We should be constantly pinching ourselves at the good fortune of (1) living in, what was to previous generations, the future, and (2) having been given the privilege and responsibility of in turn helping to shape a small part of the world in which future generations will live and work.
It wasn’t so long ago that the life of a planning lawyer used to entail posting out cheques for copies of local plans and decision notices (having first had various telephone conversations – yes telephone conversations – to work out the price) or, if it was a rush job, turning up at the local authority’s offices to go through the paper files, or (the horror) sit at their microfiche machine. And sometimes we actually had to sit in a library, with books.
The Planning Portal, individual local authority planning portals and the Planning Inspectorate’s Appeals Casework Portal have been a game changer – but we are on the cusp of bigger improvements in terms of efficiency, transparency of information and the potential for better informed public engagement.
Last week at Town Legal we co-hosted a breakfast roundtable discussion with Gordon Ingram and Claire Locke from Vu.City to discuss digital 3D planning but the discussion went wider to discuss where we are with digital planning data more widely as well as the Planning Inspectorate’s recent guidance as to the use of artificial intelligence. We had a range of participants from the private and public sectors but I was particularly grateful to Nikki Webber, digital planning lead at the City of London who subsequently shared some of the links to resources that I will now use in this post.
There has been discussion about digitising the planning system for so long that there’s a risk of taking it all for granted, or of not focusing on the vision and how achievable it now is. But huge advantages in terms of efficiency, transparency and quality of decision-making surely flow from (and indeed are already starting to flow from):
Ensuring that data that enters the planning system is available for wider public use and that common standards are adopted wherever possible
Using technology (1) to give decision-makers and the public a better understanding of the policy options before them and the ability to visualise development proposals in context and (2) to enable better and more straight-forward opportunities for the public to express their views, on the basis of a better understanding of the issues
As the old British Rail slogan went, we’re getting there.
MHCLG’s Digital Planning Programme is doing great, practical, work. Its planning data platform is still at beta testing stage but is already useful, showing planning and housing information provided by local authorities on a single interactive map. It also announced on 18 October 2024 that it is now turning to developing data specifications for planning applications, looking into “where specifications are required, and define them clearly, taking into account how this data will be used by the planning community. This will build on the work that we have already started, such as the draft specifications for planning applications and decisions , and planning conditions .”
Section 84 gives the Secretary of State and devolved administrations “the power to regulate the processing of planning data by planning authorities, to create binding “approved data standards” for that processing. It also provides planning authorities with the power to require planning data to be provided to them in accordance with the relevant approved data standards.”
“Example (1):
A planning authority creating their local plan: Currently planning authorities do not follow set standards in how they store or publish local plan information. Through these powers, contributions to the preparation of a local plan and the contents of a local plan will be required to be in accordance with approved data standards. This will render local plan information directly comparable, enabling cross-boundary matters to be dealt with more efficiently as well as the process of updating a local plan as planning authorities will benefit from having easily accessible standardised data.
Example (2):
Central government trying to identify all conservation areas nationally: In the existing system, planning authorities name their conservation areas using different terms (e.g., con area, cons area) making it hard for users of this data, such as central government to identify which areas are not suitable for development and what restrictions are in place. By setting a data standard which will govern the way in which planning authorities must name their conservation areas, and planning authorities publishing this machine-readable data, a national map of conservation areas can be developed which can be used to better safeguard areas of special importance.”
Section 85 allows planning authorities, by published notice, to require a person to provide them with planning data that complies with an approved data standard, that is applicable to that data.
Section 86 allows regulations to be made “requiring a relevant planning authority to make such of its planning data as is specified or described in the regulations available to the public under an approved open licence”.
Whilst these sections are already technically in force, they cannot fully take effect until the government determines what those specific approved data standards will be. Section 87 is also important but not yet in force, which gives the Secretary of State the power to approve software, that is in accordance with data standards, to be used by planning authorities in England. Clearly there is great advantage in consistency of approach as between public authorities as to the software used, so as to ease the user experience and presumably to make providers’ investment in technology more viable but this is to be balanced as against the risks arising from any particular provider being able to exploit a dominant position. Is not a private/public sector approach possibly the most appropriate, as per the Planning Portal (a joint venture between MHCLG and TerraQuest Solutions Limited)?
MHCLG’s Digital Planning Programme has also been funding local authorities’ digital planning projects and its website has links to various case studies. For instance, take a look at Southampton City Council’s work on increasing accessibility and understanding to improve public engagement, using a Vu.City developed 3D model to help local residents understand what proposals may look like in situ and potentially ease concerns about increased densities. How transformative it would be if local people could see the different options that here might be to accommodate local housing and employment development needs within an area. Or in terms of development management and transparent public engagement, look at London Borough of Camden’s beta testing as to the information it can provide as to major applications in its area (particularly look at the use of images of the proposal and at the “How could this affect you?” section).
With progress of course comes the need for caution. These tools need to be based on accurate information and the risks are accentuated where outputs are the result of modelling and extrapolation of data, rather than taking the form of simply making the raw data more easily available. Any inputs and algorithmic influences need to be capable of being tested. Technology is requiring us all to be additionally cautious in all that we do. In my world for instance, the Law Society has published some useful, detailed, advice as to Generative AI: the essentials to provide a “broad overview of both the opportunities and risks the legal profession should be aware of to make more informed decisions when deciding whether and how generative AI technologies might be used”. As a firm we now have a policy on the use of AI; no doubt yours does too.
Understanding of the issues has in some ways already moved on greatly since my 27 May 2023 blog post You Can Call Me AI but the risks have increased now that use of Chat GPT and its competitors has become more mainstream. AI is undoubtedly being used by some to generate text for objections to planning applications. I’ve had prospective clients who mention in passing that before asking me the particular question they have looked online and “even Chat GPT didn’t have the answer” (these things are just large language models folks! Would you rely on predictive text as anything more than an occasional short-cut? I don’t like to think about what it must be like to be a GP these days).
Until recently I hadn’t thought about the additional risks arising from generative AI, of false images and documents being relied upon as supposed evidence in planning appeals. So I was pleased to see the Planning Inspectorate’s guidance on Use of artificial intelligence in casework evidence (6 September 2024).
The guidance says:
“If you use AI to create or alter any part of your documents, information or data, you should tell us that you have done this when you provide the material to us. You should also tell us what systems or tools you have used, the source of the information that the AI system has based its content on, and what information or material the AI has been used to create or alter.
In addition, if you have used AI, you should do the following:
Clearly label where you have used AI in the body of the content that AI has created or altered, and clearly state that AI has been used in that content in any references to it elsewhere in your documentation.
Tell us whether any images or video of people, property, objects or places have been created or altered using AI.
Tell us whether any images or video using AI has changed, augmented, or removed parts of the original image or video, and identify which parts of the image or video has been changed (such as adding or removing buildings or infrastructure within an image).
Tell us the date that you used the AI.
Declare your responsibility for the factual accuracy of the content.
Declare your use of AI is responsible and lawful.
Declare that you have appropriate permissions to disclose and share any personal information and that its use complies with data protection and copyright legislation. “
AI is defined in the document very loosely: “AI is technology that enables a computer or other machine to exhibit ‘intelligence’ normally associated with humans”.
If I can carp a little, whilst the thrust of the guidance and its intent is all good, are we really clear what is and isn’t AI? What about spell-check and other editing functions, what about the photo editing that goes on within any modern camera? Do you know whether the information you are relying upon has itself been prepared partly with the benefit of any AI tool however defined and if AI has been used on what basis are you confirming that “its use complies with data protection and copyright legislation” given the legal issues currently swirling around that subject as to the material upon which some of these AI models are being trained? Perhaps some examples would be helpful of the practical issues on which PINS is particularly focusing.
Tech isn’t my specialism. Planning and planning law probably isn’t a specialism of those actually developing the technical systems and protocols. But I think we need to make sure that we are all engaging as seamlessly as possible across those professional dividing lines, so that the opportunities to create a better, more efficient, more engaging, possibly even more exciting planning system are fully taken. These are the things that dreams are made of.
Sir Keir Starmer’s speech on 14 October 2024 at the international investment summit held at the Guildhall in the City of London generated much media coverage. This blog post is going to look briefly at the references he made in that speech to the planning process.
But first of all, I do draw attention to the important document published by the Government alongside the conference: Invest 2035: the UK’s modern industrial strategy(14 October 2024), now being consulted upon until 24 November 2024.
Some snippets:
“Eight growth-driving sectors have been identified: Advanced Manufacturing, Clean Energy Industries, Creative Industries, Defence, Digital and Technologies, Financial Services, Life Sciences, and Professional and Business Services.”
“A core objective of the Industrial Strategy is unleashing the full potential of our cities and regions. The Industrial Strategy will concentrate efforts on places with the greatest potential for our growth sectors: city regions, high-potential clusters, and strategic industrial sites. The Government is committed to devolving significant powers to Mayoral Combined Authorities across England, giving them the tools they need to grow their sectoral clusters and improve the local business environment through ambitious Local Growth Plans. Partnership with devolved governments will make this a UK-wide effort and support the considerable sectoral strengths of Scotland, Wales, and Northern Ireland.”
“The Industrial Strategy and growth-driving Sector Plans will be published alongside the Spending Review in Spring 2025.”
Under the “energy and infrastructure” section:
“An effective planning system is a fundamental enabler for business investment in our growth-driving sectors. At the national and regional level, planning constraints hold back growth, including in high-performing life sciences clusters like Cambridge and clean energy industries hubs such as Tees Valley and the North-East. Firms require predictability and efficiency when applying for consent for projects, but this is not being provided by existing processes. Businesses have told us that the planning consent process is too lengthy and uncertain – infrastructure projects spend an average of 65 months in pre-construction phases, the highest among peer countries.”
“Targeted, long-term infrastructure investment is a vital catalyst to the success and stability of major city regions and clusters of our growth-driving sectors. Businesses agree that the UK has for too long failed to provide a long-term vision and clear statement of intent to support this. A lack of housing in some places across the UK also prevents labour markets from operating effectively and prevents successful agglomerations. Further, additional data centre capacity and access to fast, secure, and reliable digital connectivity is essential to enabling economic growth and to reap the transformational productivity benefits of digitalisation and the adoption of AI. Continued investment is needed to meet our ambitious targets to bring gigabit-capable broadband to all of the UK, and standalone 5G to all populated areas, by 2030.”
Under a section entitled “Growing high-potential clusters”:
“The Industrial Strategy will concentrate efforts on places with the greatest potential for the growth sectors: city regions, high-potential clusters, and strategic industrial sites. The success of the Industrial Strategy’s growth-driving sectors can only be achieved if these clusters reach their full potential, supported through a place-based approach to policy.
Local Growth Plans are a cornerstone of the place-based approach. These locally owned, 10-year strategies will set out how Mayoral Combined Authorities (MCAs) will use their devolved powers and funding to drive growth in their region. They will build on the region’s unique strengths and opportunities to support sectors, identify wider business environment priorities, and provide a framework to unlock private investment. They represent strategic partnerships between central Government and MCAs to identify priorities for growth and will be aligned to the Industrial Strategy.
Alongside this, the Government will explore how to build on existing place-based initiatives to support high-potential clusters and align them behind the Industrial Strategy. This includes considering how the Industrial Strategy can be a ‘lens’ for informing the recommendations for New Towns locations, creating new large-scale settlements in places where high housing demand constrains the growth of high-potential clusters.”
Now to Keir Starmer’s summit speech. I have copied and pasted the passages most relevant to the planning system. (I do apologise that the format of the transcript makes it appear rather lyrical)
“Now, I don’t see regulation as good or bad.
That seems simplistic to me.
Some regulation is life-saving…
We have seen that in recent weeks here, with the report on the tragedy of Grenfell Tower.
But across our public sector…
I would say the previous Government hid behind regulators.
Deferred decisions to them because it was either too weak or indecisive…
Or simply not committed enough to growth.
Planning is a very real example of that…
Or – for our friends from across the pond…
‘Permitting’ is a really clear example of that…”
“we’ve also got to look at regulation – across the piece.
And where it is needlessly holding back the investment we need to take our country forward…
Where it is stopping us building the homes…
The data centres, the warehouses, grid connectors, roads, trainlines, you name it…
Then mark my words – we will get rid of it.
Take the East Anglia 2 wind farm.
A £4 billion investment.
One Gigawatt of clean energy.
An important project – absolutely.
But also the sort of thing a country as committed to clean energy as we are…
Needs to replicate again and again.
Now regulators demanded over four thousand planning documents for that project…
Not 4000 pages – 4000 documents.
And then six weeks after finally receiving planning consent…
It was held up for a further two years by judicial review.
I mean – as an investor…
When you see this inertia…
You just don’t bother do you?
And that – in a nutshell…
Is the biggest supply-side problem we have in our country.
So it’s time to upgrade the regulatory regime…”
Is the focus of his criticism the influence on the planning system of those aspects which are regulated (or at least the subject of oversight) from the likes of the Environment Agency and Natural England, is it the planning system itself, or is it the role of the courts? Or all of the above? I’m not sure that Anglia Two was particularly an example of where the regulatory regime needs to be (or at least can in a straight-forward way be) “upgraded”, but the previous government of course did of course commission Lord Banner KC in March 2024 to lead a review to “explore whether NSIPs are unduly held up by inappropriate legal challenges, and if so what are the main reasons and how the problem can be effectively resolved, whilst guaranteeing the constitutional right to access of justice and meeting the UK’s international obligations.” It would have been better if perhaps the current government had published the report (assuming it is concluded) alongside Monday’s speech because, guess what, it may point to some of the answers. When can we see it?
DCOs authorising construction of the East Anglia ONE North and East Anglia TWO Offshore Wind Farms with associated onshore and offshore development were granted on 31 March 2022, the case for challenge having been found to be arguable. The challenge to those DCOs, brought by a campaign group Substation Action Save East Suffolk Limited was rejected in the High Court on 13 December 2022 (relatively speedy as far as this sort of litigation is concerned – the Planning Court does generally make sure that cases move at a pace). As is often the way, the greater delay then came at Court of Appeal stage, with the Court of Appeal only dismissing the group’s appeal on 17 January 2024. Any planning lawyer will say the same: get the Court of Appeal operating at the pace of the Planning Court. The Court of Appeal’s judgment in R (Substation Action Save East Suffolk Limited) v Secretary of State (Court of Appeal, 17 January 2024) was summarised by my Town Legal colleague Jack Curnow here.
Some of you will have been at, or heard the subsequent 50 Shades of Planning podcast recording of, our recent Town Legal/Landmark Chambers 100 Days of Labour event. I did ten minutes on what had emerged to that point in relation to commercial and infrastructure development. If only we had waited a week or so! People may find interesting this table of decisions on recovered appeals, call-ins and DCOs (in relation to all types of development) since 4 July 2024, prepared by Town Legal’s Victoria Porter alongside Landmark Chambers’ Edward Arash Abedian, and which shows a 100% approval rate for each to date…
I suppose I shouldn’t be churlish – if it were not for the Localism Act 2011, Duncan Field and I would not have started our L is For Localism blog that year (all posts lost to the ether it seems. Oh well). The blog led to the publication of our Localism and Planning book the next year (don’t buy it – we haven’t updated it). And after we killed the blog around that point, L is for Localism was undoubtedly the blueprint I used when starting up simonicity in 2016.
But, come on, why are we questioning the good sense of the abolition of regional strategies (section 109 of the 2011 Act) and contemplating the reinvention of a strategic level of plan-making, particularly by way of the Government’s promised Devolution Bill, whilst accepting without question the additional “neighbourhood” plan-making tier introduced by way of section 116 of the same Act?
Valid questions to ask might be:
On balance, does neighbourhood planning help or hinder the delivery of new housing?
On balance, does neighbourhood planning materially improve the quality of new development?
Is neighbourhood planning widely seen as giving communities a voice which they would not otherwise have via their borough or district council, or unitary authority?
Is the bureaucracy and legalistic processes inherent in neighbourhood planning under the 2011 Act off-putting to communities and/or does it impose material financial burdens and resourcing difficulties for the authorities that have to administer it? Indirectly, does this favour communities with a particular demographic?
Are neighbourhood referendum turn-outs indicative of a healthy democratic process?
If they are to be retained, should neighbourhood plans remain part of the development plan or, given that they are not tested for soundness as local plans are, should they just be a material consideration in the determination of planning applications?
Can respondents point to widespread use (indeed any use) of the community right to build or of neighbourhood development orders?
Are neighbourhood forums sufficiently democratic or is there a case for encouraging communities instead to rely on or create parish or town councils if they consider that a neighbourhood tier of governance is desirable in their area?
You may wish to add to this list.
This thinking was sparked by Dan Mitchell posting on LinkedIn about the Perranzabuloe neighbourhood plan referendum in Cornwall this month, where the turn-out was just 7.5%*. Shouldn’t we be asking what low turn-outs like this are telling us and in fact shouldn’t there be a minimum turn-out required in order for the plan to be approved? I’ve been googling around and have found other neighbourhood plan referendums this year with turn-outs of less than 15%. Until now, I had thought that the process of elected police and crime commissioners was the democratic process with which the public is least engaged but even in the Police and Crime Commissioner elections on 2 May 2024, the turn-out in England was 24% . By contrast the turn-out at the 2024 general election was 59.7% and that was the lowest since 2001.
Don’t people know what is going on, or don’t they care? If the former, the system is ripe for abuse by those who do actually vote. If the latter, isn’t this all just a waste of time and money?
Oh I’m going to be attacked for this one but doesn’t someone have to ask these questions?
Simon Ricketts, 12 October 2024
Personal views, et cetera
*After I posted this, Ben Castell pointed out that the turn-out in Perranzabuloe was in fact approaching 15% – the maths on their website appears to be incorrect: “Electorate 5099, ballot papers issued 680, turnout 7.5%”! My core point however remains.
Obviously, synchronised with the Labour party conference in Liverpool last weekend – Sir Keir Starmer’s speech there promised: “‘we are introducing new planning passports that will turbo-charge housebuilding in our inner cities.” In more general terms Rachel Reeves there: “What you will see in your town, your city, is a sight that we have not seen often enough in our country – shovels in the ground, cranes in the sky, the sounds and the sights of the future arriving. We will make that a reality.”
Coincidentally, synchronised with a presentation starting, also starting at 9.30 am last Sunday, by the first of that day’s Oxford Joint Planning Law Conference speakers, Ant Breach of Centre for Cities: “BOLDER: A Zoning System for England”. In some ways, the idea of passporting particular types of development is nothing if not zoning.
“We have been clear that development must look to brownfield first, prioritising the development of previously used land wherever possible. To support this, we will make the targeted changes set out below, including making clear that the default answer to brownfield development should be “yes”, as the first step on the way to delivering brownfield passports.”
If the work had been done in time, it would obviously have made more sense for the proposals in the latest working paper to have been part of the July 2024 consultation, both so that those responding had a better understanding of the intended policy end-point and so that the changes could be introduced at the same time that the revised NPPF itself is published (still, we hope, before the end of this year – maybe keep 20 or 23 December free of meetings folks…).
We are where we are. What do we learn from this latest policy paper? I hesitate to be hyper-critical as we all know that a new government is moving at pace, that these issues are difficult and that the objective is to be applauded (in my view at least) but…
It is a bit of a “throw ideas at the wall and see what sticks” piece of work isn’t it? “Brownfield passport” is nice branding, up there with “grey belt”, but what rights would this “passport” actually bring?
Its purpose is to be “more specific about the development that should be regarded as acceptable, with the default answer to suitable proposals being a straightforward “yes”.”
This needs to be viewed against the changes to the NPPF that are already proposed that would reinforce the presumption in favour of granting planning permission for development proposals on brownfield land. Paragraph 122 of the draft revised NPPF states that planning policies and decisions should, amongst other things: “give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be regarded as acceptable in principle, and support appropriate opportunities to remediate despoiled, degraded, derelict, contaminated or unstable land” (the underlined text is what is proposed to be inserted into what is already within the current NPPF at paragraph 123 (c)).
So how is the “brownfield passport” concept intended to move the dial still further in favour of brownfield development?
Well first of all, it’s not the equivalent of planning permission: “while we are not considering the granting of automatic planning permission on suitable brownfield sites or removing appropriate local oversight of the development control process, we do want to explore ways in which providing more explicit expectations for development could lower the risk, cost, and uncertainty associated with securing planning permissions on brownfield land.”
Instead:
“In order to maximise clarity and certainty about the opportunities to make best use of urban land, we think there is scope to make further policy changes, at both a national and local level, relating to the principle, scale, and form of development in different types of location.
We see these potential changes as a form of ‘brownfield passport’: setting clear parameters which, if met, serve as accepted markers of suitability, with approval becoming the default and a swifter outcome.”
Hmm.
MHLG floats a number of options:
First, tightening the NPPF further, by “being explicit that development on brownfield land within urban settlements is acceptable unless specified exclusions apply. Those exclusions could, for example, include that there is no adverse impact in relation to flood risk and access that cannot be mitigated.”
Secondly, by using the proposed National Development Management Policies system “to set minimum expectations for certain types of location where a particular scale of development may be appropriate.
Policy could, for example, say that development should be of at least four storeys fronting principal streets in settlements which have a high level of accessibility, and/or set acceptable density ranges that allow for suitable forms of intensification. A similar approach has been used successfully in some other countries where efforts have been made to densify urban areas through ‘upzoning’. While it would still require approval from the local planning authority, it would establish a very strong starting position which would carry significant weight in making decisions and create an expectation that compliant schemes are approved.
The policy parameters, such as height and what conferred a high degree of accessibility, would need to be set carefully, both to make the most of suitable opportunities and to avoid inappropriate development.”
It would surely be difficult to do this on a blanket, national, basis. MHCLG recognises this, so a less exciting variant is that “policy could be amended to encourage such parameters to be set through local development plans, which could also be articulated through design codes for appropriate locations – whether across whole urban areas or at a more local scale.”
Thirdly, “the potential to use design guides and codes that draw on the existing character of places, to identify these opportunities and provide clarity on the types of development that are regarded as acceptable in particular locations.”
Fourthly, for local planning authorities to make local development orders “in order to provide upfront consent to developments that meet the specified criteria…Combining them with criteria on the scale and/or form of development as suggested above would allow a local planning authority to effectively establish one or more zones in which particular types of development had planning permission without the need for individual applications.”
Fifthly, whether any of these proposals “could be supported by linking them to the national scheme of delegation, which [the government has] committed to provide for through the Planning and Infrastructure Bill.” Now there’s an idea!
The paper ends with this paragraph:
“As part of wider action to support the development of small sites, we will also consider whether any of these proposals could apply to non-brownfield land in urban areas, with suitable safeguards to retain land which should be kept open or has important environmental benefits.”
So, having established that we are not really talking about “passports” – rather, various ways in which the planning system might further assist in the promotion for development of particular categories of schemes, and we aren’t really just talking about “brownfield” either.
There will in due course be a call for evidence.
“Brownfield land“ in planning-speak is “previously developed land”, or PDL. I’m beginning to wonder whether there should be another specific terms that we might all find helpful: Previously Developed Policy Interventions, or PDPI. Nicola Gooch wrote a great blog post last Sunday, Brownfield Passports: building on old foundations? reflecting some of the PDPIs which have sought in recent years to encourage brownfield development and the promote the ‘gentle densification’ of urban areas, e.g.:
Street votes
Permissions in principle
Zoning (as per the 2020 white paper)
To this I would add the various waves of changes to the General Permitted Development Order including Part 20 of Schedule 2 – construction of new dwellinghouses. Or indeed, what about this for déjà vu, the previous government’s 13 February 2024 consultation paper Strengthening planning policy for brownfield development (13 February 2024)?
Someone quipped to me this week that a brownfield passport is all well and good but that the big question will be how easy it will be to get the visa that allows us actually to get anywhere. Mind you that wording on the inside cover of your passport does always sound good:
“His Britannic Majesty’s Secretary of State Requests and requires in the Name of His Majesty all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford the bearer such assistance and protection as may be necessary.”
There was a surprising announcement on Tuesday by the Mayor of London, “supported by the new Government”, 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” (see Mayor of London and government announce bold plans to transform Oxford Street (17 September 2024).
We all know that there was a longstanding disagreement between the Mayor and the previous Conservative administration of Westminster City Council as to whether the street should be pedestrianised, his 2016 pedestrianisation scheme having been scuppered by opposition by WCC, as highway authority and therefore the relevant body to implement the proposals, in June 2018. But Labour took control of WCC in May 2022 and I’m left scratching my head as to what lies behind his announcement and its timing.
WCC’s Statement on Oxford Street (17 September 2024) reveals that the council was only informed the previous Thursday that this was on the cards. The plan would serve to frustrate the council’s own plans to redesign and improve the street.
Not only that, the council had a by-election two days after the announcement and lost one of its West End seats to the Conservatives (see Labour loses central London by-election to Tories amid row over Sadiq Khan’s Oxford Street pedestrianisation (Standard, 20 September 2024)). Was the result affected by the announcement? Well it can’t have helped, given how locally unpopular the prospect of pedestrianisation has been, with residents concerned about buses and taxis being displaced to other streets.
The Mayor’s announcement contains no information as to what the boundaries would be of the proposed Mayoral Development Corporation. I’m assuming that the main reason for designating the Corporation would be to give it the necessary planning and highways powers to deliver not just the pedestrianisation but any necessary works on surrounding streets – and is the Mayor looking to include the surrounding buildings within its area? There is no information in the public domain.
The procedure for establishing Mayoral Development Corporations is set out in sections 196 to 200 of the Localism Act 2011. The Mayor will need first to consult a number of bodies, including of course WCC, before placing it before the London Assembly, undertaking public consultation and then notifying the Secretary of State.
What funding will be made available by the Government? Again, nothing is in the public domain.
All in all this seems to me a very odd use of the Mayor’s powers to achieve a scheme which surely could have been driven through with WCC’s Labour administration with appropriate sticks and carrots. Or is the announcement itself just the waving of a big stick? Time will tell…
Simon Ricketts, 21 September 2024
Personal views, et cetera
image of Mayor’s 2016 scheme courtesy of Mayor of London
This is an important question, given that the consequence is that what is called in the jargon the “tilted balance” applies, namely that planning permission should be granted for any development proposal unless:
The application of policies in the NPPF “that protect areas or assets of particular importance provides a clear reason for refusing the development proposed” – those areas and assets being habitats sites, SSSIs, green belt, local green space, AONBs (now “national landscapes”), national parks, Heritage Coast, irreplaceable habitats, designated heritage assets (and some other heritage assets of archaeological value) and areas at risk of flooding or coastal change; or
“Any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in [the NPPF] taken as a whole, in particular those for the location and design of development … and for securing affordable homes”; or
The proposal would conflict with a neighbourhood plan which is no more than five years old and contains policies and allocations to meet its identified housing requirement.
The new Government is of course not just consulting on the draft revised NPPF but on a revised “standard method” for determining local housing need (see chapter 4 of its consultation document) and that standard method would significantly increase the local housing plan figure for most authorities. The effect for each authority is shown on this MHCLG spreadsheet or visually on Lichfields’ interactive map.
Maybe it’s just me but I found it quite difficult to get straight in my mind when an authority’s failure to demonstrate a five year supply of housing land to meet the new local housing need figure would mean that its local plan is to be treated as “out of date” such that the tilted balance applies. Here’s my thinking and it perhaps points to some areas where the draft revised NPPF needs to be tightened or at least made clearer.
Paragraph references in what follows are to the draft revised document.
The reference in paragraph 11 (d) is to “where “the policies for the supply of land are out of date”
Footnote 9 explains that:
“This includes, for applications involving the provision of housing, situations where: (a) the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, if applicable, as set out in paragraph 76); or (b) where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years.”
Paragraph 76 states:
“Strategic policies should include a trajectory illustrating the expected rate of housing delivery over the plan period, and all plans should consider whether it is appropriate to set out the anticipated rate of development for specific sites. Local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies, or against their local housing need where the strategic policies are more than five years old. The supply of specific deliverable sites should in addition include a buffer (moved forward from later in the plan period) of:
5% to ensure choice and competition in the market for land; or
20% where there has been significant under delivery of housing over the previous three years, to improve the prospect of achieving the planned supply”
Paragraphs 224 and 225 state:
“224. The policies in this Framework are material considerations which should be taken into account in dealing with applications from the day of its publication. Plans may also need to be revised to reflect policy changes which this Framework has made.
225. However, existing policies should not be considered out-of-date simply because they were adopted or made prior to the publication of this Framework. Due weight should be given to them, according to their degree of consistency with this Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”
Accordingly, until it is five years old, an adopted local plan will not be “out of date” on the basis of applying the proposed new standard method for assessing local housing need, but rather on the basis of whether it can demonstrate a five year supply of deliverable housing sites (calculated by reference to the housing requirement set out in strategic policies in the plan), with the appropriate buffer set out in paragraph 76 and has delivered at least 75% of its housing requirement over the last three years. Once the plan is five years old, the tilted balance will apply if there is not at least a five year supply of deliverable housing sites as against their new standard method local housing need figure (and delivery of 75% of its housing requirement over the last three years).
This applies to plans submitted for examination or adopted no later than one month after publication of the final version of the draft revised NPPF (see paragraph 226). For plans not adopted by that date the following transitional arrangements apply (in summary) as per paragraphs 226 and 227:
Where a plan was submitted for examination within a month of publication of the revised NPPF with a local housing requirement that is more than 200 dwellings lower than the relevant local housing need (under the new standard method), once the plan is adopted, the authority will be “expected to commence plan-making in the new plan-making system at the earliest opportunity to address the shortfall in housing need”. [There is no reference in the draft revised NPPF as to how long the authority has to conclude that process before its plan will be treated other than set out in my emboldened paragraph above. Surely this needs to be clarified, because otherwise it is a recipe for confusion at best and gaming of the system at worst].
Where a local plan has reached regulation 19 pre-submission stage with an emerging annual housing requirement that is more than 200 dwellings lower than the relevant local housing need (under the new standard method), the plan should proceed to examination within 18 months of publication of the revised NPPF. [There is no express indication of what the consequences are if this deadline is missed; presumably the need to plan as against the relevant local housing need (under the new standard method) – again, shouldn’t this be clarified?].
Hence presumably why we are seeing some authorities speed up with their emerging plans, with an eye on baking in housing targets based on the current standard method, although of course that is only going to work if their plans do not require significant further work during the examination process to make them sound (see the planning minister’s 30 July 2024 letter to the Planning Inspectorate).
I will try to make next weekend’s post (if there is one: I just remembered it’s the Oxford Joint Planning Law Conference – may see you there) more exciting, sorry.
The inquiry’s recommendations are within volume 7, part 14, chapter 113, pages 231 to 249 of its phase 2 report published on 4 September 2024, following publication of its phase 1 report in 2019. After 1,500 or so pages, the recommendations are expressed concisely, with precision and urgency.
The question for this phase of the inquiry to answer was specific:
“In Phase 2 we have set out to answer the question that has been at the forefront of many people’s minds: how was it possible in 21st century London for a reinforced concrete building, itself structurally impervious to fire, to be turned into a death trap that would enable fire to sweep through it in an uncontrollable way in a matter of a few hours despite what were thought to be effective regulations designed to prevent just such an event?”
The conclusions of the report lay bare the tangle of causes:
There is no simple answer to that question, but in this report we identify the many failings of a wide range of institutions, entities and individuals over many years that together brought about that situation.”
With some humility given the seriousness of the topic and its breadth, I thought that I should at least try to identify some potential consequences for the planning system. This follows two earlier blog posts, Tall Buildings & Fire Safety (7 January 2023) and Safety & Planning (3 July 2021). Themes of those posts included the extent to which human safety, and the safe construction of buildings, are a matter for the planning system rather than Building Regulations and the problems arising where policies are continually in a state of flux, when there is uncertainty as to where the controls lie – via the planning system or via separate legislation – and when there is the possibility of inconsistency as between the differing regimes.
Partly as a response to phase 1 of the inquiry’s work, the previous Government made the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021, which introduced a requirement for a fire statement to be submitted with applications for planning permission for development involving a building (1) contains two or more dwellings or educational accommodation and (2) contains 7 or more storeys or is 18 metres or more in height. This “Planning Gateway One” fire statement is published on the planning register and the Health and Safety Executive must consulted before the grant of planning permission involving a high-rise residential building in certain circumstances.
The Planning Practice Guidance explains:
“The changes are intended to help ensure that applicants and decision-makers consider planning issues relevant to fire safety, bringing forward thinking on fire safety matters as they relate to land use planning to the earliest possible stage in the development process and result in better schemes which fully integrate thinking on fire safety.”
Against that context, let’s look at some of the phase 2 report recommendations most relevant to the Town and Country Planning Act system. On a narrow reading, the recommendations focus on the need for improvements to the separate Building Regulations/”building control” system, rather than the planning system (although note my comments later):
The Building Regulations system as at the time of the disaster was “seriously deficient” – poorly worded, lack of active monitoring of their performance by Government.
The arrangements under which the construction industry are regulated have become too complex and fragmented, as between different government departments, but also: “Building control was partly in the hands of local authorities and partly in the hands of approved inspectors operating as commercial organisations, enforcement of the law relating to the sale of construction products was carried out by Trading Standards and commercial organisations provided testing and certification services to manufacturers of products. UKAS accredited organisations operating as conformity assessment bodies. In our view, this degree of fragmentation was a recipe for inefficiency and an obstacle to effective regulation.”
“In our view all the functions to which we have referred, as well as some others to which we refer below, should be exercised by a single independent body headed by a person whom, for the sake of convenience, we shall call a construction regulator, reporting to a single Secretary of State.”
“We are aware that in the period since the Grenfell Tower fire Parliament has passed the Building Safety Act 2022 to regulate work on higher-risk buildings, to impose particular duties on those involved in the construction and refurbishment of such buildings and to establish a Building Safety Regulator responsible for building control and for overseeing standards of competence. However, responsibility for the range of functions identified above remains dispersed. We therefore recommend that the government draw together under a single regulator all the functions relating to the construction industry to which we have referred.”
“For the purpose of this and our other recommendations we have used the expression “higher-risk building” in the sense in which it is used in the Building Safety Act, that is, a building that is at least 18 metres in height (or has at least seven storeys) and contains at least two residential units. However, we do not think that to define a building as “higher-risk” by reference only to its height is satisfactory, being essentially arbitrary in nature. More relevant is the nature of its use and, in particular, the likely presence of vulnerable people, for whom evacuation in the event of a fire or other emergency would be likely to present difficulty. We therefore recommend that the definition of a higher-risk building for the purposes of the Building Safety Act be reviewed urgently.” [my emboldening]
“We think that a fresh approach needs to be taken to reviewing and revising the Building Regulations and statutory guidance that is driven primarily by considerations of safety. Fresh minds are needed. We therefore recommend that, as far as possible, membership of bodies advising on changes to the statutory guidance should include representatives of the academic community as well as those with practical experience of the industry (including fire engineers) chosen for their experience and skill and should extend beyond those who have served on similar bodies in the past.”
“We […] recommend that it be made a statutory requirement that a fire safety strategy produced by a registered fire engineer (see below) to be submitted with building control applications (at Gateway 2) for the construction or refurbishment of any higher-risk building and for it to be reviewed and re-submitted at the stage of completion (Gateway 3). Such a strategy must take into account the needs of vulnerable people, including the additional time they may require to leave the building or reach a place of safety within it and any additional facilities necessary to ensure their safety.”
“We […] recommend that the profession of fire engineer be recognised and protected by law and that an independent body be established to regulate the profession, define the standards required for membership, maintain a register of members and regulate their conduct. In order to speed up the creation of a body of professional fire engineers we also recommend that the government take urgent steps to increase the number of places on high-quality masters level courses in fire engineering accredited by the professional regulator.”
“We recognise that both the Architects Registration Board and the Royal Institute of British Architects have taken steps since the Grenfell Tower fire to improve the education and training of architects. We recommend that they should review the changes already made to ensure they are sufficient in the light of our findings.
We also recommend that it be made a statutory requirement that an application for building control approval in relation to the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a statement from a senior manager of the principal designer under the Building Safety Act 2022 that all reasonable steps have been taken to ensure that on completion the building as designed will be as safe as is required by the Building Regulations.”
“We […] recommend that a licensing scheme operated by the construction regulator be introduced for principal contractors wishing to undertake the construction or refurbishment of higher-risk buildings and that it be a legal requirement that any application for building control approval for the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a personal undertaking from a director or senior manager of the principal contractor to take all reasonable care to ensure that on completion and handover the building is as safe as is required by the Building Regulations.”
“One of the causes of the inappropriate relationship to which we have referred was the introduction into the system of commercial interests. Approved inspectors had a commercial interest in acquiring and retaining customers that conflicted with the performance of their role as guardians of the public interest. Competition for work between approved inspectors and local authority building control departments introduced a similar conflict of interest affecting them. As things stand that underlying conflict of interest will continue to exist and will continue to threaten the integrity of the system. We therefore recommend that the government appoint an independent panel to consider whether it is in the public interest for building control functions to be performed by those who have a commercial interest in the process.
The shortcomings we have identified in local authority building control suggest that in the interests of professionalism and consistency of service all building control functions, including those currently performed by local authorities, should be exercised nationally. Accordingly, we recommend that the same panel consider whether all building control functions should be performed by a national authority.”
The implications for the planning system of the conclusions and recommendations of the report should not be under-estimated:
The Grenfell Tower tragedy had a specific factual background: the building had been constructed long ago – the issues arose through its refurbishment. Whilst building control should be the mechanism for ensuring the safety of the works carried out, the position is more complex in the case of the proposed construction in the first place of a higher-risk building. Building control is ultimately the detailed mechanism for ensuring that the development constructed can be safely occupied, but, as recognised by the Government in introducing the Planning Gateway One stage, fire safety needs to be considered at an early stage in the gestation of development proposals – it is too late for effective influence over issues such as emergency escape routes at the building control stage, there does need to be that early opportunity for safety to be built in from the outset. How are we likely to see that Planning Gateway One process change in the light of the recommendations? Clearly there will need to be some consideration as to whether 18 metres should still be the threshold. And what will the single regulator be, which responds at this stage? Will its decision-making be final or one consultation response of potentially many (albeit of significant weight)? How can we make sure that its decision-making is predictable and timely? This is also delicate to say given the potential consequences of a wrong decision, but: what if its decision-making is at times unreasonably prescriptive?
How will this changed approach flow through into private sector appetite to embark on multi-storey residential projects, on which any achievement of the new Government’s targeted housing numbers is predicated?
In circumstances where registered providers are generally reluctant to take on section 106 affordable housing (see eg The challenges for affordable housing delivery in London (Savills, 27 August 2024)), to what extent will the continuing focus on remedying existing unsafe buildings serve to increase that reluctance?
Are there the resources? Anecdotally there is already a lack of fire engineers to advise appropriately on projects. How much will it cost to have a properly staffed and experienced national body for building control and how to move to such as system without creating further uncertainty?
When taken with other recent or current public inquiries, such as the Infected Blood Inquiry and the Post Office Horizon IT Inquiry, aside from the frustratingly long time it takes for the wheels of justice to turn, the themes arising appear to be depressingly recurring: individual greed or complacency; business objectives that have become disconnected from the public interest; how difficult it is to stand up to “the establishment” in its varying forms; inadequate often confusing or ineffective regulatory or administrative systems; ineffective agencies, and inadequate checks and balances on ministers’ actions (and inactions).
My respect goes out not just to Sir Martin Moore-Bick, Ali Akbor OBE and Thouria Istephan for their important work in relation to the Grenfell Tower Inquiry, but to all those affected by the tragedy, many of whose testimonies form such an important part of the reports. It will all unfortunately be forever part of this country’s history. It needs also to shape the future.
“Modernising planning committees” is one of the promised objectives of the Planning and Infrastructure Bill, likely to be introduced into Parliament this Autumn.
The Government has not yet provided any colour as to what modernisation means in this context but the general assumption is that it is likely to include moving to a national scheme of delegation, setting out which categories of planning applications should not be determined by planning committee but should instead be taken by planning officers by way of delegated powers.
Appropriate use of delegation is a good thing. Indeed, that is already reflected in the Government’s Planning Practice Guidance, unchanged for the last ten years:
The exercise of the power to delegate planning functions is generally a matter for individual local planning authorities, having regard to practical considerations including the need for efficient decision-taking and local transparency. It is in the public interest for the local planning authority to have effective delegation arrangements in place to ensure that decisions on planning applications that raise no significant planning issues are made quickly and that resources are appropriately concentrated on the applications of greatest significance to the local area.
Local planning authority delegation arrangements may include conditions or limitations as to the extent of the delegation, or the circumstances in which it may be exercised.
Paragraph: 015 Reference ID: 21b-015-20140306
Revision date: 06 03 2014”
The Local Government Association has published this piece which sets out examples of categories of applications included in individual authorities’ schemes of delegation as requiring determination by committee – together with a brief analysis of the advantages and disadvantages of including each category. As we know, almost every authority has a slightly different set of rules – and sometimes it takes some website burrowing (a particular curse upon every authority which does not a clear index to its constitution) to ascertain what they are…
However, despite what it may seem like to practitioners focused on larger applications, nearly all planning applications are of course already delegated to officers. This is a list of the authorities which last year delegated the lowest proportion of decisions to officers:
And yet still there is the sense that even more applications could be determined by officers. For instance, the RTPI published this press statement on the day of the King’s Speech (17 July 2024):
“The Institute believes planning committees need modernisation and could include a national scheme of delegation, allowing planning officers to make some decisions themselves. Qualified planners should be able to implement agreed planning policy, freeing up councillors’ time to focus on the most challenging planning cases. This change would help to unblock many applications and speed up the planning process.”
Definitely, in a more perfect system, with clear policies in an up-to-date local plan, surely applications for planning permission which accorded with the local plan should be able to be approved by officers without reference to committee, and those not in accordance refused. Local democracy should be focused on the plan rather than its implementation.
The previous Government’s 2022 Planning For The Future white paper of course took this to the max, envisaging allocations which had the effect of granting the equivalent of outline planning permission and that thereafter “the delegation of detailed planning decisions to planning officers where the principle of development has been established, as detailed matters for consideration should be principally a matter for professional planning judgement”.
Maybe indeed, we should be heading in that direction (although it is all of course predicated on having that clear, up-to-date, plan!). Is legislation required to achieve greater delegation of decision making? I’m not sure. I shall be interested to see the “one size fits all” outcome. And as with any suggested legislative change, have we looked at whether behaviour can be changed without resorting to the law? By all means come up with a scheme of delegation template – but why not then include it immediately in Planning Practice Guidance and advise authorities that they adopt it? That could make a difference by as early as next year. Legislation won’t.
In the meantime, two of the many things which keep planning lawyers busy are (1) the behaviour at meetings of planning committee members and (2) the interpretation of local authority constitutions as to how committee meetings should be run. Two recent cases of interest:
Read about the agony of prolonged debate of a contentious application at a committee meeting, allegations of predetermination and bullying and a councillor changing their mind at the last moment…
More agony, with successive planning committee meetings in relation to another contentious application and arguments as to which members could participate. The Court of Appeal (and before that the High Court) determined that was lawful for a local authority’s constitution to restrict voting by members on a deferred application for planning permission to those who had been present at the meeting(s) at which the application had previously been considered. However, the Supreme Court heard the subsequent appeal on 25 July 2024 and we await its final ruling.
There was a case that I missed when it was handed down: Mylward v Weldon (Chancery Court of England, 15 February 1595). Thank you to Major Clanger (whoever you may be) and barrister Jacob Gifford Head who brought it my attention via Bluesky. It’s regularly referred to in the context of over-long legal documents eg see David Hart KC’s Should lawyers get named and shamed for being boring? (5 December 2011) and Gordon Exall’s Useless Bundles (10 July 2014)
In Mylward v Weldon the court was faced with a party that had filed a pleading which was 120 pages in length which the court considered could have been confined to 16 pages and which it found to have been motivated by the “malicious purpose” of increasing the costs of the other party in the litigation. The court, in an admirably concise one-paragraph judgment, found that: “such an abuse is not in any sort to be tolerated, proceeding of a malicious purpose to increase the defendant’s charge, and being fraught with much impertinent matter not fit for this Court; it is therefore ordered, that the Warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall, on Saturday next, about ten of the clock in the forenoon, and then and there shall cut a hole in the myddest of the same engrossed replication (which is delivered unto him for that purpose), and put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the bar of every of the three Courts within the Hall, and shall then take him back again to the Fleet, and keep him prisoner, until he shall have paid 10l. to Her Majesty for a fine, and 20 nobles to the defendant, for his costs in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this Court, for the abuse aforesaid.”
Basically, a hole was to be cut in the middle of the document, the document (“with the written side outwards”) was then to be put over the offending party’s head and he was then to be led around the courts before he was then imprisoned until a large fine had been paid.
I would like this a lot if I didn’t have half an eye on the risk of being the one paraded.
But it did bring me back to how the planning system might be reformed so as to be faster and simpler.
On Bluesky I made the only half-serious suggestion that the principle in Mylward v Weldon should apply to every document in the planning system.
This, briefly, is the serious half of that suggestion (which, before you ask, does not apply to blog posts):
Most documents can be halved in length by ensuring that they are not internally repetitious or do not quote at length from well-known sources and other documents in the same pack. Why for instance do design and access statements have long passages on policy which replicate the planning statement? Why for instance do environmental statements quote policies at length when there is no reference at all to policy within Schedule 4 of the Environmental Impact Assessment Regulations? Why are the longest chapters in an environmental statement often in relation to the issues that are least relevant to the eventual decision or cover matters that are to be addressed in a straight-forward way by means of condition or indeed other regulatory controls?
Most documents obfuscate through lack of clarity (including through imprecise use of grammar or terms) or through seeking to over-analyse matters which are for the decision-maker to determine (contrast (1) the concise conclusions within most inspectors’ decision letters following a written representations appeal with (2) the length of the opposing parties’ statements of case).
Reports to planning committee are not fit for purpose: onerous for officers to prepare; not informative for councillors (how much can they actually read and take in of these massive documents?); often, through their length, adding to the risk of legal error through internal inconsistencies or through the difficulties of ensuring that they are thoroughly proofread for errors, and off-putting to anyone participating in what is meant to be a transparent system, let alone thinking of standing as a local councillor. As long as we can make sure, through improvements in digital planning, that everything is as accessible as possible, why can’t we work to a system where the report focuses on the officers’ analysis and conclusions, simply referring back to a document, available online for all to see before the report is published, which could be agreed between officers and the applicant at a previous stage in the process and which summarises (1) the proposal (2) relevant national and local policies and (3) third party representations and any agreed responses to these representations?
National development management policies to reduce the length of local plans? Standardised lists of conditions checked for plain English and lack of ambiguity? Standardised section 106 agreement templates, similarly checked? Bring them on!
Surely we should, as a general principle, move to a system where the Government provides an indicative word, page or file size limit for each category of document so as to manage expectations, to instil discipline and to be a benchmark against which the reasonableness of parties’ conduct is measured. Of course this has to be applied with some sensitivity but its purpose would be to weed out disproportionately long documents (which not only have to be written, at high cost, but also have to be read, often by many people, at high cost). But none of this is completely new ground:
Similarly, a limit of 3,000 words is usually set for hearing statements submitted in relation to a local plan examination
Proofs of evidence exceeding 1,500 words must be accompanied by a summary.
In Planning Court litigation there are page limits for Statements of Facts and Grounds (40 pages) and for skeleton arguments (25 pages – not less than 12 point font and 1.5 line spacing (including footnotes)). Parties submit overlong document bundles to the court or exceed these size limits at their peril. See for instance the comments of Holgate J (now Holgate LJ following his recent well-deserved appointment to the Court of Appeal) in R (Network Rail Infrastructure Limited) v Secretary of State (Holgate J, 8 September 2017):
“I regret the need to have to make some observations on the inappropriate manner in which the claim was put before the court. I do so in order to make it plain to litigants that the practices that were followed in this case, and regrettably sometimes in others, are not acceptable. Notwithstanding the clear statement by Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC (Admin) 74 at paragraphs 6-10, this claim was accompanied by six volumes comprising over 2,000 pages of largely irrelevant material. The Claimant’s skeleton argument was long, diffuse and often confused. It also lacked proper cross-referencing to those pages in the bundles which were being relied upon by the Claimant. The skeleton gave little help to the court.
Shortly before the hearing the court ordered the production of a core bundle for the hearing not exceeding 250 pages. During the hearing, it was necessary to refer to only 5 or 6 pages outside that core bundle. Ultimately, as will be seen below, the claim succeeds on one rather obvious point concerned with the effect of the Grampian condition in the 2016 permission. But this had merely been alluded to in paragraph 76 and the first two lines of paragraph 77 of the skeleton. Indeed, the point was buried within the discussion of Ground 3 of the claim, a part of the Claimant’s argument to which it does not belong. Nevertheless, Mr Tim Buley, who appeared on behalf of the Defendant, acknowledged that he had appreciated that this point could be raised. He was ready to respond to it.
Certainly, for applications for statutory review or judicial review of decisions by Planning Inspectors or by the Secretary of State, including many of those cases designated as “significant” under CPR PD 54E, a core bundle of up to about 250 pages is generally sufficient to enable the parties’ legal arguments to be made. In many cases the bundle might well be smaller. Even where the challenge relates to a decision by a local planning authority, the size of the bundle need not be substantially greater in most cases.
Prolix or diffuse “grounds” and skeletons, along with excessively long bundles, impede the efficient handling of business in the Planning Court and are therefore contrary to the rationale for its establishment. Where the fault lies at the door of a claimant, other parties may incur increased costs in having to deal with such a welter of material before they can respond to the Court in a hopefully more incisive manner. Whichever party is at fault, such practices are likely to result in more time needing to be spent by the judge in pre-reading material so as to penetrate or decode the arguments being presented, the hearing may take longer, and the time needed to prepare a judgment may become extended. Consequently, a disproportionate amount of the Court’s finite resources may have to be given to a case prepared in this way and diverted from other litigants waiting for their matters to be dealt with. Such practices do not comply with the overriding objective and the duties of the parties (CPR 1.1 to 1.3). They are unacceptable.
The Court has wide case management powers to deal with such problems (see for example CPR 3.1). For example, it may consider refusing to accept excessively long skeletons or bundles, or skeletons without proper cross-referencing. It may direct the production of a core bundle or limit the length of a skeleton, so that the arguments are set out incisively and without “forensic chaff”. It is the responsibility of the parties to help the Court to understand in an efficient manner those issues which truly need to be decided and the precise points upon which each such issue turns. The principles in the CPR for dealing with the costs of litigation provide further tools by which the Court may deal with the inappropriate conduct of litigation, so that a party who incurs costs in that manner has to bear them.”
Quite the Mylward v Weldon vibe. But shouldn’t we reflect on the extent to which these comments may be applicable to much of the wider planning system?
The simple fact is that there is currently no external discipline being applied in relation to the length of documents. Even the lightest of nudges by way of policy guidance and/or financial consequences in relation to for instance application fees (and appeal fees, if they ever come) and costs awards would have an immediate impact. And a word count brings the discipline of making sure that what is being said is being said clearly and simply, with irrelevant material excised.
I’d better end there. I don’t have that discipline with this blog, sorry. Enjoy the rest of this long weekend; I’ve taken up enough of your time.
The Valentine Brothers original version obviously, rather than Simply Red.
In fact, pardon me if this post feels a little like the extended 12” remix, but I wanted to work out for myself some of the long-running arguments that are out there as to the role of financial viability testing in planning.
The subject has been made topical by the “viability in relation to green belt release” annex to the consultation draft revised National Planning Policy Framework, as well as Labour’s proposals in relation to “no hope value” CPOs (mentioned in my 21 July 2024 blog post Hope/No Hope). But the discussion is vital anyway in present circumstances where, in order to deliver and/or fund necessary housing development (and indeed many other forms of development), the state largely relies on the private sector, which is inevitably motivated by profit.
It’s difficult to have a sensible discussion without trying to establish some basic principles. So here goes…
We want an acceptable environment around us: sufficient social housing for those who need it, health and education facilities, biodiversity and open space, good public transport, footpaths and cycleways.
We no longer seem prepared to pay for this fully through direct taxation or indeed charitable benevolence.
Instead, over the last 25 years or so of my career, Government policy has increasingly supported the indirect taxation of development activity (primarily by way of section 106 agreement planning obligations and the community infrastructure levy) to help pay for all these good things, even where it is not the development itself that is leading to the need for the particular infrastructure or facilities (and before you raise it, regulation 122 of the Community Infrastructure Levy Regulations only provides cover against the most egregious of LPA “asks”).
Affordable housing is the classic example of what I mean by indirect taxation. As I set out in my 28 May 2017 blog post Affordable Housing Tax:
“In requiring the developers of private housing schemes to contribute to the provision of affordable housing, the planning system has become a tax collection system, and an inefficient, opaque one at that.
[…]
“The provision of market housing does not in any way increase the need for affordable housing, indeed over time by increasing supply if anything it should decrease it. It may be said that mixed use communities can only be achieved by requiring the inclusion of affordable housing within market residential schemes, but that in itself does not justify the state putting the cost of the affordable housing at the door of the developer.”
[Think how odd it would be for car makers to be required to sell a large proportion of their product at below market rate, in fact at a loss – or indeed for supermarket chains to be so required – nice as that thought might be. Why is housing so different?]
Add to this the much-reduced availability of grant funding.
You see the same indirect taxation in the case, for instance, of schools: whether or not a particular housing scheme is built, children need schooling somewhere in the country. And yet the cost of delivery of new schools is regularly met in large part by way of contributions and obligations extracted via the planning system.
Most recently, the 10% biodiversity net gain requirement. Laudable – but another indirect tax on development via the planning system.
All of this appears to be implicitly accepted as in the public interest, presumably on the basis that:
It’s a victimless crime – assumed to be paid for out of (a) the receipts the land-owner receives for sale of the land, as long as the requirements are flagged sufficiently far in advance that they can be built into the contractual arrangements between the land owner and developer and can generally manage the land-owner’s expectations; and/or (2) the developer’s profit (for whom the return needs to outweigh the risk).
It sugars the pill for local communities, which is important given the general antipathy towards development (or maybe that’s just my village’s Facebook group….).
It would be politically impractical to meet these costs via the national public purse.
This is all fine if the numbers work out – if the contributions required by policy can be paid for, whilst leaving enough money in the project to ensure that it will still proceed i.e. that between them:
The land-owner receives enough money to persuade them to sell the land, rather than hold onto it or sell it for other purposes
The developer concludes that there is a sufficient slice of profit left to make it worthwhile as a business proposition to proceed to carry out the development, having regard to the availability, and likely cost over time, of development finance and/or of funding partners, and the range of development risks such as the costs of construction, other regulatory costs and uncertainties over time, unforeseen problems along the way and as to the financial return likely to be achieved at the end of it all
The purchaser or renter of the home is protected by operation of market forces against the cost simply being passed onto them.
What happens when the contributions requested in return for planning permission don’t work out? That is where the viability appraisal process comes in.
The Planning Practice Guidance https://www.gov.uk/guidance/viability advises that local plans “should set out the contributions expected from development. This should include setting out the levels and types of affordable housing provision required, along with other infrastructure (such as that needed for education, health, transport, flood and water management, green and digital infrastructure).
These policy requirements should be informed by evidence of infrastructure and affordable housing need, and a proportionate assessment of viability that takes into account all relevant policies, and local and national standards, including the cost implications of the Community Infrastructure Levy (CIL) and section 106. Policy requirements should be clear so that they can be accurately accounted for in the price paid for land.”
Obviously, it is sensible for local plans to give as much certainty as possible as to what contributions will be sought from developers and thereby to serve to dampen the expectations of land-owners. But the reality is that viability assessments at the local plan making stage are inevitably broad-brush, often based on typical development typologies. They become out of date. There is often insufficient push-back from developers – either because they do not yet have a relevant project in mind at the time the plan is being consulted upon and examined, or because they are nervous about losing the potential allocation of their site for development. And so policy aspirations are set high.
When an application for planning permission comes forward for development which is in accordance with the local plan or otherwise in the public interest, save that the full range of policy requirements cannot be met without rendering the project unachievable, what happens then?
To quote paragraph 58 of the current NPPF (which paragraph is not proposed to be amended in the consultation draft):
“Where up-to-date policies have set out the contributions expected from development, planning applications that comply with them should be assumed to be viable. It is up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage. The weight to be given to a viability assessment is a matter for the decision maker, having regard to all the circumstances in the case, including whether the plan and the viability evidence underpinning it is up to date, and any change in site circumstances since the plan was brought into force. All viability assessments, including any undertaken at the plan-making stage, should reflect the recommended approach in national planning guidance, including standardised inputs, and should be made publicly available.”
A decision-maker can decide to grant planning permission without commitments on the part of the developer to all of the contributions normally required by policy, if the developer has justified that the development would otherwise be unviable demonstrating that by way of a viability assessment carried out in accordance with the methodology set out in the Government’s Planning Practice Guidance.
The guidance these days is tighter than it was, although there is still much room for debate and disagreement as between the developer’s surveyor and the surveyor engaged by the local planning authority (invariably at the developer’s cost). There is much public discussion about “benchmark land value” in this exercise, i.e. in estimating the costs of carrying out the development, what cost should be assumed for the land itself? But that is by no means the only factor when it comes to viability. In many situations, development may be unviable even assuming little or no land value, simply because of, for instance, the large infrastructure costs which would need to be met by the developer, financing costs and/or low value of the completed development – and this is all made more complicated in relation to longer-term projects, where an internal rate of return model may be more appropriate. But for I’m going to focus here on the land value issue.
It’s been clear for many years that the benchmark land value to be plugged into the viability appraisal is not the price that the developer has actually paid for the land – see for example Parkhurst Road Limited v Secretary of State (Holgate J, 27 April 2018). Instead, the usual approach, according to the Planning Practice Guidance, should be EUV+, i.e. to take the existing use value (ignoring, for example, any development potential) and then to apply a premium. Oh dear, one of the big questions is how big should that premium be? The guidance says this:
“The premium should provide a reasonable incentive for a land owner to bring forward land for development while allowing a sufficient contribution to fully comply with policy requirements.
Plan makers should establish a reasonable premium to the landowner for the purpose of assessing the viability of their plan. This will be an iterative process informed by professional judgement and must be based upon the best available evidence informed by cross sector collaboration. Market evidence can include benchmark land values from other viability assessments. Land transactions can be used but only as a cross check to the other evidence. Any data used should reasonably identify any adjustments necessary to reflect the cost of policy compliance (including for affordable housing), or differences in the quality of land, site scale, market performance of different building use types and reasonable expectations of local landowners. Policy compliance means that the development complies fully with up to date plan policies including any policy requirements for contributions towards affordable housing requirements at the relevant levels set out in the plan. A decision maker can give appropriate weight to emerging policies. Local authorities can request data on the price paid for land (or the price expected to be paid through an option or promotion agreement).”
There are some examples of where a premium of many times the EUV has been found to be appropriate. For example:
Long Marston, Pebworth (APP/H1840/S/16/3158916, 16 May 2017): In the particular circumstances there, the inspector found that a premium of around 15 times the EUV was appropriate. (The appeal pre-dated the PPG but turned on a similar earlier concept of EUV+).
Parkhurst Road, Islington (APP/V5570/W/16/3151698, 19 June 2017): The appeal site was a former Territorial Army barracks in north London. The inspector found that the EUV was £2.4m but EUV+ was £6.75m (still less than the developer had paid for the site) . In the subsequent High Court challenge I refer to above, Holgate J the judge said this about EUV+: “Some adherents appear to be promoting a formulaic application of ‘EUV plus.’ But as the RICS advised its members in its 2012 Guidance Note, an uplift of between 10 and 40% on existing use value is an arbitrary number and the method does not reflect the workings of the market…”.
Old Oak and Park Royal local plan examination in public, Inspector’s Interim Finding on Viability (10 September 2019) : In relation to the Car Giant site forming most of the plan area, a very large brownfield site in north London, the inspector found the EUV to be £5.3m. The Old Oak and Park Royal Development Corporation’s surveyors suggested a premium of 20% would be appropriate. The inspector found that the characteristics of the site, including in particular Car Giant’s significant relocation costs, would justify a far larger premium, concluding that EUV+ was “clearly in excess of £240m”.
On the one hand, this sort of exercise may be seen as sensible in that it is seeking to get to the number that can be taken to be the tipping point at which a land-owner might rationally choose to sell rather than stay put. But of course, on the other, the potential range is so wide that the outcome of the process can be very unpredictable and result in high numbers – true but what is the alternative that enables or persuades land-owners (who are often in fact reluctant to sell in any event – their heads only turned by a financial offer they can’t refuse) actually to make their land available, unless there is a market intervention such as compulsory purchase (but (1) that obviously needs careful justification and (2) a careful look is needed at how the compulsory purchase compensation principles work), some targeted form of tax credits or in fact (never thought I’d say this and I still only think this works in theory rather than reality) community land auctions?
I’ll throw in another complication here: the figures in a viability appraisal are in part theoretical. We know that the actual price paid for the land isn’t plugged into the equation. The actual price may have been far higher, meaning that the developer is always going to be struggling to get the project off the ground. It may have been lower – the land may have been held for generations, with a very low current book value, or be held by a body that is prepared to make the land available at an under-value. Similarly as to the efficiencies in construction or financing that a particular developer may be able to bring to the process (versus the greater challenges in this respect an SME may have than a national housebuilder), or preparedness to take a reduced profit, or even a loss with this development, given wider objectives. If we want an objective scrutiny of the financial position, not tied to a particular developer who may of course in any event sell on, this is probably right. But it does mean that there may be two processes underway: (1) what is the objective agreed assessment as to the viability of the project and (2) is this developer for some reason prepared to offer more than what is objectively viable on the basis of that agreed assessment?
Can we at least agree that this subject is not easy, either in macro policy terms or in its detailed application? And that whilst it may be tempting for some to say “get rid of viability testing, development must simply meet all policy requirements”, can we agree that this is unrealistic without (1) up to date realistic local plan policies (unlikely) or (2) an acknowledgement that effect would less development coming forward, particularly in the areas where it is most needed?
At which point I turn to the Government’s proposals.
A new annex is included in its draft revised NPPF, headed “viability in relation to green belt release”, but one of the only two new elements of the proposed approach set out in that annex is what I have put in bold in the following paragraph:
“To determine land value for a viability assessment, a benchmark land value should be established on the basis of the existing use value (EUV) of the land, plus a reasonable and proportionate premium for the landowner. For the purposes of plan-making and decision- taking, it is considered that a benchmark land value of [xxxx] allows an appropriate premium for landowners. Local planning authorities should set benchmark land values informed by this, and by local material considerations.“
These are the key associated paragraphs in the consultation document which explain the “[xxxx]“:
“29. Approaches that government could take to ensure the appropriate use of viability include the following options.
a. Government sets benchmark land values to be used in viability assessments. When assessing whether a scheme is viable, it is necessary to make an allowance for the amount of money to be paid to the landowner. This should currently be set by the local planning authority. Government could set indicative benchmark land values for land released from the Green Belt through national policy, to inform the policies developed on benchmark land value by local planning authorities. These should be set at a fair level, allowing for a premium above the existing use, but reflecting the need for policy delivery against the golden rules. Different approaches to benchmark land value are likely to be appropriate for agricultural land, and for previously developed land.
b. Government sets policy parameters so that where land transacts at a price above benchmark land value, policy requirements should be assumed to be viable. As part of this approach, Government sets out that if land has been sold (or optioned) at a price which exceeds the nationally set benchmark land value, viability negotiation should not be undertaken. Under this approach, the planning authority should not be seeking higher contributions (e.g. 60 per cent affordable housing), but equally the developer should not be seeking lower contributions (e.g. 40 per cent affordable housing), as this would represent a transfer of value from the public to private landholders. Therefore, planning permissions would not generally be granted for proposed developments where land transacts above benchmark land value, and cannot comply with policy.
c. Government sets out that where development proposals comply with benchmark land value requirements, and a viability negotiation to reduce policy delivery occurs, a late-stage review should be undertaken. This would build on the approach to be taken by the Greater London Authority, and tests actual costs and revenues against the assumptions made in the initial viability assessment. If, for example, the development is more viable than initially assumed, due to a rise in house prices, then additional contributions can be secured, to bring the development closer to or up to policy compliance.
30. Benchmark land values are generally set as a multiple of agricultural use values, which are typically in the region of £20,000 – £25,000 per hectare, and as a percentage uplift on non-agricultural brownfield use values. We also note that views of appropriate premia above existing use values vary: for agricultural land, a recent academic paper[footnote 6 ] suggested BLVs of three times existing use value; the Letwin Review of Build Out [footnote 7] suggested ten times existing use value; Lichfields found that local planning authorities set BLVs of between 10- and 40-times existing use value [footnote 8 ]. These BLVs do not necessarily relate to Green Belt land, which is subject to severe restrictions on development, and Government is particularly interested in the impact of setting BLV at the lower end of this spectrum.
31. The Government considers that limited Green Belt release, prioritising grey belt, will provide an excellent opportunity for landowners to sell their land at a fair price, while supporting the development of affordable housing, infrastructure and access to nature. Where such land is not brought forward for development on a voluntary basis, the Government is considering how bodies such as local planning authorities, combined authorities, and Homes England could take a proactive role in the assembly of the land to help bring forward policy compliant schemes, supported where necessary by compulsory purchase powers, with compensation being assessed under the statutory no-scheme principle rules set out in Part 2 of the Land Compensation Act 1961.
32. In such cases, these rules would operate to exclude any increases or decreases in value of land caused by the compulsory purchase scheme, or by the prospect of it, and valuation of the prospect of planning permission (‘hope value’) for alternative development would reflect the golden rules outlined in the NPPF. Use of compulsory purchase powers may also include use of directions to secure ‘no hope value’ compensation where appropriate and justified in the public interest. A comprehensive justification for a no hope value direction (e.g., which includes a high proportion of vital affordable housing being delivered) will strengthen the argument that a direction is in the public interest. This would align with the Government’s aspiration for high levels of affordable housing to be delivered on these sites.”
That emboldening is in the document itself. So, we are looking at a potential approach where, for the purposes of viability appraisals on green belt sites (where there will be the policy requirement of “at least 50% affordable housing, with an appropriate proportion being Social Rent”) the Government caps the potential premium on existing use value more towards 3x than between 10 and 40x. That would provide some clarity, and would in the long term (beyond the gestation of current promotion agreements, option agreements and the like which will have baked in potentially higher figures) dampen land-owner expectations. However, the outcome may be that some potential sites are not released by land-owners because the resultant return is simply not worth it for them – they would prefer to hold the land for its current purposes, or make it available for non-residential development which may result in a higher premium, or wait for a more liberal policy climate to open up in future decades – and in the meantime battle against any threat of compulsory purchase. This is particularly the case at the moment where, as another risk to factor in, there is a dearth of registered providers even willing to build-out or take on the affordable housing element in some areas. The impacts of the approach will also particularly be felt in areas with weaker housing markets, where 50% affordable housing (including, importantly, an as yet unknown proportion of socially rented housing) will be a big drag on viability – and those areas are often the same areas where housing targets will be going up most steeply under the proposed revised standard method.
This proposal to set a blanket cap on existing use values really does need to be stress-tested during the current consultation period. I would particularly urge those with market knowledge to review those papers referred to in paragraph 30 quoted above – I have included the links. For instance, I couldn’t immediately see the workings for 3x EUV in that first paper.
The other change which that annex proposes is in its last line:
“Where a viability negotiation to reduce policy delivery has been undertaken, a late-stage review should be conducted to assess whether further contributions are required.”
Remember, this annex only relates to development in the green belt, but its effect is to advise that where policy compliant development (eg 50% affordable housing), cannot be delivered due to lack of viability, a provision should be included in the section 106 agreement, providing for a review at a later stage, or at later stages, of the development to see whether that is still the position or whether the project is now able to afford to meet those policy commitments, in full or at least in part. Obviously, in London, this has been relatively standard for some time (see eg the Mayor’s May 2023 draft development viability London Plan Guidance), and is often used in negotiations across the country. But the negotiation is never straight-forward, even in London where the provisions are so standardised. What should be the triggers; what is opened up on the review (and is it just a review of what has been developed so far or is it also an updated estimate of what has not yet been built); what proportion of the surplus should be retained by the developer so as to provide any incentive; what should be the cap on what can be secured on review (vital, as all of this is very sensitive to funders and lenders); what should any surplus be applied towards and what say does the developer has in this?
The threat of compulsory purchase in the case of recalcitrant landowners? That takes us back to the issues I covered in that Hope/No Hope blog post. In some cases, perhaps so, but of course as I have mentioned above, even acquisition of land at existing use value (which obviously would lead to protracted wrangling in many cases) does not always guarantee project viability.
SIMONICITY 