Beautiful Day

I threw those curtains wide, drinking in the morning emails and there it was: MHCLG press release 30 January 2021, All new developments must meet local standards of beauty, quality and design under new rules.

Consultation is now running until 27 March 2021 on:

National Planning Policy Framework and National Model Design Code: consultation proposals

National Planning Policy Framework Draft text for consultation

Draft national design code

Guidance notes on design codes

The proposals seek to give effect to the Building Better Building Beautiful Commission’s recommendations that I summarised in my 1 February 2020 blog post Beauty Duty.

“The National Model Design Code is intended to form part of the government’s planning practice guidance. It is not a statement of national policy. However, once finalised, the government recommends that the advice on how to prepare design codes and guides is followed.”

I will leave others to comment on the draft national design code and the proposed “beauty” related changes to the NPPF (the consultation proposals identify the changes and the draft revised text is helpfully marked-up to show all the textual changes).

However, you should note that the draft NPPF changes go wider:

“We have also taken this opportunity to make a number of environment-related changes, including amendments on flood risk and climate change. The amendments also include a small number of very minor changes arising from legal cases, primarily to clarify the policy. A few minor factual changes have also been made to remove out-of-date text (for example, the early thresholds for the Housing Delivery Test), to reflect a recent change made by Written Ministerial Statement about retaining and explaining statues, and an update on the use of Article 4 directions.

As summarised in the consultation proposal, the draft revised text:

Implements policy changes in response to the Building Better Building Beautiful Commission recommendations

• Makes a number of changes to strengthen environmental policies – including those arising from our review of flood risk with Defra

• Includes minor changes to clarify policy in order to address legal issues

• Includes changes to remove or amend out of date material

• Includes an update to reflect a recent change made in a Written Ministerial Statement about retaining and explaining statues.

• Clarification on the use of Article 4 directions

Some points that immediately leapt out (this is not a comprehensive list):

Overarching objectives of the planning system

Paragraph 8 of the NPPF has been amended to refer to refer to “beautiful, well-designed and safe places” (previously “a well-designed and safe built environment”).

The presumption in favour of sustainable development

Paragraph 11 (a) has been amended to read:

“all plans should promote a sustainable pattern of development that seeks to: meet the development needs of their area; align growth and infrastructure; improve the environment; mitigate climate change (including by making effective use of land in urban areas) and adapt to its effects”.

(The previous wording was “plans should positively seek opportunities to meet the development needs of their area, and be sufficiently flexible to adapt to rapid change”).

Article 4 directions

“We also propose clarifying our policy that Article 4 directions should be restricted to the smallest geographical area possible. Together these amendments would encourage the appropriate and proportionate use of Article 4 directions.”

This is really interesting, particularly in the context of the proposed class E to C3 permitted development right. The proposed wording is pretty tight:

The use of Article 4 directions to remove national permitted development rights should

• where they relate to change of use to residential, be limited to situations where this is essential to avoid wholly unacceptable adverse impacts

• [or as an alternative to the above – where they relate to change of use to residential, be limited to situations where this is necessary in order to protect an interest of national significance]

• where they do not relate to change of use to residential, be limited to situations where this is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 directions to require planning permission for the demolition of local facilities)

• in all cases apply to the smallest geographical area possible.”

Larger scale residential proposals

There is an amendment to paragraph 73 to require that these should include “a genuine choice of transport modes”.

Isolated homes in the countryside

The design should now be “outstanding”. The “or innovative” is gone.

Affordable home ownership

“Paragraph 64 has been amended to clarify that, where major development involving the provision of housing is proposed, planning policies and decisions should expect at least 10% of the total number of homes to be available for affordable home ownership. This is to address confusion as to whether the 10% requirement applies to all units or the affordable housing contribution.”

Neighbourhood plan allocations

Paragraph 69 has been amended to remove any suggestion that neighbourhood plans can only allocate small or medium sites. This was not the policy intention, so the wording has therefore been amended to clarify that neighbourhood planning groups should also give particular consideration to the opportunities for allocating small and medium-sized sites (of a size consistent with paragraph 68a) suitable for housing in their area.

Trees

A new paragraph 130:

“Trees make an important contribution to the character and quality of urban environments, and can also help mitigate and adapt to climate change. Planning policies and decisions should ensure that new streets are tree-lined [Unless, in specific cases, there are clear, justifiable and compelling reasons why this would be inappropriate], that opportunities are taken to incorporate trees elsewhere in developments (such as community orchards), that appropriate measures are in place to secure the long- term maintenance of newly-planted trees, and that existing trees are retained wherever possible. Applicants and local planning authorities should work with local highways officers and tree officers to ensure that the right trees are planted in the right places, and solutions are found that are compatible with highways standards and the needs of different users.”

The “well-designed” test

Paragraph 133:

“133. Development that is not well designed should be refused, especially where it fails to reflect local design policies and government guidance on design, taking into account any local design guidance and supplementary planning documents which use visual tools such as design guides and codes. Conversely, significant weight should be given to:

a) development which reflects local design policies and government guidance on design, taking into account any local design guidance and supplementary planning documents which use visual tools such as design guides and codes; and/or

b) outstanding or innovative designs which promote high levels of sustainability,, or help raise the standard of design more generally in an area, so long as they fit in with the overall form and layout of their surroundings.”

Development affecting the setting of national parks and AONBs

“New paragraph 174 has been amended in response to the Glover Review of protected landscapes, to clarify that the scale and extent of development within the settings of National Parks and Areas of Outstanding Natural Beauty should be sensitively located and designed so as to avoid adverse impacts on the designated landscapes.”

Historic statues, plaques and memorials

(which was going to be the subject of this week’s blog post until the curtains/drinking in the emails moment)

“New paragraph 196 has been added to clarify that authorities should have regard to the need to retain historic statues, plaques or memorials, with a focus on explaining their historic and social context rather than removal, where appropriate.”

This of course supplements Robert Jenrick’s statement to the House of Commons (18 January 2021) and MHCLG’s 17 January 2021 press statement, New legal protection for England’s heritage.

As a draft for consultation in my view the consultation material so far has only limited weight for decision makers and, as is usually and appropriately the case, the final documents may be subject to change. However, there is much for us all to get to grips with – and comments on the national design code are for another day.

Simon Ricketts, 30 January 2021

Personal views, et cetera

Avoiding Dover-type reasons JRs

Planning committees that resolve to approve planning applications against officers’ recommendations need to be careful not to fall foul of a JR if their reasoning is inadequate. The risks are particularly high in EIA cases and where there are other sensitive elements. Although Laws LJ described it as an “unusual case”, R (CPRE Kent) v Dover District Council & China Gateway International Limited  (Court of Appeal, 14 September 2016) should be a watchword for caution. 
The Court of Appeal quashed an LPA’s decision, taken contrary to officers’ advice, to approve a scheme for major development in the Kent Downs AONB. It was said to be uncontentious between the parties that “the scale of the proposed development is unprecedented in an AONB”. Officers had recommended that the scheme would only be acceptable with changes to its layout, which the applicant claimed would make the scheme unviable. The officers’ report analysed the issues in detail and set out out the policy tests in paragraphs 115 and 116 of the NPPF:
“115. Great weight should be given to conserving landscape and scenic beauty in… Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty…

116. Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated that they are in the public interest. Consideration of such applications should include an assessment of:

The need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;

The cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way;

Any detrimental effect on the environment, the landscape and recreational opportunities and the extent to which that could be moderated.”

The members’ reasoning for disagreeing with their officers’ recommendation was briefly summarised in the committee minutes, referring to the benefits flowing from the development, the belief that harm could be minimised with effective screening and concluding that the advantages outweighed the harmful impact on the AONB. 

The Court of Appeal summarised the relevant law on the standard of reasoning required of a decision maker, setting out the classic passage from South Bucks v Porter (No 2) (2004):

36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

The court referred to the recent judgment by Lang J in R (Hawksworth Securities plc) v Peterborough City Council  (Lang J, 26 July 2016) where she had taken a light-touch approach to scrutiny of LPA decisions partly on the perhaps weak basis that it would be “unduly onerous to impose a duty to give detailed reasons…given the volume of applications to be processed”. The court didn’t suggest that her reasoning was “wrong in principle” but that “Lang J’s approach needs to be treated with some care. Interested parties (and the public) are just as entitled to know why the decision is as it is when it is made by the authority as when it is made by the Secretary of State”. 

The court drew attention to features of the Dover case which pointed away from her approach:
– the nature of the development proposed as against the AONB policy tests

– the fact that the committee was departing from the officers’ recommendation, meaning that it should, “if but briefly”, engage with the officers’ reasoning

– the fact that here there was a statutory duty to give reasons by virtue of Regulation 24(1) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011  .
On the facts it was held that the reasoning was not adequate to show whether the Committee had accepted the officers’ assessment of the harm that would be caused, whether the Committee had gone wrong in carrying out a balancing exercise of harm versus benefits (which would not be sufficient to meet the policy tests) or how any screening would make a substantial difference. End of permission. 
A few concluding comments: 
1. An applicant in the happy position of having persuaded a committee to approve an application in the face of an officers’ recommendation to refuse should make sure that the committee’s reasoning is sufficient to address the main elements of the officers’ recommendations. Often this will not necessarily be the case. For example, at its most basic, varying approaches are taken by authorities as to the brevity of their minutes. If in doubt, err on the side of a full record of what was said. It is odd that many authorities still do not record debates digitally or make them available for subsequent scrutiny as a matter of course.

2. No reference was made in the judgment to the statutory duty on decision makers in section 85 of the Countryside and Rights of Way Act 2000, in exercising or performing any functions in relation to, or so as to affect, land in an AONB, to “have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty”. It is a very broad test and I assume the court and the parties took the position that it was automatically met if the NPPF policy tests in paragraphs 115 and 116 were met. 
3. Regulation 24(1) of the EIA Regulations 2011 is one of many elephant traps in the planning system: 

“Where an EIA application is determined by a local planning authority, the authority shall—

(a)in writing, inform the Secretary of State of the decision;

(b)inform the public of the decision, by local advertisement, or by such other means as are reasonable in the circumstances; and

(c)make available for public inspection at the place where the appropriate register (or relevant section of that register) is kept a statement containing—

(i)the content of the decision and any conditions attached to it;

(ii)the main reasons and considerations on which the decision is based including, if relevant, information about the participation of the public;

(iii)a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development; and

(iv)information regarding the right to challenge the validity of the decision and the procedures for doing so.

These requirements are easy to overlook. 

4. Laws LJ concluded his judgment by remarking that the “scale of the proposed development is unprecedented in an AONB”. If I can be permitted a partizan remark, he would do well to see the implications of HS2 for the Chilterns AONB, in relation to which I would argue that the Commons Select Committee’s 22 February 2016 conclusions  were inadequate…
Simon Ricketts, 16.9.16

Personal views, et cetera