chair: So it is perfectly possible that the grey-belt route could be used for non-housing development.

Simon Ricketts: Yes.”

Notwithstanding this exchange, is there anything in his letter to the Secretary of State which makes any reference whatsoever about anything other than housing? Nope.

Simon Ricketts, 8 February 2025

Personal views, et cetera

I realised I’m currently wearing just the right t-shirt this morning.

Growth Mindset

Do you have a growth mindset? It’s increasingly a challenge just to keep up but, if we don’t, who will? Today’s blog post does no more than try to keep track of some of the latest announcements.

Does the government have a growth mindset? Well, if “growth” isn’t written in big letters on a white board in the Cabinet Room I’ll be surprised.

In terms of planning reforms, the current pace and focus is growth, growth, growth.

Before Christmas the latest version of the NPPF (see my 14 December 2024 blog post I Love It When A National Planning Policy Framework Comes Together), proposals in relation to local government reform (together with strategic planning) and CPO compensation changes (both covered in my 21 December 2024 blog post And Now Take A Deep Breath… ).

Then changes to judicial review procedure in relation to nationally significant infrastructure projects (see my 25 January 2025 blog post DCO JR Changes, #silkyplanoraks).

Finally, last week we had:

HM Treasury’s 10 year infrastructure strategy working paper (27 January 2025)

MHCLG’s Planning Reform Working Paper: Streamlining Infrastructure Planning (26 January 2025)

The Chancellor’s speech , headlined “Chancellor vows to go further and faster to kickstart economic growth”.

The Chancellor’s speech was certainly a very clear mood board as to where she (“I have been genuinely shocked about how slow our planning system is”) and the government are at. In fact it was a smogasbord of specific announcements (listed in Nicola Gooch’s excellent 1 February 2025 blog post) including

delivery of the Lower Thames Crossing (ahead of any formal decision in relation to the current DCO application…)

measures to unlock the potential of the Oxford-Cambridge growth corridor (noting that there have already been “18 submissions for sizeable new developments” along the route of the East West Rail project) and

(the focus of much media attention) support for a third runway at Heathrow.

Stating the obvious, all of these measures will only work with both (1) a sufficiently stable economy and political environment as a basis for business to make long-term investment decisions (Heathrow’s owner will no doubt be deciding whether finally to press the button on the application process, assessing how long-term this political commitment is likely to be and whether the changes announced to DCO and judicial review procedures have gone far enough in practice to avoid another quagmire of legal challenges) and (2) with the necessary resources and experience available to local authorities, the Planning Inspectorate and statutory consultees. And in addition, another reason why “our planning system is so slow” is because there are always fresh legal pitfalls to avoid (eg see Campaigners hail “important victory” in protection of England’s national parks (Guardian, 1 February 2025).

Of course, there are always calls for the government to go even further. Someone brought to my attention Times’ columnist Emma Duncan’s piece this week, Time for Starmer to cut out the planning lawyers, which ends “What Reeves is doing to the bats she now needs to do to the planning lawyers”. No more living in a £100 million bat tunnel for me. 😥

Simon Ricketts. 2 February 2025

Personal views, et cetera

DCO JR Changes, #silkyplanoraks

Congratulations to those in our planning world who have been recommended to be appointed as King’s Counsel in the latest round – Zack Simons (presumably now #silkyplanoraks), Sasha Blackmore and Harriet Townsend.

It occurs to me that belated congratulations are also due to Sarah Sackman KC MP, who many of us know primarily as a superb planning and public law advocate, first at Francis Taylor Building and then Matrix Chambers, but who of course became MP for Finchley and Golders Green in July 2024. She took silk on being appointed as Solicitor General on entering the House of Commons and since 2 December 2024 has been Minister of State in the Ministry of Justice.

I mention Sarah’s background because it is important: we have one of our own, who understands the practical nuances of planning and public law and the operations of the judicial review process, at the heart of government.

There has been much press attention this week on the Prime Minister’s announcement on 23 January 2024, Prime Minister clears path to get Britain building as to changes to be made to procedures governing legal changes of development consent order decisions in relation to nationally significant infrastructure projects, following first the report by Lord Banner KC and subsequent consultation that I summarised in my 28 October 2024 blog post Banner Review Into Legal Challenges of NSIPs.

However, the proposals themselves were announced in more detail in a written statement to the House of Commons that day by Sarah Sackman: Infrastructure Planning and Judicial Review Reform. Working through that statement, first of all the background is set out:

“The delivery of major infrastructure projects is central to the Government’s mission to drive growth and unlock clean power. The largest and most complex of these projects currently require a Development Consent Order (DCO) under the Nationally Significant Infrastructure Projects (NSIPs) regime established by the Planning Act 2008.

The number of legal challenges against DCOs has spiked in recent years, with 58% of decisions being subject to legal challenge. Delays to these major projects have serious implications, including holding back the delivery of essential benefits to the country and imposing considerable additional costs on development.

Despite 30 challenges being brought against major infrastructure projects, only four decisions to approve a project have been overturned by the courts. It comes as research shows that, on average, each legal challenge takes 1.4 years to reach a conclusion and the courts have spent over 10,000 working days handling these cases. Such cases impact upon the use of public money, with major road projects paying up to £121 million per scheme due to delays in legal proceedings. Whilst it is fundamental that the public can challenge the lawfulness of government decisions, there is scope for rebalancing the judicial review process to improve efficiency and reduce delays to NSIPs.”

Few of us would disagree with this.

The statement then sets out the specific changes that are to be introduced in relation to claims for judicial review in relation to DCOs:

Once the claim is made, there will not be an initial High Court stage where a judge considers “on the papers” whether the case is arguable, instead the issue of arguability and as to whether the case should proceed to a full hearing will be considered by a judge at a short hearing. (This is already the case in relation to applications to challenge inspectors’ decision letters in relation to enforcement notice appeals under section 289 of the Town and Country Planning Act 1990, where indeed there is no subsequent right to apply to the Court of Appeal for permission to proceed if the High Court judge finds the challenge to be unarguable,. Indeed, the deadline for bringing such challenges is four rather than six weeks!).

This change follows Lord Banner’s recommendation. The government’s consultation paper had floated the possibility of extending the change to all judicial reviews but this week’s announcement is entirely limited to DCO judicial reviews.

If the judge at that short permission hearing deems the case to be “totally without merit” (i.e. bound to fail), it will not be possible to ask the Court of Appeal to reconsider. At present if the judge considers “on the papers“ that a case is totally without merit, the claimant cannot renew its application for permission before a judge at a short hearing, but can only appeal to a Court of Appeal judge who will determine the appeal on the papers. So, there will be one bite at the cherry – at a short hearing before a High Court judge – rather than two paper stages with no hearing. Given that “totally without merit” grounds are not difficult to identify, is this really very radical?

“non-mandatory” case management conferences will be introduced – sensible and reflecting one of Lord Banner’s recommendations.

All DCO judicial reviews will be designated as significant planning law claims. This is important because specific timescale targets then apply at the High Court stage (not the Court of Appeal) as to how speedily they should be dealt with. However, the issue is somewhat academic given that according to Lord Banner’s report all DCO judicial reviews to date have in practice been treated as significant planning law claims!

The government will “work with the judiciary to introduce target timescales for NSIP judicial reviews in the Court of Appeal and in the Supreme Court”. Given the delays that do happen at these later stage this would be very welcome.

Unsurprisingly the announcement has generated flak on the one hand from those who see the changes as reducing access to justice (see e.g. the Law Society’s position, Society counsels caution over JR curbs (25 January 2025), with comments from Law Society president Richard Atkinson that “Removing the paper permission stage could increase both the cost and length of permission hearings”. “‘It is possible that the certainty of higher costs – especially so early in the case, before permission is even granted – could discourage a claimant to the extent that it raises concerns for access to justice”. “Requiring oral hearings for all permission applications may also lengthen these proceedings, as it prevents those that could be easily dealt with from progressing more quickly.”) and on the other hand from those primarily acting for promoters who see the measures as not going far enough (see e.g. Judicial review reform ‘one step’ to enabling UK infrastructure development (24 January 2025) where infrastructure planning law guru Robbie Owen is quoted as saying that “these changes to judicial review are a step in the right direction but they are relatively minor and do not move the dial nearly enough. The government should be providing for any nationally significant infrastructure project that is a critical national priority to be immune from judicial review altogether, by the DCO for the project being confirmed by parliament through a one clause bill after it has been through the DCO process successfully”)

I don’t agree with either extreme. Mr Atkinson is wrong in what he says: any judicial review claimant at the moment needs to factor in the likely need for a permission hearing in any event (of the 27 challenges determined at the time of the Banner report, only 7 had received permission on the papers – and only 2 did not renew after being refused on the papers. 8 proceeded to a full or rolled-up hearing in any event). Robbie’s approach in my view goes too far the other way and takes away the necessary backstop that is needed by way of judicial review.

However, I do think there is more that could be done by way of changes in due course, in some cases not limited to DCO judicial reviews:

Why not reduce the challenge deadline for DCO judicial reviews from six weeks to four weeks, but at the same time take the opportunity to rectify the issue frequently arising on statutory challenges of all kinds as regards the current need to serve on the parties within that period, by allowing claimants seven days to serve on the defendant and interested parties, after the claim has been filed? By the time the DCO decision has been issued, any claimant will have been engaged for a long time in the process and will have secured access to legal advice. All that remains to be scrutinised is the Secretary of State’s reasoning for the decision – follow the precedent set in the case of enforcement notice appeals.

In the case of non DCO judicial reviews within the remit of the Planning Court, tighten up the requirement for pre-action protocol letters, such that the guidance makes clear that they should be sent as soon as grounds for potential judicial review are considered by a potential claimant to arise, for instance when a local planning authority has resolved to grant planning permission but ahead of the permission being issued. Presently, most potential claimants store up their potential grounds of challenge until the permission has been issued and there is nothing in practice that the local planning authority can do to remedy the position even if it accepts the position set out in the PAP letter. There could be the warning that non-compliance with this guidance may be taken into account in decisions as to the award of costs and as to cost-capping.

Much litigation in this field nowadays is crowdfunded. The Government might give thought as to whether greater controls are required as to the use of crowdfunding in relation to litigation and particularly whether sufficient information is given to potential contributors as to the precise nature of the action contemplated, its prospects of success and the implications of a successful outcome (i.e. usually simply resulting in redetermination) and how funds are used if no action is lodged.

More information should be made available by the courts, particularly the orders made at permission stage so as to inform decisions taken by subsequent claimants and as to the High Court’s and Court of Appeal’s performance as against timescale targets.

Lastly, what possible basis is there for not extending the changes announced to cover legal challenges to the adoption of local plans and in due course spatial development strategies?

There is always a need for judicial overview of decision making. But there is also always a need for speed – justice delayed is justice denied. Bridget Rosewell’s review was an important catalyst for improvement in relation to the Planning Inspectorate’s administration of planning appeal inquiries, at no cost to the quality or fairness of the process itself. The DCO judicial review changes announced this week to my mind are in a similar vein, although I do agree with Robbie that they are relatively minor. Let’s not give up looking for those incremental gains.

Simon Ricketts, 25 January 2025

Personal views, et cetera

Viva La Devolution!

Perhaps it’s more like revolution, certainly rapid evolution, and possibly even in some respects the reverse of devolution…

In my 21 December 2024 blog post And Now Take A Deep Breath… I set out what there was in the 16 December 2024 English Devolution White Paper as to the proposed introduction of spatial development strategies across the whole of the country by the end of this Parliament with which local plans will need to be in general conformity. Aside from setting minimum housing requirements for each member authority, SDSs will identify infrastructure needs and strategic locations for development, presumably including where appropriate high level reviews of green belt boundaries.

SDSs will be produced by strategic authorities and in some instances, to begin with, other groupings of local authorities directed by the Secretary of State via powers to be included in the Planning and Infrastructure Bill which is to be published in March.

Strategic authorities will fall into one of two categories:

“Foundation Strategic Authorities: these include non-mayoral combined authorities and combined county authorities automatically, and any local authority designated as a Strategic Authority without a Mayor.
Mayoral Strategic Authorities: the Greater London Authority, all Mayoral Combined Authorities and all Mayoral Combined County Authorities will automatically begin as Mayoral Strategic Authorities. Those who meet specified eligibility criteria may be designated as Established Mayoral Strategic Authorities. This unlocks further devolution, most notably an Integrated Settlement.

The government’s strong preference is for partnerships that bring more than one local authority together over a large geography. In exceptional circumstances the Secretary of State will have the power to designate an individual local authority as a Foundation Strategic Authority only. Our ambition remains for all parts of England to ultimately have a Mayoral (and eventually Established Mayoral) Strategic Authority.”

Much of the detail is yet to emerge, for instance:

What will be the necessary evidence base to support these SDSs and how will they be examined and will there be a refined version of the current “soundness” test?
Will SDSs have to divide out for the constituent member authorities as minimum housing requirements the collective total local housing need for the SDS area and will each local plan need to accept that figure as its minimum housing target?
What will be the tramlines as to what may, must and must not and may be included in SDSs?
How will internal political differences between member authorities be contained where real tensions arise over, for instance, the allocation of housing numbers?
How and to what extent will strategic authorities be required to coordinate with their neighbours?

Of course, core to the government’s reform proposals is not just the universal coverage of the country by strategic authorities (the default assumption being for each to have a combined population of 1.5 million or above), but, below that level, unitary rather than two tier authorities:

“We will expect all two tier areas and smaller or failing unitaries to develop proposals for reorganisation. We will take a phased approach to delivery, taking into account where reorganisation can unlock devolution, where areas are keen to proceed at pace or where it can help address wider failings. However, we are clear that reorganisation should not delay devolution and plans for both should be complementary.

New unitary councils must be the right size to achieve efficiencies, improve capacity and withstand financial shocks. For most areas this will mean creating councils with a population of 500,000 or more, but there may be exceptions to ensure new structures make sense for an area, including for devolution, and decisions will be on a case-by-case basis.”

In terms of the creation of strategic authorities, many councils have already expressed interest in becoming part of the Government’s Devolution Priority Programme, which is for areas wishing to pursue establishment of a Mayoral Strategic Authority. This will be with a view to inaugural mayoral elections in May 2026. The Local Government Association has published a list.

What could this all mean in terms of what the areas will be for SDSs? Catriona Riddell yesterday posted her current understanding as below:

In terms of the move towards unitary authorities, local government minister Jim McMahon wrote to two tier authorities on 16 December 2024:

“As set out in the White Paper, new unitary councils must be the right size to achieve efficiencies, improve capacity and withstand financial shocks. For most areas, this will mean creating councils with a population of 500,000 or more. However, there may be exceptions to ensure new structures make sense for an area, including on devolution.”

“We will take a phased approach and expect to deliver new unitary authorities in April 2027 and 2028.”

“I have heard from some areas that the timing of elections affects their planning for devolution, particularly alongside reorganisation. To help manage these demands, alongside our objectives on devolution, and subject to meeting the timetable outlined in this letter, I am minded-to lay secondary legislation to postpone local council elections from May 2025 to May 2026.

However, I will only do this where this will help the area to deliver both reorganisation and devolution to the most ambitious timeframe – either through the Devolution Priority Programme or where reorganisation is necessary to unlock devolution or open up new devolution options.”

“To lay the relevant legislation to postpone elections, I will need a clear commitment to devolution and reorganisation aims from upper-tier councils in an area, including a request from the council/s whose election is to be postponed, on or before Friday 10 January.”

Again, the Local Government Association’s list is helpful – of counties and unitaries which have made requests, involving postponing their election from 2025 to 2026.

Whilst the government’s advice is that none of this should slow down current local plan making it is going to be interesting to see what transpires – and the local political implications more generally of postponed elections (who knows, perhaps the potential for longer term decision making?).

The pace of change ahead of publication of either the Planning and Infrastructure Bill or the English Devolution Bill is certainly impressive.

There’s an interesting quote from Arthur C Clarke about revolution – and possibly it extends to devolution as well:

“Every revolutionary idea seems to evoke three stages of reaction. They may be summed up by the phrases: (1) It’s completely impossible. (2) It’s possible, but it’s not worth doing. (3) I said it was a good idea all along.”

Simon Ricketts, 18 January 2025

Personal views, et cetera

Is The London Mayor Doing Enough In Practice To Accelerate Housing Delivery?

Congratulations Sir Sadiq Khan, Mayor of London, and Christopher Katkowski CBE KC on your respective new year’s honours.

CK CBE KC of course led work on a report published in January 2024 for the last government which considered any changes to the London Plan which might facilitate housing delivery on brownfield sites in London. The report lays bare the undersupply of new homes in London, which has not kept pace with increases in jobs, population and housing demand.

Sir SK’s Greater London Authority published on 19 December 2024 Accelerating Housing Delivery: Planning and Housing Practice Note. I summarise the document later in this post and would welcome reactions as to whether the document – non-statutory, intended as practical guidance and a material consideration in the determination of planning applications and, in part, renegotiation of existing section 106 agreements – really goes far enough, given where we currently are.

The need for additional housing in London, at all price points, both subsidised (“affordable”) housing and general market housing, has never been more acute. It is in fact much worse now than when CK CBE KC wrote that report. The statistics back that up, with planning approvals and housing starts both down sharply last year.

Annual housing completions have been falling short of the policy target in the 2021 London Plan of 522,870 net housing completions from (2019/20 -2028/29). Everyone knows that the viability position for developers is increasingly difficult, faced with build cost inflation, high interest rates and the costs and uncertainty of, for example, additional building safety requirements. Similarly everyone knows that there is an absence of registered providers willing to take on the affordable housing, leading to stalled schemes (a national problem – see the HBF’s December 2024 press statement 17,000 Affordable Homes stalled by lack of bids from Housing Associations and accompanying report).

We have the London Plan’s 50% affordable housing requirement – and with a relatively rigid and formulaic system of early stage and late stage viability review mechanisms where that cannot be met (the late stage review not being required where the “fast track” applies, i.e. if the developer commits to at least 35% affordable housing – 50% on industrial or public sector land), all in accordance with London Plan Guidance on affordable housing and on development viability which have remained in draft since May 2023.

Before we look at the practice note, let’s see what some of the evidence is saying, for instance the GLA’s own November 2024 document, Housing in London 2024: The evidence base for the London Housing Strategy (the charts referred to are here):

“London is home to both the fastest and slowest-growing local housing stocks in England. The number of homes in Kensington and Chelsea grew by 2% over the last decade, compared to 26% in Tower Hamlets (chart 2.1). Using data on new Energy Performance Certificates to track completions of new homes, it looks like new supply in 2024 is following the trend of 2022 and 2023, two of the lowest years in the last five years (chart 2.2).

The quarterly number of planning approvals is falling, and they are concentrated on fewer, larger sites (chart 2.4). Increasing construction on small sites might be key to increasing overall delivery, with 65,000 new build homes completed on small sites between 2012/ 13 and 2021/ 22 (chart 2.3). Sales of new market homes in London peaked in 2022 and then fell considerably, partly due to lower demand from Build to Rent (BTR) providers and the end of Help to Buy (chart 2.6). The BTR sector, which completed 44,585 new homes in London between 2009 and 2023 is nevertheless still growing (chart 2.7).

38% of homes and 46% of habitable rooms recommended for approval by the Mayor in 2023 were affordable, with both of these figures a record high (chart 2.5). Affordable housing starts funded by the GLA fell sharply between 2022/ 23 and 2023/ 24 (charts 2.8 and 2.9), as registered providers and local authorities have diverted resources away from new supply in response to increased remediation and refurbishment costs and the costs of adapting to changing regulations. Completions are also down, but not as much. Of the affordable homes started with GLA support in 2023/ 24, 72% were for social rent. Affordable completions from all funding sources also rose to a recent high of 15,768 in 2022/ 23 (chart 2.10), with data for 2023/ 24 not yet available.

Social housing landlords in London owned just under 800,000 affordable homes for rent in 2023, the highest total since 2002 (chart 2.12). Sales of council homes through the Right to Buy (RTB) scheme have been on a downward trend since their peak in the 1980s, totalling 1,080 in 2023/ 24 (chart 2.11).

Council tax data showed that 2.3% of homes in London were empty in 2023, with only 1% empty longer than 6 months (chart 2.13). These are much lower levels than in the 1980s and 90s, when around 5% of homes used to be empty.

1.34 million homes in London, or 36% of its stock were leasehold homes in 2022/ 23, over half of which were privately rented (chart 2.15). In 2023, there were 22,770 homes in multiple occupation (HMOs) with mandatory licences in London. This is the highest of any region (chart 2.14).”

This is chart 2.8 referred to in that text:

This is an extract from chart 2.4, showing the annualised trend per quarter in the number of new homes approved, and the number of projects:

Ahead of the awaited review of the London Plan, what can be done? The sorts of specific, practical, issues that currently come up again and again relate to the operation of the viability review mechanisms in particular. Since the new Building Safety Act regime came into force on 1 October 2023 the early stage review mechanism, kicking in if substantial implementation (usually defined as construction of the foundations and ground or first floor) hasn’t taken place within two years of permission, is increasingly unworkable for higher-risk buildings given how long the gateway two stage is taking in practice. The contingent liability that the late stage review mechanism represents is unattractive in principle to funders, which is a big challenge in a weak market.

For measures that could have had an immediate positive impact, what about, for instance, introducing suitable flexibility into the triggering of the early stage review? Potentially a temporary “holiday” from the late stage review for schemes that committed to proceed to completion within an agreed timescale? A willingness to accept renegotiation of section 106 agreements on schemes which are now unviable? Some pragmatism as to commuted payments towards off-site delivery where a registered provider cannot be found?

Whilst the document does include some measures which may help at the margins, there’s certainly no “big bang” of that nature. It is in fact curious how little fanfare the practice note has been given. I can’t even find it on the GLA website, let alone any press release. Nor was any formal consultation or indeed feedback invited.

Anthony Lee at BNP Paribas did this good summary on LinkedIn before Christmas but I have seen little else.

I draw out some of the measures as follows:

Allowing the fast track threshold to be reduced, both for new and current applications and also for consented schemes, where the tenure split provides proportionately more social rent than the policy requirement, in accordance with a formula that appears to seek to avoid any financial advantage to the developer in so doing – the only advantage being if that unlocks more GLA funding and/or more willingness on the part of registered providers.

Estate regeneration schemes will be able to qualify for the “fast track” if at least 50% of the additional housing will be delivered as affordable.

The GLA will consider accepting supported housing and accommodation for homeless households, with nomination rights for the relevant borough, as a like for like alternative for intermediate housing, again both for new and current applications and also for consented schemes.

The cost of any meanwhile accommodation for homeless households, with nomination rights given to the relevant borough, may be taken into account in the operation of viability review mechanisms.

With the late stage review, the developer currently retains 40% of any surplus profit. In certain circumstances this can now increase to 70%. However, the criteria are tight. “To qualify for this, the application must provide at least 25 per cent onsite affordable housing by habitable room for schemes with a 35 per cent threshold, and 35 per cent onsite for schemes with a 50 per cent threshold, at the relevant local plan tenure split, and be certified as reaching practical completion within three years of the date of this document.” “For larger phased schemes that provide at least 25 per cent affordable housing across the scheme as a whole that are granted planning permission after the date of this practice note, if the initial or a subsequent phase is certified as reaching practical completion within three years of the date of this document, the GLA will consider allowing the applicant to retain 70 per cent of any surplus profit identified in that phase when the late review is undertaken. The relevant phase must include at least 100 residential units.”

There is this enigmatic sentence: “The GLA will also work with boroughs to identify sites that have been allocated for development or that have been granted consent but that have not come forward for development for many years, or where limited progress has been made, and will assess the nature of interventions required to facilitate this.”

Great flexibility is announced as to the permissible inputs into review mechanisms. The formulae currently focus on changes in gross development value and build costs. “However, in some cases it may be more appropriate to allow for a full viability review to be undertaken which reconsiders all development values and a greater scope of development costs, including professional fees and finance costs.”

The Mayor’s housing design guidance should not be applied mechanistically, in relation to, for instance, the reference to the need to submit “fully furnished internal floorplans” and the objective that new homes should be dual aspect.

Various grant funding measures but I’ll look to others to comment as to the extent they will move the dial.

Thoughts?

Simon Ricketts, 11 January 2025

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