simonicity

The Perfect KISS

I’m preparing to speak at a couple of events at UKREiif this week, I’m trying to finish reading a book, I’m pleased that the Strategic Planning Group’s report Planning Positively for the Future has now been published (16 May 2025) and I’ve been dipping into the Mayor of London’s Towards a New London Plan consultation document (9 May 2025)

And the over-arching theme for me is Keep It Simple, Stupid.

The book is Abundance: How We Build A Better Future by Ezra Klein and Derek Thompson. A few people have mentioned it but what caused me finally to reach for my wallet was when Strategic Land Group’s Paul Smith recommended it on a 50 Shades of Planning podcast – he’s a good reader is Paul.

You might get the basic ideas from this Guardian review from which I quote the following passages:

Abundance for all of us, via an entirely possible techno-optimistic “future is behind schedule – and Abundance holds late 20th‑century liberalism responsible. (Klein and Thompson critique the right, too – they are themselves liberals – but this book speaks only to their co-partisans, with the downside of artificially telling just half the story). Liberals, Klein and Thompson say, nobly fought to redistribute what we have to those without, while losing sight of the goal of creating more to redistribute in the first place. Meanwhile, they sought to protect the public from the unchecked consequences of growth: the bulldozers of urban renewal and the pollution of industrialisation. They succeeded, but left the state too constrained to solve the challenges of today.”

“For example, they tell how California began studying high-speed rail, a clean and congestion-free alternative to cars and planes, more than 40 years ago. It took a decade for planning to begin in earnest; another decade-and-a-half to get funded; 16 years after that, it still doesn’t exist. High-speed rail has been swallowed by procedures erected to prevent every conceivable harm to every conceivable stakeholder. The environmental reviews needed just to describe the project’s impacts began in 2012; they still aren’t done. All the while, costs keep increasing.”

“In everything from planning regimes that block badly needed housing and solar farms, to the ossified processes for writing federal regulations and hiring civil servants, they see systems attuned to the harms of action and not its benefits, and convincingly argue that the rewards of reform are immense.”

“Klein and Thompson’s story of sclerosis is of a “system so consumed trying to balance its manifold interests that it can no longer perceive what is in the public’s interest.”

The sorry story of the Californian High Speed Rail project reads across precisely to HS2 and the book’s description of the sometimes-unintended sometimes-intended obstacles to housing development and green energy projects in many US states are only too familiar here.

The book makes a telling point about how “a complex society begins to reward those who can best navigate complexity”. Doesn’t that apply to many of us at UKREiif – not really a conference about how to build, but rather a conference about navigating the regulatory and other complexities to be sorted before anyone gets near an actual construction contract?

And, uncomfortable for me and other lawyers (already well rewarded for navigating complexity), there’s much in addition about the dead hand of “adversarial legalism”.

The KISS mantra was certainly front of mind for me when I was participating as the only lawyer member of the Strategic Planning Group. In designing for the reintroduction of strategic planning, via spatial development strategies, how to reduce the scope for mission creep in the documents, how to reduce ambiguity, duplication and delay, and how to arrive at a proportionate evidence base and examination process. Developing the 17 recommendations in the report was a superb, thoughtful but practical project, by way of six half day workshops and much work by chair Catriona Riddell and by the Prior + Partners team between the sessions and in writing it all up. Do let us know what you think.

I hope that once the National Development Management Strategies take shape we have a much more logical and non-duplicative cascade of NDMPs, SDSs, local plans and neighbourhood plans with as little duplication, gold plating and unnecessary text as possible – and that one day soon the whole cascade will be available at the click of a button in relation to any site. Will we get there or, as a “complex society”, is simplicity beyond us?

The London Plan is of course an awkward example of a spatial development strategy. This is not what the new breed of SDSs should look and feel like at all. Indeed, my personal vision is that the key diagram for an SDS should tell the main story, as to broad locations for strategic growth, infrastructure and the scale of housing development required in local plan areas. With previous iterations of the London Plan being so all-encompassing, is it really possible for the next version to be radically stripped back? I doubt it. But if it is not to be, could we at least avoid London Plan policies being duplicated (often in slightly different terms) and gold-plated in boroughs’ local plans? If a trade-off for the scale of the London Plan were to be much shorter borough plans that would be something. It will also be interesting to see what the new regime of NDMPs will mean for the London Plan.

Maybe see you in Leeds, KISS KISS.

Simon Ricketts, 18 May 2025

Personal views, et cetera

Nature Recovery Position

Part 3 of the Planning and Infrastructure Bill is possibly facing the most criticism. Do its provisions with regard to the preparation of environmental delivery plans, enabling a nature restoration levy to be set which is to be paid by developers in lieu of some of the site-specific assessment and mitigation measures they currently have to carry out, go too far and amount to a regression in environmental protection?

First, as a way into the issues, I do recommend my colleague Susannah Herbert’s summary and initial critique of the provisions published the week that the Bill was introduced into Parliament: PI Bill Guest Post – Some Early Thoughts On The Bill’s Nature Recovery Provisions (13 March 2025)

The government has published a fact sheet. It summarises the five key phases of the nature recovery fund as follows:

Framing the EDP – EDPs will define the environmental impacts they cover, such as nutrient pollution or the impact development might have on a protected species. EDPs will be spatially specific with clear maps setting out where development is covered by an EDP and what scale of development the EDP can support.
Designing the measures – EDPs will set out the suite of conservation measures that will be deployed to more than address the impact of development across a given area. For example, an EDP covering nutrient pollution will set out how the combined effect of the conservation measures will go beyond the current expectations of nutrient neutrality and lead to an improvement in water quality.
Setting the levy rate – A simple charging schedule, sufficient to cover the costs of the conservation measures, will be payable by developers to meet the relevant legal obligation associated with the impacts addressed by the EDP.
Consultation and approval – in developing an EDP, Natural England will benefit from views captured through consultation before the EDP is submitted to the Secretary of State for approval. When considering the EDP, the Secretary of State will be bound by a new legal test to ensure that the conservation measures outweigh the negative effect of development.
Delivering on the EDP – once the EDP is in place, Natural England will the necessary powers to use funds collected to implement the conservation measures. They will then monitor the impact of the measures to ensure they are working as expected and make any amendments to the EDP that may be necessary.

The Bill is currently at Committee stage. Marian Spain, chief executive of Natural England, gave evidence on 24 April 2025, supportive of the proposals in the Bill. However, there are many who are expressing concern.

Instructed by NatureSpace Partnership, which delivers strategic licensing in relation to great crested newts and other species, David Elvin KC has provided a masterly and detailed (45 page) opinion dated 23 April 2025. He concludes that the proposals as they currently stand would amount to a weakening or reduction in current levels of environmental protection: the proposed test of “overall improvement” in environmental protection is “lax” and “generalised”.

The Office for Environmental Protection’s advice to the government on the Bill (2 May 2025) echoes this concern: The OEP is “concerned by several aspects of the bill which undermine its potential to deliver intended win-win outcomes. We recognise that the EDP system is intended to be a different approach, not a direct comparator to existing environmental law. There are, though, fewer protections for nature written into the bill than there are under that existing law. Creating new flexibility without sufficient legal safeguards could see environmental outcomes lessened over time. And aiming to improve environmental outcomes overall, whilst laudable, is not the same as maintaining in law high levels of protection for specific habitats and species.

In our considered view, the bill would have the effect of reducing the level of environmental protection provided for by existing environmental law. As drafted, the provisions are a regression. This is particularly so for England’s most important wildlife – those habitats and species protected under the Habitats Regulations.

We summarise two particular concerns below, and provide further detail on these matters and other aspects of the bill in the annex to this letter.

A principal area of concern lies with the framing of the bill’s ‘overall improvement test’ for adopting EDPs. This test rests on a balancing exercise to decide whether negative environmental effects of development are likely to be outweighed by conservation measures taken under an EDP. As drafted at the moment, that exercise would allow considerably more subjectivity and uncertainty in decision-making than under existing environmental law. We advise that the overall improvement test should be strengthened to address this.

The bill as drafted also allows for conservation measures to be located away from the protected sites affected by development. Currently, this is only permissible in limited circumstances and where the overall coherence of the protected site network is maintained. Such safeguards are absent from the bill. Undermining the network of protected sites could affect the Government’s ability to meet its legally binding biodiversity targets and ‘30 by 30’ objectives. We advise that the lack of safeguards for the overall sites network is rectified, given the role they play in efforts to meet statutory nature targets.”

The OEP sets out, in an Annex to the letter, various detailed recommended changes to what is proposed.

More recently, the government has now published its impact assessment in relation to the Bill (6 May 2025). Section 7.2 is relevant for our purposes (NPSV = “Net Present Social Value (NPSV) in 2025 prices with 2026 base year across the 10-year appraisal period 2026-35”), EANDCB = “Equivalent Annual Net Direct Cost to Business” and EANDCH = “Equivalent Annual Net Direct Cost to Households”):

Incidentally, some groups and media pieces (eg UK government admits almost no evidence nature protections block development (The Guardian, 7 May 2025)) have misconstrued that reference to “limited data availability”. I agree that the statement is somewhat of a cop-out (and the range given absurdly wide) but the footnote makes it clear that the figure is expected to be a significant underestimate. For the real effects arising from nutrient neutrality alone see eg the work by the HBF and as for water neutrality see the recent failure at examination for instance of the Horsham local plan and many individual stalled schemes.

Is there a middle ground here? Should EDPs and the nature restoration funds, rather than ambitiously seeking to remove the need for developers to assess and address the specific effects likely to arise as a consequence of the species and habitats on their development sites themselves, in fact focus on those off-site issues which have indeed been causing so much delay and uncertainty: nutrient neutrality, water neutrality and issues relating to recreational pressure? After all it is these aspects which the impact assessment focuses on:

“The Nature Restoration Fund is expected to deliver benefits to areas where particular environmental obligations apply, for example, nutrient neutrality catchment areas. While some urban areas are in nutrient neutrality catchments (Southampton, Portsmouth, Norwich and Middlesborough), the majority of land area covered by nutrient neutrality catchments is rural. In some cases entire LPA areas are within nutrient neutrality catchments, where obligations limit ability to deliver those LPAs’ housing targets. The largest nutrient neutrality catchments (by hectare) are Solent, River Eden Special Area of Conservation (SAC), Somerset Levels & Moors Ramsar. The location of the interventions secured under the NRF will be determined by the scale of the delivery plan area.” (Paragraph 69)

I can see that in some circumstances nature recovery objectives can be secured more efficiently and effectively on a coordinated basis. The impact assessment says this:

“…the Nature Restoration Fund measures aim to improve environmental outcomes by requiring developers to contribute towards nature recovery. By shifting to a strategic approach to addressing environmental obligations, coordinated by a single delivery body, action will be more efficient and effective – achieving more with the same cost to developers. It is therefore expected that these measures will contribute to meeting the Government’s wider environmental targets and help secure the benefits derived from biodiversity and ecosystem services more effectively. For example: wetlands can effectively regulate flow of water which enhances resilience to flooding; forests, oceans and healthy soils sequester carbon, reducing greenhouse gases in the atmosphere; peatlands act as carbon stores; restored vegetation stabilises soils reducing erosion and improving water quality; and natural landscapes offer spaces for outdoor recreational activities like hiking and birdwatching. These activities promote physical and mental well-being and provide benefits through tourism-related revenue. This policy is also designed to speed up the delivery of net zero infrastructure (alongside other development), and in doing so support decarbonisation.” (paragraph 77)

But should any of this replace on-site assessment and on-site mitigation, save where it can be shown that off-site mitigation will in fact be as effective? And wouldn’t this also be fairer, rather than, presumably, some developers having to over-pay to compensate for others seeking to develop more ecologically sensitive sites?

Simon Ricketts, 11 May 2025

Personal views, et cetera

Bank Holiday Weekend Special: Mayors, Oxford Street, Stag Brewery

The election for the first London Mayor took place 25 years today, 4 May 2000. I learned this via a piece by Nick Bowes in LCA’s latest LDN newsletter.

It is a topical weekend to think back as to the influence of the three very different political figures who have been London Mayor: Ken Livingstone, Boris Johnson and Sadiq Khan. Even without the extent of devolved powers available to their counterparts in other world cities, they have been able to exert significant influence over the shape and operation of our capital city, particularly in relation to transportation and in relation to strategic planning, including in relation to individual development projects of “potential significant importance”.

As Labour rolls out its vision for Mayoral strategic authorities across the country, what are going to be the political consequences over time and for the shaping of those areas? My 18 January 2025 blog post Viva La Devolution sought to summarise what lies ahead in terms of devolution and the introduction of strategic planning, modelled (in legislative form at least) on the spatial development strategy (aka London Plan) model, with equivalent intervention powers to the London Mayor in relation to applications of potential strategic importance (the power to direct refusal or to take over as decision maker).

For example, Greater Lincolnshire is now of course a combined county authority, covering the Lincolnshire County Council, North East Lincolnshire Council and North Lincolnshire Council’s areas. On 1 May 2025, Reform party politician Dame Andrea Jenkyns was elected Mayor and will lead the authority, the other members being:

Constituent members: Six members appointed by the constituent councils. Agreed at the first GLCCA meeting on 6 March, these are:

Councillor Martin Hill OBE – Leader of Lincolnshire County Council
Councillor Patricia Bradwell OBE – Lincolnshire County Council Councillor
Philip Jackson – Leader of North East Lincolnshire Council
Councillor Stan Shreeve – North East Lincolnshire Council
Councillor Rob Waltham MBE – Leader of North Lincolnshire Council
Councillor Richard Hannigan – North Lincolnshire Council

Non-constituent members: Four people nominated by the district councils within the area. Agreed at the first GLCCA meeting on 6 March, these are:

Councillor Richard Wright – Leader of North Kesteven District Council
Naomi Tweddle – Leader of City of Lincoln Council
Craig Leyland – Leader of East Lindsey District Council
Nick Worth – Leader of South Holland District Council

Additional non-constituent or associate members: Up to two further members, including one of the police and crime commissioners for the area and another from a business background. Agreed at the first GLCCA meeting on 6 March, these are:

Marc Jones – Police and Crime Commissioner for Lincolnshire
Neal Juster- Interim Associate Member

What will all this mean for planning?

I had a brief look at Reform UK’s policy documents:

Aside from a whole page on scrapping the government’s net zero policies, this is all there is on planning, on housing:

“Review the Planning System

Fast-track planning and tax incentives for development of brownfield sites. ‘Loose fit planning’ policy for large residential developments with pre-approved guidelines and developer requirements.

Reform Social Housing Law

Prioritise local people and those who have paid into the system . Foreign nationals must go to the back of the queue. Not the front”.

It will be interesting to see how the new authority engages with the process of preparing a spatial development strategy in due course and the extent to which the process will be used a wider political platform. Social media posts from Reform’s deputy leader and MP for Boston and Skegness (Lincolnshire of course) and from Dame Andrea Jenkyns perhaps give a flavour of what is in store:

Conflict with the government on national policy issues:

Influence in relation to wider political/cultural issues:

Of course it must be said that each of our London Mayors have used their role from time to time in equivalent ways!

Turning back to London, one long-running east-west scar across the centre of the capital has been Oxford Street. I wrote in my 21 September 2024 blog post Street Robbery about the Mayor’s 17 September 2024 announcement that he is to create a Mayoral Development Corporation to “transform Oxford Street, including turning the road into a traffic-free pedestrianised avenue” so that it can “once again become the leading retail destination in the world”. Since then a public consultation process was launched on 28 February 2025 which closed on 2 May 2025. For a detailed, authoritative account of the last hundred years of managing transport on Oxford Street, which puts the current proposals into context, I strongly recommend you read an On London blog post published today, 4 May 2025, by Paul Dimoldenberg, long serving Westminster City Council member. How much progress will be made towards at least partial pedestrianisation before the end in 2028 of Sadiq Khan’s current term? One to watch.

We are also watching and waiting for the Mayor’s high level Towards a London Plan consultation document, initially expected last month but now delayed to May. Adoption is not expected of the final document until 2027, a year from the next Mayoral election. These slow time periods are crazy.

We are also still waiting for the final versions, following consultation in May 2023 (see my 6 May 2023 blog post New Draft London Guidance On Affordable Housing/Viability) of non-statutory London Plan Guidance on affordable housing and on development viability. All we have had so far is a December 2024 “practice note” on accelerating housing delivery (see my 11 January 2025 blog post Is The London Mayor Doing Enough In Practice To Accelerate Housing Delivery?)

As we wait for those documents, the inspector’s decision letter dated 2 May 2025 in relation to the Stag Brewery proposed development in Mortlake, Richmond-on-Thames, makes for interesting reading – and a reminder of how financially challenging it is to bring forward large-scale brownfield development. I need to declare an interest in that my Town Legal colleagues Elizabeth Christie and Aline Hyde acted for the successful appellant, Reselton Properties Limited. The proposals entail the redevelopment of the site for residential and mixed use purposes (including up to 1,075 new homes), together a new secondary school. The decision letter follows a lengthy saga, with a previous scheme on the site having been the subject of refusal by the Mayor in May 2021 following resolution to grant by the London Borough of Richmond-on-Thames in January 2020. The local planning authority had similarly resolved to approve this latest scheme; the main issue, again, was with the Mayor, primarily in relation to viability and the approach to affordable housing.

The appellant and local planning authority agreed that viability testing had demonstrated that the viable position would be zero affordable housing, and that, against this technical position, the offer of 7.5% affordable housing (split 80% social rented, 20% intermediate), with viability review mechanism to capture future uplifts in viability, was a benefit. The Mayor disagreed that this represented the maximum viable provision required by policy, questioning some of the viability inputs, namely on private residential sales values, developer return (appellant’s and council’s position: 17.2%, Mayor’s position 15%) and growth and review potential. However, the inspector accepted the appellant’s and council’s position, indeed rejecting an alternative offer by the appellant of 12% affordable housing if the inspector were to have found against the appellant and council on elements of the viability case. In the context of the council having marginally less than five years’ housing land supply; the additional presumption to be given to brownfield development, and other benefits including the opportunity for delivery of a new secondary school as required by the local plan allocation and wider economic benefits flowing from the development, planning permission was granted.

Simon Ricketts, 4 May 2025

Personal views, et cetera

Fires

Two sad stories, presented without further comment.

Fire 1

Everyone will remember the case of the Crooked House pub in Dudley.

For a summary of the relevant facts, I turn to Mould J, in the opening passages of his judgment in ATE Farms Limited v Secretary of State (Mould J, 5 February 2025):

“The Crooked House used to operate as a public house well known for its tilted appearance both within and outside. The causes of the differential settlement resulting in that appearance and evident in the building are possibly various, including the underlying natural geology and the impact of historic mining activity. The pub closed in July 2023 apparently following a burglary which had caused considerable and costly damage. The appellant purchased the land on 21 July 2023.

On 5 August 2023 the building was seriously damaged by fire, the cause of which, and in particular whether it was caused deliberately by criminal action, are currently the subject of a police investigation. On 7 August 2023 the fire-damaged building was demolished by contractors acting on the instruction of the appellant.”

South Staffordshire Council issued an enforcement notice on 27 February 2024, alleging that without planning permission the Crooked House, an unlisted building, was demolished and that this was unauthorised development constituting a breach of planning control. “The appellant’s case is that those demolition works were initially agreed to by the second respondent, but that they led to an urgent risk of collapse and justified the immediate demolition of the remaining structure.”

“The enforcement notice requires the Crooked House to be rebuilt effectively so as to reinstate it in facsimile.”

“On 27 September 2024 the [council] requested that the appeal inquiry be adjourned until after the police investigation into the fire had been concluded, because the cause of the fire and whether it had occurred through human agency could be a key issue for the inquiry to resolve. On 18 October 2024 the Crown Prosecution Service wrote to the inspector notifying him that their current expectation was that the criminal investigation and any decisions on prosecution would be completed by the end of 2024. That letter included the following:

“As the Appeal touches upon an issue a criminal court may be asked to determine, we request that consideration be given to adjourning the appeal to allow time for the CPS to conclude its review. While we appreciate a decision not to charge a person with any criminal offence will not assist either party to the Appeal, a decision to prosecute may have a bearing on the Appeal and could also impact the criminal proceedings should the appeal be held in tandem.”

“On 15 November 2024 the appellant requested that the inspector postpone the start date for the inquiry on the grounds of fairness and prejudice to the criminal proceedings and pending completion of any criminal process.”

Following further representations by both parties, the inspector issued a note:

“As I am sure you understand, the Inspectorate has a duty to determine appeals in a timely manner, in particular where there is considerable local interest, hence our reluctance to postpone the inquiry. Timescales for the outcome of investigations and any subsequent Court proceedings are uncertain. If there is a court case this could take several years before we even began to consider the planning merits of the demolition of the building. Such a delay also ignores the question, how relevant is the issue of responsibility to the determination of the various grounds of appeal? This is still a matter of dispute between the parties.

In this regard, before I consider who was responsible for the fire, should that become necessary, there are a number of more fundamental questions to answer:

1.Can a fire be an act of demolition for the purposes of the 1990 Act?

2. If it can, does it matter who was responsible for the fire in so far as this may be relevant to the grounds of appeal?

3. Is there a difference between a genuine accident (an act of God) and a deliberate act – regardless of who carried out the deliberate act in so far as it relates to the considerations under appeal?

The three questions above are essentially legal and interpretational issues (and I have already had your outline views on them) which should, I would suggest, be dealt with by way of submissions. Consequently, in order to continue with the current, agreed, timetable, I suggest the following process is followed. Both parties provide submissions on the above questions which will cover grounds (b) [whether the matters have occurred which are alleged to be in breach of planning control] and (c) [whether, if they did occur, they amounted to a breach of planning control] at the same time as proofs are submitted. Proofs of evidence should then be limited to grounds (a) and (g) which will be the only matters examined at the inquiry.

Without prejudice to my determination of the appeal, I consider, at this stage, that there are three likely outcomes of grounds (b) and (c). Firstly, that ground (b) succeeds so there has been no demolition in which case the notice will be quashed. Secondly that ground (b)/(c) succeeds to the extent that the allegation needs to be corrected so that demolition is restricted to the part of the building that remained after the fire; and, thirdly, the grounds fail and it is unnecessary to correct the notice. This last outcome is the main component of ground (a), should planning permission be granted for the demolition of the building?

For the inquiry ground (a) should be considered on the basis of either the second or third outcomes.

Should you consider any additional outcomes may arise from grounds (b) or (c), relevant to ground (a), these should also be addressed in your submissions and proofs of evidence. Having heard the evidence on grounds (a) and (g) [whether a longer period for compliance should be allowed] and discussed conditions I will then discuss how best to proceed.

At present I consider the best way forward would be to adjourn the inquiry to allow me to consider the written and oral evidence. If it turns out that further evidence is required concerning the identity of those responsible for the fire this can either be dealt with by way of further written representations or I can re-open the inquiry. It may be possible to reach a decision without further evidence in which case I could close the inquiry and issue the decision letter. I will ensure both main parties have an opportunity to address me on this before I adjourn the inquiry and before any final decision is issued.”

The appellant argued that the inquiry should be postponed pending the outcome of the criminal investigation but the inspector issued a final ruling, confirming that the inquiry would start on 11 March 2025.

The appellant challenged the inspector’s ruling by way of judicial review and Mould J agreed that it should be quashed and remitted to the inspector for reconsideration:

“Firstly, it is the appellant’s case that the question whether they were responsible for the fire which occurred on 5 August 2023 is central not only to the determination of the enforcement appeal generally, but in particular to the evaluation of, and the determination of, the issue raised under ground (a). Whether the fire was accidental or was caused by human agency, their case is that they are innocent of its occurrence. They therefore, understandably, contend that it would be grossly disproportionate to their rights protected under Article 1 of the First Protocol of the European Convention of Human Rights to require them to reinstate the building at very considerable cost, in the event that the answer to that first question was in their favour. The appellant says that would be a powerful material consideration in support of the grant of planning permission retrospectively for the demolition of the building.”

“There is simply no realistic possibility that consideration of the ground (a) appeal at the forthcoming inquiry, let alone its determination, will be able to proceed without the inspector grappling with those questions of fact and causation. In my view, the inspector clearly misdirected himself in proceeding on the basis that he may be able to determine the enforcement appeal on ground (a) or at all, independently of inquiring into and finding facts as to the cause of the fire, on a true understanding of the evidence.”

“I have considerable sympathy for the inspector in his desire to avoid unnecessary delay and postponement of the inquiry. Not only does that objective flow from the Procedure Rules, as I have indicated, but it was in any event an entirely reasonable and understandable objective for him to pursue. The question though is whether he has misdirected himself in seeking to achieve that.

It seems to me, for the reasons that I have given, that the approach that he has followed cannot, in truth, avoid delay in relation to the determination of the ground (a) appeal. In order to determine the ground (a) appeal, it is inevitable that the inspector will have to hear evidence and make findings of fact on the cause of the fire: in particular, as to whether the appellant was responsible for it. He must do so in order to establish the true factual matrix against which to determine whether retrospective planning permission is merited in vindication of the appellant’s Article 1 Protocol 1 rights. On a true analysis of the position, there is no proper basis upon which the inspector can avoid hearing such evidence in the context of the ground (a) appeal.”

And so the appeal remains in abeyance, pending the outcome of the criminal investigations.

Fire 2

Many of you will also have read about the more recent fire that destroyed a grade II* listed World War 1 aircraft hangar, hangar 3, at Old Sarum Airfield, Salisbury, on 17 April 2025. See for instance Protecting airfield is about ‘protecting heritage’ (BBC, 24 April 2025) and Council seeking legal advice after fire rips through Grade II-listed site with permission for hundreds of homes (Inside Housing, 23 April 2025).

The fire coincided with the final outcome of a planning appeal inquiry (appeal decision letter dated 9 April 2025 and costs decision letter dated 17 April 2025).

The appeal was for a mixed use scheme at Old Sarum Airfield including 315 dwellings and was allowed, albeit with the inspector rejecting the appellant’s case that the development could not viably support any affordable housing, instead concluding that the proposed development could viably deliver 25%. Condition 17 imposed a restriction on occupation of more than 160 dwellings until hangar 3 had been restored. There were no awards of costs.

For a more personal narrative (which I am in no position to verify), you may be interested to read Hashi Mohammed’s recent LinkedIn post, Hashi having appeared for Wiltshire Council at the inquiry.

Simon Ricketts, 27 April 2025

Personal views, et cetera

Tripwire In Greenfields

This is the tripwire: Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 provides that a local planning authority’s planning register must contain, amongst other things, in relation to a planning application “a copy (which may be photographic or in electronic form) of any planning obligation or section 278 agreement proposed or entered into in connection with the application.”

The requirement should not be news for any local planning authority but it is often honoured in the breach. Until now it has not formed a basis for the quashing of a planning permission. But that could well be the outcome, subject to the court’s final order, of the Court of Appeal’s judgment yesterday (16 April 2025) in R (Greenfield (IOW) Limited v Isle of Wight Council , which concerned a challenge to Isle of Wight Council’s decision to grant planning permission for a development comprising 473 dwellings and related development, in circumstances where the proposed or completed agreement had not been placed on the planning register before planning permission was issued. One can see the problem arising from the particular facts: the planning committee’s resolution to grant planning permission was subject to prior completion of a section 106 agreement, one of the heads of terms of which was to be a financial contribution (amount unspecified although at the time of the committee the developer had indicated that the costs could be in the region of £777,000) but then only when planning permission had been granted did it transpire that the section 106 agreement, subsequently negotiated, provided for a contribution of £406,359.

The court made it clear that the implications of failure to comply with the duty are fact-specific. Here the heads of terms in the committee report were insufficient to inform the reader as to the nature of the contribution (namely its quantum) and the overwhelming evidence was that the claimant and others would have wished to make representations had they known what figure was proposed. Whilst the court found that the claimant had not made any request of the council a copy of the proposed obligation, it was accepted that they had searched the online planning register for sight of it. Lastly, the court could not conclude that even if the duty had been complied with it would have been highly likely that the outcome would have been the same.

At first instance HHJ Jarman KC had found this ground of challenge to be unarguable. Ah the uncertain joys of litigation.

What practically should we take from the judgment? These are just my own personal thoughts:

It is prudent for a local planning authority to place a copy of the draft and/or completed planning obligation (i.e. section 106 agreement or unilateral undertaking) on its planning register before the document is completed and permission issued.
This is particularly the case where the substantive contents of the agreement or undertaking are not already summarised in an officer’s report (and, if relevant planning committee resolution) which is in the public domain
The duty is to put the document on the register rather than to undertake further consultation and there is no minimum period specified as between placing the document on the planning register and issuing the permission, although in my view it would be sensible to allow at least a few days (e.g. when the document is probably in any event being engrossed and doing the rounds for execution – complying with this duty should not be an excuse for further delay in the process).
The question often arises as to whether successive drafts of a planning obligation need to be put on the register. What, after all, is the version of the document which is, in the vague words of the statutory duty, “proposed or entered into“? In my view successive drafts certainly do not need to be put on the register and it is sufficient to place on the register the version that the authority intends to enter into or (in the case of a unilateral undertaking intends to rely on) as a basis for granting planning permission.

None of this should be news, but local planning authority practice to date has often been rather more laissez faire, perhaps partly because the courts have previously declined to quash permissions in not dissimilar circumstances (see for instance R (Police and Crime Commissioner for Leicestershire) v Blaby District Council (Foskett J, 27 May 2014) and maybe partly because, well, this is a statutory duty, tucked away in the Development Management Procedure Order, that it can be easy to overlook.

Happy Easter.

Simon Ricketts, 17 April 2025

Personal views, et cetera

Building Safety Levy Latest

You will remember that the Building Safety Act 2022 introduced powers to impose a levy on new residential buildings requiring certain building control approvals in England, to raise revenue to be spent on building safety. The levy is now planned to come into effect in Autumn 2026 and we will see the necessary regulations laid before Parliament later this year. The levy is targeted to raise £3.4 billion.

On 24 March 2025 the Government published an updated version of a response to the technical consultation that had been carried out by the previous government from 22 November 2022 to 7 February 2023 and initially responded to by the previous government and further informed by a further technical consultation that was carried out from 23 January 2024 to 20 February 2024. This has all been a long time coming.

The 2022 Act empowers the Secretary of State to make regulations which will apply to a “relevant building”, payable to the Secretary of State or their nominee and applied in relation to applications or notices filed for building control approval. The Act defines “relevant building” as one, in England, consisting of or containing one or more dwellings or other accommodation (“including temporary accommodation, for example in a hotel or hospital”, although the Government now intends to exclude hotels and hospitals from the levy, as well as, for instance care homes and all types of affordable housing as defined in the NPPF).

To quote from the 24 March 2025 version of the government’s technical response to consultation:

“The levy charge will depend on the floorspace of the development. Rates per square metre will be set per local authority area to capture the geographical variation in house prices, so that levy rates will be highest in those areas with the highest house prices, and lowest in low-house-price areas. This measure is designed to protect the viability of house building across England. There will be a discounted levy rate of 50% for developments built on previously developed land (PDL), also known as ‘brownfield’ land.”

Certain residential buildings which provide important community facilities and certain types of communal accommodation will be exempt from the levy charge, so as not to deter their development. These include affordable housing, non-social homes built by not-for-profit registered providers, NHS hospitals, care homes, supported housing, children’s homes, domestic abuse shelters, accommodation for armed services personnel, criminal justice accommodation, and developments of fewer than 10 units (as a protection for small and medium-sized sites and enterprises).

The sanction for non-payment of the levy will be the withholding of a building control completion certificate, or rejection of a final certificate. As completion certificates are a legal requirement for buildings over 18m in height, and are required by many mortgage lenders, this means that the developer will struggle to sell and occupy that building upon completion if the levy is not paid.”

Annex A to the document sets out the relevant levy rate per square metre of chargeable development for each local authority area, with separate columns for the previously developed land rate and the non-previously developed land rate. The highest I could see was £50.17 and £100.35 respectively for the Royal Borough of Kensington and Chelsea; the lowest that I could see was for County Durham: £6.35 and £12.70 respectively. Annex A starts with this worked example:

“For example, a building control application is submitted for 20 identical houses in Dover. Each house has a gross internal area of 100m2, so the total chargeable floorspace for the building control application is 2000m2. The houses are being constructed on previously developed land. The levy rate for works on previously developed land in Dover is £15.19. To calculate the total levy liability for the building control application, the total chargeable floorspace (2000m2) is multiplied by the levy rate for works on previously developed land (£15.19). The total levy liability for the building control application is £30, 380.“

There will be no indexation although the rates will be subject to review by the Secretary of State on a three-yearly basis (but it can be more frequent than that).

What about any transitional provisions, you may ask? The November 2022 consultation document indicated that the previous Government was minded to make transitional provisions which apply to the first year of operation of the Levy and will be dependent on the stage within the building regulations processed that the development has reached at the time that the Levy comes into effect. The Government response to that consultation provided that a development which had begun the building control process as at the launch date of the levy would be exempt. Developments which enter the building control process after the levy is launched will be subject to it. There is no mention of any transitional provisions in the more recent consultation, or in the Government’s latest response.

How do you work out whether a site amounts to previously developed land? The NPPF definition of previously developed land is to be used. “Where 75% or more of the land within the planning permission redline boundary falls within the definition of PDL all levy-chargeable development on the site will qualify for the discount rate. We propose a 75% threshold as this will mean that sites which have a clear majority of land that constitutes PDL qualify for the discount. The developer will apply for the discount rate as part of the levy information provided as part of the first commencement notice and will submit supporting evidence to illustrate the site falls within the levy definition of PDL.“

The levy is to be payable to the local authority and passed onto the government. Local authorities’ role as tax collector continues to expand.

The developer will need to file information with their building control application or notice. At the initial notice stage, the developer will need to include reference to the planning permission pursuant to which the development is being carried out and the number of dwellings which will be created as a result of the development. At the stage of filing a commencement notice, the developer will need to confirm:

(a) whether in its view any exemptions from payment apply;

(b) whether the development is on previously developed land; and

Supporting evidence will need to be filed at both stages, but exactly what is required is not yet known. The Government has indicated that it will prepare guidance to assist on this point. If insufficient evidence is provided, the local authority will be empowered to reject the application or notice. The local authority will not verify all information provided to it but will carry out spot checks.

Having received the information from the developer (and subject to a spot check) the local authority will issue a levy liability notice to confirm the amount payable. The amount will then need to be paid before a completion certificate is issued or final certificate is approved. The Government does not intend to provide for phasing of payments.

In the event that an amendment notice is filed, or a further application is made for building control approval, the developer must provide information which reflects any change of consequence for the levy liability calculation – i.e. an increase or decrease in chargeable floorspace. The developer may also file updated information if they believe that the development has become eligible for an exemption from the Levy. Where the levy liability changes:

if the original liability sum has been paid, the payment already made will be credited against the new total; and
where the levy liability decreases as a result of a change, the developer will be entitled to a refund within 2 weeks of the issue of the updated Levy liability notice.

The regulations will provide for a review procedure and subsequent appeal where there is a dispute between the developer and the local authority as to the levy liability amount.

Many thanks to my Town Legal colleague Aline Hyde for much of the above detail. There is a lot here for us all to start to take in, both in terms of the additional regulatory requirements but also, for clients (whilst we should not forget the human tragedies that led to the need for this levy in the first place) the potentially significant financial implications of the levy for current and future development projects.

Simon Ricketts, 5 April 2025

Personal views et cetera

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

	Jed Holloway (Southw… on Save The Date: Live Event 1 Ju…
	George Vasdekys on If It’s Not One Thing It…
	simonicity on If It’s Not One Thing It…
	bethharriesd6e20ba84… on If It’s Not One Thing It…
	simonicity on Announcements