Big EU News! (Latest CJEU Case on Appropriate Assessment & A Draft Withdrawal Agreement)

The European Court of Justice is certainly turning the screws this year via various cases in relation to the Republic of Ireland, with now three rulings against its Planning Board, An Bord Pleanála. Following People Over Wind (see my 20 April 2018 blog post EU Court Ruling: Ignore Mitigation Measures In Habitats Screening) and Grace, Sweetman (see the second half of my 18 August 2018 blog post What Is Mitigation?) we now have Holohan (CJEU, 7 November 2018).

In basic summary:

People Over Wind has removed the ability for the competent authority to screen out the need for appropriate assessment, under the Conservation of Habitats Regulations 2017, on the basis that a significant effect on a Special Protection Area or Special Area of Conservation is unlikely, where that conclusion is reliant on proposed mitigation measures. The result has been far more projects and plans requiring appropriate assessment to ascertain that they will not adversely affect the integrity of the relevant SPA or SAC.

Grace, Sweetman has removed the ability for the competent authority to reach a conclusion at appropriate assessment stage that there will be no adverse effect on integrity, where mitigation measures are relied on that in reality amount to compensatory measures for the loss of habitat.

Holohan now imposes more detailed requirements on the competent authority at appropriate assessment stage:

1.  […] an ‘appropriate assessment’ must, on the one hand, catalogue the entirety of habitat types and species for which a site is protected, and, on the other, identify and examine both the implications of the proposed project for the species present on that site, and for which that site has not been listed, and the implications for habitat types and species to be found outside the boundaries of that site, provided that those implications are liable to affect the conservation objectives of the site.

2.  […] the competent authority is permitted to grant to a plan or project consent which leaves the developer free to determine subsequently certain parameters relating to the construction phase, such as the location of the construction compound and haul routes, only if that authority is certain that the development consent granted establishes conditions that are strict enough to guarantee that those parameters will not adversely affect the integrity of the site.

3.   […] where the competent authority rejects the findings in a scientific expert opinion recommending that additional information be obtained, the ‘appropriate assessment’ must include an explicit and detailed statement of reasons capable of dispelling all reasonable scientific doubt concerning the effects of the work envisaged on the site concerned.

If you are relying on an appropriate assessment in relation to a project or plan, I suggest that you urgently check that it addresses these three requirements. An decision taken in reliance upon an appropriate assessment which does not cover off these points will be susceptible to legal challenge. If caught at the right time, deficiencies should be able to be addressed by some extra work. But it will be too late to rectify matters once the appropriate assessment is reached and the decision taken.

These CJEU rulings are unambiguous in their stated conclusions on the law, very different from our common law approach.

They are also likely to continue to be relevant, regardless of what happens with Brexit. After all, as set out in my 18 September 2018 blog post Planning, Brexit, Michael Gove as Secretary of State for Environment, Fisheries and Rural Affairs has committed that:

Where environmental principles are contained in specific pieces of EU legislation, these will be maintained as part of our domestic legal framework through the retention of EU law under the EU (Withdrawal) Bill. Any question as to the interpretation of retained EU law will be determined by UK courts in accordance with relevant pre-exit CJEU case law and general principles, subject to the other exceptions and restrictions within the Bill. For example, CJEU case law on chemicals, waste and habitats includes judgments on the application of the precautionary principle to those areas. This will therefore be preserved by the Bill“.

As set out in that blog post, we are still waiting for the draft Bill, required by section 16 of the EU (Withdrawal) Act to be published by Boxing Day 2018, that will set out the environmental principles to be applied post Brexit and the body that will enforce them.

What we now have seen of course is the draft withdrawal agreement published on 14 November 2018. Who knows whether it will be concluded but it envisages that the CJEU will continue to have jurisdiction in any proceedings brought against the UK during the transition period to 31 December 2020.

In the event of the backstop being triggered at the end of the transitional period if the Irish border issue hasn’t been settled, a series of commitments in relation to environmental protection will kick in, as set out in Part 2 of Annex 4 to the Protocol on Northern Ireland/Ireland (pages 356 to 360 of the overall draft agreement). The commitments include:

– Non-regression in level of environmental protection subsisting at the end of the transitional period.

– The principles to be reflected in legislation:

a)  the precautionary principle;
b)  the principle that preventive action should be taken;

c) the principle that environmental damage should as a priority be rectified at source; and
d)  the “polluter pays” principle

– The Joint Committee shall adopt decisions laying down minimum commitments for:

a)  the reduction of national emissions of certain atmospheric pollutants;
b)  the maximum sulphur content of marine fuels

c) those best available techniques, including emission limit values, in relation to industrial emissions

– Commitment to meet international obligations as to addressing climate change

– Commitment to carbon pricing and trading of allowance consistent with EU system

– Finally, although much of this is already in hand via section 16 of the EU (Withdrawal) Act and/or the subject of other international obligations, a commitment to effective enforcement of environmental laws as well as the following:

The United Kingdom shall ensure that administrative and judicial proceedings are available in order to permit effective and timely action by public authorities and members of the public against violations of its laws, regulations and practices, and provide for effective remedies, including interim measures, ensuring that any sanctions are effective, proportionate and dissuasive and have a real and deterrent effect.

The United Kingdom shall implement a transparent system for the effective domestic monitoring, reporting, oversight and enforcement of its obligations pursuant to this Article and to Article 2 by an independent and adequately resourced body or bodies…

The independent body shall have powers to conduct inquiries on its own initiative concerning alleged breaches by public bodies and authorities of the United Kingdom, and to receive complaints for the purposes of conducting such inquiries. It shall have all powers necessary to carry out its functions, including the power to request information. The independent body shall have the right to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure, with a view to seeking an adequate remedy.”

Professor Colin Reid’s 15 November 2018 blog post Environmental Commitments in the Withdrawal Agreement is a very good commentary on all of these provisions.

Finally, fabulous timing on the part of UKELA to have secured for next week’s annual Garner lecture Professor Juliane Kokott, Advocate General at the CJEU (who has been at the centre of so much EU case law, including the People Over Wind and Holohan cases referred to above). It will be fascinating to hear her perspective.

Simon Ricketts, 16 November 2018

Personal views, et cetera

PS David Elvin QC has since reminded me that the CJEU also on 7 November handed down its judgment in the Dutch Nitrogen Deposition case, which also contains important rulings in relation to appropriate assessment, for instance the extent to which agricultural activities amount to a “project”, as well as the extent of certainty required if conservation measures are to be relied upon as mitigation. See James Maurici QC’s blog post.

Planning, Brexit

In all the Brexit noise, like me you may have missed that a draft Bill of Parliament is shortly to be published by DEFRA that will have direct relevance for English planners and planning lawyers.

The European Union (Withdrawal) Act 2018 was enacted on 26 June 2018. As a result of amendments to the Bill introduced in the House of Lords and substantially accepted when the Bill returned to the Commons, section 16 of the Act seeks to secure that “environmental principles” are maintained once we leave the EU and we no longer have the monitoring and enforcement functions currently being carried out by the European Commission and European Court of Justice. It provides as follows:

Maintenance of environmental principles etc.

(1) The Secretary of State must, within the period of six months beginning with the day on which this Act is passed, publish a draft Bill consisting of—

(a)  a set of environmental principles,

(b)  a duty on the Secretary of State to publish a statement of policy in relation to the application and interpretation of those principles in connection with the making and development of policies by Ministers of the Crown,

(c)  a duty which ensures that Ministers of the Crown must have regard, in circumstances provided for by or under the Bill, to the statement mentioned in paragraph (b),

(d)  provisions for the establishment of a public authority with functions for taking, in circumstances provided for by or under the Bill, proportionate enforcement action (including legal proceedings if necessary) where the authority considers that a Minister of the Crown is not complying with environmental law (as it is defined in the Bill), and

(e)  such other provisions as the Secretary of State considers appropriate

(2) The set of environmental principles mentioned in subsection (1)(a) must (however worded) consist of—

(a)  the precautionary principle so far as relating to the environment,

(b)  the principle of preventative action to avert environmental damage,

(c)  the principle that environmental damage should as a priority be rectified at source,

(d)  the polluter pays principle,

(e)  the principle of sustainable development,

(f)  the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,

(g)  public access to environmental information,

(h)  public participation in environmental decision-making, and

(i)  access to justice in relation to environmental matters.”

This was not a big concession for the Government to make. In January 2017 the Commons Environmental Audit Committee recommended that the Government introduce an Environmental Protection Act to ensure that environmental enforcement and governance mechanisms were not lost after leaving the European Union.

The Government committed to consulting “early in 2018” on “establishing a new, world-leading, independent, statutory body to give the environment a voice, championing and upholding environmental standards as we leave the European Union” in DEFRA’s 25 Year Environment Plan (11 January 2018)

In England DEFRA on 10 May 2018 started a consultation process, Environmental Principles and Governance after EU Exit, which closed on 2 August 2018. The consultation paper indicates that the proposed Environmental Principles and Governance Bill will be published in draft in “Autumn 2018“, although as a result of section 16 the absolute statutory deadline for publication of the draft is 26 December.

The Environmental Principles and Governance Bill will need to provide for:

⁃ the formulation of a set of environmental principles to be adhered to; and

⁃ the establishment of an independent body to enforce environmental law.

The DEFRA consultation paper does not go into much detail. It sets out the following basic position:

Where environmental principles are contained in specific pieces of EU legislation, these will be maintained as part of our domestic legal framework through the retention of EU law under the EU (Withdrawal) Bill. Any question as to the interpretation of retained EU law will be determined by UK courts in accordance with relevant pre-exit CJEU case law and general principles, subject to the other exceptions and restrictions within the Bill. For example, CJEU case law on chemicals, waste and habitats includes judgments on the application of the precautionary principle to those areas. This will therefore be preserved by the Bill.” (paragraph 26)

The consultation paper invites views from consultees as to whether the environmental principles (without giving any detail as to what these principles will look like) should be articulated in the Bill itself or should be left to be addressed in a subsequent statutory policy statement.

The list of environmental principles in section 16 (2) is plainly potentially relevant to every aspect of the planning system, but we need to see the detail!

The consultation paper proposes the following in relation to the proposed independent body:

Objectives for the establishment of the body are that it should:

⁃ Act as a strong, objective, impartial and well-evidenced voice for environmental protection and enhancement.

⁃ Be independent of government and capable of holding it to account.

⁃ Be established on a durable, statutory basis.

⁃ Have a clear remit, avoiding overlap with other bodies.

⁃ Have the powers, functions and resources required to deliver that remit.

⁃ Operate in a clear, proportionate and transparent way in the public interest, recognising that it is necessary to balance environmental protection against other priorities. ”

There is a specific section in the consultation paper in relation to the potential relevance of the body to the operation of the planning system:

Interaction with the planning system

133. Planning aims to ensure that the right development happens in the right place at the right time, benefiting communities and the economy. It plays a critical role in identifying what development is needed and where, what areas need to be protected or enhanced and in assessing whether proposed development is suitable.

134. The new body’s functions in relation to environmental aspects of the planning framework would need to work alongside, while ensuring clear boundaries between, the established systems in place for scrutiny of and appeal against planning decisions and development plans. The intention would be that individual decisions made under relevant planning legislation would continue to be handled under the existing processes.

135. As with other areas of environmental law, we need to consider how the body would interact with the existing planning system in relation to environmental laws that apply to planning activities, notably those concerning implementation of habitats regulations assessments, environmental impact assessments and strategic environmental assessments. This should not be a case-by-case review of decisions regarding development plans and proposals, which would be duplicative and would amount to another tier in the planning process. The body would have no role in individual planning policy decisions. The focus of the new body would therefore be on ensuring the correct application of relevant environmental law within the planning system.

136. In relation to wider planning policy, the body could have two roles. Firstly, it could be a key consultee, when certain planning policy is being considered, for example when the National Planning Policy Framework is updated. Furthermore, if the body has a wider policy role, it could provide advice on the implementation of the environmental aspects of existing planning policy and suggest future potential changes. The government would not be bound to agree to such suggestions, but should consider them alongside wider policy aims

All sorts of questions of course arise from these proposals:

– how detailed will the environmental principles be? Will the principles contain targets in the manner of DEFRA’s 25 Year Environment Plan (11 January 2018) or will they be a generic summary of the principles currently underlying EU environmental legislation along the lines of, for instance article 191 of the Treaty of the Functioning of the European Union (and if so how useful will they be?).

⁃ to the extent that the principles, such as the “principle of sustainable development” overlap with existing guidance, for instance within the NPPF, will the principles (having a statutory basis) be relevant to decision making in relation to applications and appeals and to plan making? How can we avoid unanticipated effects in that regard? Even if the intention is to retain the status quo, at least for the time being, how easy will that be?

⁃ will Parliament kick the can down the road by relegating the principles to a statutory policy statement, for how long will this be, what will be the consultation process, what voting process will be required within Parliament and what will be the mechanism for making subsequent amendments?

⁃ Surely it is for the courts to ensure “the correct application of relevant environmental law within the planning system“? Non-legally binding views from this new authority on the way in which the law is to be interpreted, beyond views already formally expressed by ministers or government bodies such as the Environment Agency, Natural England or Historic England, may just add confusion.

⁃ how can a body be created which does not overlap with existing bodies such as the Environment Agency, has a “baked in” constitutional status and which is not susceptible to lobbying and repeated judicial reviews?

⁃ whilst the proposed body is not intended to be embroiled in individual planning decisions, what safeguards will there be as to its potential influence on planning outcomes in other ways, for instance through expressing views on types of development?

⁃ to what extent will there be coordination and consistency as between England and the devolved nations?

⁃ depending on the nature of any Brexit transitional arrangements, what about the interregnum between the cessation of the European Commission and European Court of Justice’s jurisdiction and the establishment of new regimes within England, Wales, Scotland and Northern Ireland? 26 December 2018 is only the deadline for the draft Bill. How long before the Bill itself is introduced, enacted and brought into force, with this new body up and running? If we have a “deal” and a transition period, time will be tight but there may not be a gap. If there is “no deal”, there will be a period before the promised structure is in place, indeed there will be no environmental principles in place, nor an independent body to ensure compliance.

The Commons Environmental Audit Committee has been conducting the Environmental Governance Consultation Paper Inquiry seeking answers to a number of questions along these lines. Michael Gove gave evidence to the inquiry on 11 July 2018. The session is pretty unedifying with much attempted point scoring but there are some interesting exchanges.

For example, the Committee chair asked how the policy statement for the principles will be developed and scrutinised:

Michael Gove: I think that it would be developed within the Government, like any other policy statement. An analogy has been drawn—no analogy is perfect—with the National Planning Policy Framework. I would propose or suggest that the Government draw up their policy statement. Obviously it would be up to any Government Minister as to how they would set about gathering evidence, consulting, and making clear what the means might be for shaping that policy statement. Then I hope that it would be presented to the House of Commons and then debated and voted on in the House of Commons.

Chair: That is where the row is going to happen again, is it not? Across Government the rows will come back in from Treasury, from DCLG, and from Transport about how this is not going to be accepted by Ministers. Then you are going to have all the green groups and the NGOs rightly asking for much higher standards. What is the process of engaging with the public? You are saying there is a legal policy process in the Government. How long will the public have to look at this statement?

Michael Gove: That is a very fair point. One of the things is we want to have it debated and voted on in Parliament, to take the concerns you have. Were there to be a future Government Minister in another Government Department that wanted in some way to include in the policy statement things that you or I might think were not necessarily a good idea for the better protection of our environment, were that hypothetical future Minister to prevail in the shaping of the policy statement in a way that you or I might not altogether approve of, when it came to the House of Commons I think it would be the case that the NGOs that you mention and members of the public or you or I might say, “Hmm” and would seek therefore to say, “I am sorry, as you bring this forward, I do not think you will necessarily get a majority in the House of Commons for this provision, because it will be seen as weakening protection. Therefore, we in the House of Commons will not stand for it”.

In the same way as the House of Commons and the House of Lords together amended the EU (Withdrawal) Bill in a particular way, so I could see a situation in the future where the prospect of defeat in the House of Commons for a particular proposition might lead the Government to then amend their policy statement so that the hypothetical Minister in a future case who might have wanted to weaken protections would find that his or her ambitions were thwarted by the democratic majority in the House.”

The Committee had originally hoped to conclude the inquiry by DEFRA’s consultation deadline of 2 August but we still await its report. I hope that its conclusions will be able to be taken into account by DEFRA before it proceeds to publish its draft Bill, although I suspect we have a long way to go before an actual set of principles starts to emerge, alongside a clearer idea as to the nature of the authority that is to hold the ring on all of this.

In the meantime of course, existing legislation will need to be scrubbed free, via statutory instruments, of any references to EU law, to be replaced by references to the relevant EU legislation frozen at time of exit or relevant domestic legislation, but that will not be where the substantive effects are likely to be felt. Instead, watch out for the draft Bill and surrounding announcements and let’s be alert for any unintended implications for our town and country planning system.

Simon Ricketts, 18 September 2018

Personal views, et cetera

What If? The Trinity One Case

What if your development were subject to a section 106 agreement that provided for a commuted sum to be paid towards affordable housing, the precise amount payable to be calculated in accordance with a formula; at the date that the agreement was completed in 2003 the formula would have arrived at a commuted sum of between £500,000 and £700,000 but by the time that it was triggered the basis for calculating the formula had been abolished and so there was no way of arriving at an appropriate figure? Would you go to the High Court and Court of Appeal to seek to resist a claim from the local planning authority that was seeking a sum of £533,058 plus interest?

Well that was what the developer did in the Council of the City of York v Trinity One (Leeds) Limited (Court of Appeal, 21 February 2018). Not only that but they pursued a separate section 106BA and BC application and appeal, before the 30 April 2016 deadline for applications under that procedure, to seek to argue that in any event it should be released from the obligation in order to prevent its development from being economically unviable (a process where it is separately currently pursuing a second judicial review). I don’t know the facts beyond what is stated in the Court of Appeal’s judgment but I would suspect that this saga must pretty much have cost the parties in legal fees the sum being fought over and there remains the possibility of the local planning authority losing out on a substantial contribution towards affordable housing. Mediation anyone?

Hindsight is of course a wonderful thing but the dispute has arisen from not enough “what if?” questions being asked when the agreement was negotiated in 2003.

The relevant clause in the agreement provided that the commuted sum “shall be calculated on the amount of Social Housing Grant necessary to secure affordable rented homes of an equivalent type and size on another site [in a similar residential area in the City of York] which grant for the avoidance of doubt shall be calculated at normal grant levels from regional TCI tables provided on an annual basis by the Housing Corporation or such equivalent grant calculation current at the time and supported by the Housing Corporation”.

Social Housing Grant was defined as “the grant that may be provided in respect of affordable housing in the Council’s administrative area in accordance with Government and Housing Corporation Guidance.”

Some of you may remember the Total Cost Indicator tables that were previously used by the (now defunct) Housing Corporation as a basis for calculating the level of (now defunct) Social Housing Grant.

The lawyers negotiating the agreement at least had asked themselves what if TCI tables were no longer provided on an annual basis by the Housing Corporation but beyond that there was little imagination as to how far the affordable housing funding arrangements might change: if TCI tables ceased to be published, the calculation was to be done on the basis of “such equivalent grant calculation current at the time and supported by the Housing Corporation”. Hmm. No “what if social housing grant and/or the Housing Corporation cease to exist“? No provision for the parties to agree another reasonable benchmark, with the ability to go to an independent expert in the event of dispute?

The Court of Appeal identified that the issue “turns on the balance between giving effect to the intention of the parties and the language of the contract“. It upheld the ruling of the High Court that the clause was not unenforceable due to the lack of certainty as to how the sum was now to be calculated. The court sets out in some detail the approach to be taken, drawing upon principles articulated by the Supreme Court in Arnold v Britton (Supreme Court, 10 June 2015).

The Supreme Court in that case had considered the interpretation of service charge contribution provisions in the leases of a number of chalets in a caravan park in South Wales, and whether annual increases in service charge were to be calculated on a compound basis, resulting in absurdly high increases. Lord Neuberger summarised the correct approach as follows:

When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean”, to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 14. And it does so by focussing on the meaning of the relevant words, in this case clause 3(2) of each of the 25 leases, in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions.”

Lord Neuberger set out six principles and the Court of Appeal in Trinity One drew particularly the first and sixth:

First, the reliance placed in some cases on commercial common sense and surrounding circumstances (eg in Chartbrook, paras 16-26) should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision.”

Sixthly, in some cases, an event subsequently occurs which was plainly not intended or contemplated by the parties, judging from the language of their contract. In such a case, if it is clear what the parties would have intended, the court will give effect to that intention. An example of such a case is Aberdeen City Council v Stewart Milne Group Ltd[2011] UKSC 56, 2012 SCLR 114, where the court concluded that ‘any … approach’ other than that which was adopted ‘would defeat the parties’ clear objectives’, but the conclusion was based on what the parties ‘had in mind when they entered into’ the contract (see paras 17 and 22).”

Applying these principles, the Court of Appeal in Trinity One identified that:

⁃ the intention of the parties was that a commuted sum was to be paid.

⁃ the uncertainty related to quantification rather than the principle of payment.

⁃ “It would defeat the underlying purpose of the Agreement if the clause were unenforceable due to lack of certainty. The consequence would be that TOL would receive the benefit of planning permission without providing affordable housing or a commuted sum. In simple terms, that was not the bargain.”

⁃ “…the quantification of that sum should be that which is equivalent to the amount of money which would have been provided had the SHG remained in being. Although this is a departure from the literal words of the contract, this is the only sensible solution to the problem posed by the abolition of the SHG on which the clause is premised. The clause provides that the developer should pay enough money so that the Council can provide equivalent affordable housing: the best the court can do is work out a roughly equivalent figure for that sum.”

⁃ The figure that had been arrived at of £533,508 was a “reasonable attempt to reach a figure equivalent to the SHG which would have been payable before 2006“.

To a non-lawyer this may all seem obvious, but who wants to go to the Court of Appeal to establish what a provision means, just because not enough “what if” questions weren’t asked at the outset?

York Council isn’t yet entirely out of the woods. I mentioned the pending judicial review in relation to the developer’s section 106BC appeal. The Court of Appeal held that if the section 106BC appeal is ultimately successful, it will have retrospective effect notwithstanding that the council’s rights to be paid had already accrued. That seems strange to me, but given that the section 106BA and BC procedure is no longer available, this issue is of limited continuing wider relevance.

So please remain patient when your solicitor asks you yet another series of “what if” questions. In another part of our legal world, the European Medicines Agency is reported to be seeking to set aside its lease at Canary Wharf on the basis that Brexit will amount to an event of frustration. It was reported elsewhere that the “what if” question may in fact have been asked and then set on one side. Now that can be even more awkward.

This blog post is a belated companion to my 14 October 2017 post, Flawed Drafting: Interpreting Planning Permissions.

Simon Ricketts, 8 September 2018

Personal views, et cetera

Everyone Knows This Is Nowhere: Devolution

The prospect of devolution can perhaps cause people to get too excited (Brexit; Catalonia) or perhaps not excited enough (the last Labour Government’s experiment with regional assemblies; the current roll-out of combined authorities). Predictably, this blog post focuses on the latter category. 
First of all, in order to understand planning in Great Britain you need to understand its post-devolution administrative structure, following the enormous changes of the last 20 years. 
It is now 20 years since referendums in Scotland and Wales led to the creation of the Scottish Parliament and National Assembly for Wales, with the Good Friday Agreement and Northern Ireland Act 1998 following a year later, leading to the creation of the Northern Ireland Assembly. 
Slowly but surely, four different planning systems have developed, summarised in a January 2016 House of Commons library briefing paper, Comparison of the planning systems in the four UK countries.
In relation to English devolution issues, perhaps dull is good, with arguments often focusing on worthy but dull questions of efficiency of administration and decision making, and the unlocking of funding streams. 

Directly elected regional administration of London was reintroduced in 2000 following a referendum in May 1998, in which there was a 72% majority vote (out of a 34% turnout) for the establishment of the Greater London Authority, to be led by an elected Mayor. Despite the low turnout, the size of the “yes” vote did seem to recognise the need for a unified voice for London that had been missing since the abolition of the Greater London Council in 1986. 
The Labour Government of the time attempted to use elements of the London model to introduce directly-elected regional assemblies across England. However, it became plain that there simply was not the public appetite. Voters rejected the proposal for a regional assembly for the North East 77.9% to 22.1%, on a turnout of 48% in November 2004 and other proposed referendums for the North West and for Yorkshire and the Humber were then dropped. Whilst there is still some nostalgic harking back to the regional planning of the time, the ridiculously complicated structure in the Planning and Compulsory Purchase Act 2004 took the form of regional spatial strategies, prepared by ‘regional planning bodies’, comprising regional assemblies of co-opted local authority members. The process was closely overseen by central Government and indeed each final regional spatial strategy was published by the Government. So, hardly devolution – and with regional boundaries that often had no historic or emotional basis – although a potentially helpful administrative structure for coordinating local authorities and determining local authority housing targets.
Regional spatial strategies, along with all mentions of the “r” word including the regional planning boards, regional assemblies and regional development agencies (save for the London Development Agency, which survived a little longer) were swept away following the coalition Government coming into power in 2010. The new mantra of localism dictated the removal of top-down targets in favour of the bottom-up idea that it would be more effective for local authorities to determine how to meet their and their neighbours’ housing needs via the Localism Act 2011’s “duty to cooperate”, a Cheshire cat’s smile if ever one there was. Coordinated investment into the regions, including application of EU structural funds, became more difficult following the abolition of the regional development agencies, a vacuum only partly filled by LEPs (voluntary local economic partnerships between local politicians and business people). 
But local politicians (the public? I’m not so sure) continued to press for greater devolution of powers to the regions, particularly against the background of the greater autonomy given to Scotland in particular in the run-up to the 2014 Scottish independence referendum (where there was a 55% vote against independence on an 85% turnout – that was clearly a vote that clearly did matter to its electorate). The Government embarked on negotiating a series of ‘devolution deals’ with groups of local authorities. The first deal, to create the Greater Manchester Combined Authority, was announced in November 2014. 
The Cities and Local Government Devolution Act 2016 was, as set out its explanatory notes, “intended to support delivery of the Government’s [2015] manifesto commitment to “devolve powers and budgets to boost local growth in England”, in particular to “devolve far-reaching powers over economic development, transport and social care to large cities which choose to have elected mayors” and “legislate to deliver the historic deal for Greater Manchester”. The Act takes forward a number of reforms which are intended to allow for the implementation of devolution agreements with combined authority areas and with other areas. It is enabling legislation which provides a legislative framework which can be applied flexibly to different areas by secondary legislation.” 

The devolution deals to date are listed on the Local Government Association’s website. The powers agreed to be devolved have been different in each case. The position is well summarised in a House of Commons library briefing paper, Devolution to local government in England (23 November 2016):


It will be seen that some deals include the power to create a spatial plan for the area, and/or the power to establish Mayoral Development Corporations. Some deals will also permit the combined authority to use compulsory purchase orders, with the consent of the local authority in which the land or property is located.

I looked specifically at the West Midlands Combined Authority in my blog post Devo West Mids (24 October 2016). 
So far we have had mayoral elections for six combined authorities, which all took place in May 2017. Turnouts were all very low indeed:

Whilst regional devolution may not capture the attention of voters (in fact I’m sure it is utterly confusing to most), undoubtedly it presently brings the promise of significant funding streams from Government. Professor Janice Morphet has also pointed in her 2016 book Infrastructure Delivery Planning to the work of economist Paul Krugman in showing the growth in national GDP that can result from investment decisions being made at a sub-national level. More practically, big personalities are important. That has been the experience in London – and Greater Manchester and the West Midlands both now have strong Mayors, in the shape of Andy Burnham and Andy Street respectively, who will undoubtedly drive those great city regions in an equivalent way. 

A further election, in the Sheffield City Region, is due to be held in May 2018. Why the delay in Sheffield? The city region, which will control additional spending of £30m a year over the next 30 years, was originally going to include Chesterfield and Bassetlaw (which authorities would thereby be able to participate in the significant government funding available). However, Derbyshire County Council (which would automatically thereby be drawn into the arrangement and which opposed “powers for key services in the town being handed to a Sheffield City Region Mayor”) successfully judicially reviewed the process, alleging consultation flaws in R (Derbyshire County Council) v Barnsley, Doncaster, Rotherham and Sheffield Combined Authority, Secretary of State and Chesterfield Borough Council (Ouseley J, 21 December 2016). Chesterfield is in the county of Derbyshire and Bassetlaw is in the county of Nottinghamshire. Ouseley J accepted that the views of the public should have been, but were not, specifically sought as to whether Chesterfield Borough Council should be a part of the combined authority. The case led first to the Sheffield City Region mayoral election being delayed by a year and then to Chesterfield and Bassetlaw withdrawing their applications for full membership (in the case of Chesterfield after Derbyshire had resolved in June 2017 to carry out a full referendum of all Chesterfield residents). 
The momentum generally appears to have paused. Section 1 of the Cities and Local Government Devolution Act 2016 places a duty on the Secretary of State to provide annual reports to Parliament setting out progress on devolution across England as soon as practicable after 31 March each year. The Local Government Association is concerned that this year’s report has not yet been published.   
We are at an interesting point. 

First, am I being too downbeat about the benefits of further devolution? I see that Lord Heseltine and Ben Rogers are speaking on Giving Power to the People: The Future of Devolution at the Future City Festival on 19 October 2017. Is there currently the political, or public, will?
Secondly, what now for London? In my view, the devolution of power to London (including reducing to an extent the powers of individual boroughs) has been a success. The moves towards greater powers for the Mayor of London have continued, which is welcome, but should there be more? Ben Rogers wrote an interesting FT piece Would more independence for London benefit the nation? on 3 October 2017.

Thirdly, and most importantly, what changes will Brexit bring? For a start we will see an end to EU structural funding, much of which was to be passed to local areas, although the Government has guaranteed any spending of these funds that is agreed before the UK leaves the EU. But more fundamentally, as again Professor Janice Morphet has pointed out, in her 2017 paper (not yet published) to the Oxford Joint Planning Law Conference we risk losing part of the drive towards devolution that arises from the EU’s principles of subsidiarity and fairness, which translate into for instance the application of structural funds and the development of the Trans European Networks which have been an impetus for transport infrastructure investment. 
Ultimately, might it be the case that some devolution is ruled by the heart and some by the head? English devolution may be in the latter category, described indeed this week in EG this week by Jackie Sadek as a “fragile flower”. Let’s hope it’s not trampled upon by politicians with only a March 2019 deadline in mind. 
Simon Ricketts, 6.10.17
Personal views, et cetera

NIMBY v YIMBY

“Good Grief… anything but address the elephant… the illogical Nimbys” (comment on my last blog post, received via twitter)
I’ve been struggling with “not in my back yard” for a while, almost as bad as the “elephant in the room”.
The Times reported this week a speech by Shelter’s Polly Neate: “Ugly new homes breed nimbys, builders told“.
Canada’s Globe and Mail tells us “Margaret Atwood is a NIMBY – and so are most of us“.

It got me wondering when we all started this absurd Americanised name calling. Wikipedia identifies its first use as in 1980, corroborating a google ngram viewer search which traced its published use back to 1980…

These searches are addictive by the way…


The next morning I was sitting on the train to work, reading John Grindrod’s Outskirts book (buy it) and turned the page to find this passage…


So the derogatory phrase was created by the PR department of a chemical company responsible for the Love Canal pollution scandal that practically singlehandedly led to modern US environmental law in relation to land contamination. Smell a rat?

When someone is objecting to or protesting about something happening in their area, how tempting is it to disregard the objection by labelling it as “nimby” but it’s an ugly blunderbuss of an expression. What if the objection or protest is justified? Who is going to stand up for an area if it isn’t those who live there? Was Jane Jacobs a nimby then? Why does the European Convention on Human Rights protect rights to property (paragraph 1 of the 1st protocol) and to private and family life (article 8)?
The answer is in the respective qualifications to those rights:
– nothing in the right to property “shall impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest”

– the right to private and family life is subject to such interference “as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Of course we know where the finger is being legitimately pointed when people are called out as nimbys – at those who are motivated by overly selfish motives – tranquility and wealth for the few, regardless of the wider public interest. However, are attitudes in fact changing when it comes to housing? A February 2017 report by the National Housing Federation, Demise of the NIMBY: changing attitudes to building new homes, would appear to suggest so.
Predictably, ministers have been on the bandwagon:

Sajid Javid in his speech to Conservative party conference in 2016:

“Everyone agrees we need to build more homes.  

But too many of us object to them being built next to us.  

We’ve got to change that attitude.  

So my message today is very clear: it’s time to get building.

He doesn’t use the “n” word but the reporting of the speech picks up the signalling, because the word is so populist – we all know (or think we know) what it means:
Sajid Javid declares war on ‘Nimbys’ who stand in the way of badly-needed new homes (The Independent)

Sajid Javid attacks ‘nimbyism’ as he calls for 1m new homes (BBC website)

Gavin Barwell was more direct in his speech to the CPRE on 20 February 2017:
“…there are some people who claim the CPRE is merely a respectable front for nimbyism – that behind your public objectives is a private and unrelenting refusal to accept any kind of new development in rural areas.

Of course I know that’s nonsense.

You recognise that well-designed new settlements in sustainable locations can take the pressure off the green belt and you have an unparalleled legacy in influencing the planning system, particularly in the years after the war.

Your vision for garden cities, towns and villages has been adopted by the government. So has your preference for community-design, with extra power and resources for local areas to make this happen.

So now you have got the government behind your ideas I would challenge you to go a step further and prove your detractors wrong.

Support local communities in their quest for good design and actively seek out and champion the best-designed developments – so no one can say your words are not backed up by deeds.”

Is the CPRE a nimby organisation? Well it is certainly depressing to see that members have at their disposal on the CPRE website a copy-and-paste draft letter of objection.
Note the passage in the draft letter that suggests that the objector should draw where relevant on any relevant neighbourhood plan. The Government is of course anxious to distance neighbourhood plans from neighbourhood protectionism. For instance, this is John Howell MP speaking in a debate on neighbourhood planning on 3 July 2017 about those who promote neighbourhood plans:
“I should say at this point that in the main we are not talking about communities who are anti-development; we are talking of communities who want to embrace new housing for the long-term sake of their communities and to ensure that facilities such as pubs and sports clubs do not fall into disuse. They also want new housing above all to cater for younger people and families. There is nothing for the Government to fear here about being in the world of the nimby; neighbourhood plans have allocated some 10% more housing than it was originally suggested they should provide by their district or borough councils. From that point of view, they have been a great success.

This is an assertion which is difficult to square with experience. Time and again development is being delayed or thwarted by neighbourhood plans that have been made following the most light touch of examination procedures. 

Yimbyism is of course the self-referential counter-balance to anti-housing development interests. 

London YIMBY’s report “Yes In My Back Yard: How To End The Housing Crisis, Boost The Economy And Win More Votes was published by the Adam Smith Institute in August 2017. It is disappointing that their proposed solutions would entail further disruptive legislative change (not going to happen) and don’t to me at least (disclosure, I’m presumably part of the problem as one of the “armies of planning lawyers and consultants” on which “billions of pounds” are apparently spent, referred to in the report) seem to be practical in the sense of delivering a simpler, more effective, fairer system:
We propose three policies that would hand power back to residents; ways of solving the housing crisis that will also win political parties votes. Each would make a huge difference alone; together they could have a transformative effect on the housing situation in Britain: 

    1. Allowing individual streets to vote on giving themselves permitted development rights, to build upwards to a maximum of six storeys and take up more of their plots. 


    2. Allowing local parishes to ‘green’ their green belts, by developing ugly or low amenity sections of green belt, and getting other benefits for the community in turn. 

3. Devolving some planning laws to the new city-region mayors including the Mayor of London. Cities could then decide for themselves if they want to expand and grow and permit extra housing, or maintain their current size and character.”

It’s a new movement, originating a couple of years ago in San Francisco but gaining real traction. The New York Times reported in July on its second annual conference: California Today: A Spreading ‘Yimby’ Movement.
Yimbyism is good to see, as long it remains positive and is genuinely springing from communities rather than political activists. But we really need to avoid getting entrenched in “brexiteer”/”remoaner” style tribalism. As with Brexit, the underlying public policy issues are complex and often down to difficult political choices to be made against an impossibly complex economic, environmental and legal background. In a climate where simple messages, right or wrong, have greater potency to influence democracy than ever via social media and elements of the traditional media (and certainly greater potency than what the scorned “experts” may say) the message as to the need for housing and for essential infrastructure must be as clear and non-partisan as possible but at the same time we must treat those with opposing views with respect, winning the intellectual argument with the evidence. How to go about winning hearts and minds? There’s a lot of good sense in Shelter’s March 2015 report Addressing Our Housing Shortage: Engaging the Silent Majority. Labelling people as selfish and insular isn’t going to win any argument. QRED*

*quod referendum erat demonstratum

Simon Ricketts, 2 September 2017
Personal views, et cetera

What The EU (Withdrawal) Bill Would Mean For (eg) EIA

So now we have, without any great surprises, what was first to be the Great Repeal Bill, then the Repeal Bill and now is the European Union (Withdrawal) Bill. It comes alongside extensive Explanatory Notes as well as a Memorandum justifying the use of delegated powers in the Bill .
This is a very narrowly defined blog post, asking myself one question: What does the Bill tell us in England about what will happen to EU law based legislation such as the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 once we reach the “exit date” (defined in the Bill as a date to be appointed by a minister but in practice to be 29 March 2019 or earlier, due to service by the Government of its Article 50 notice on 29 March 2017)? I have confined myself to England: there are additional complexities ahead for the devolved administrations. 
The EIA Regulations are EU-derived domestic legislation, as defined in the Bill, deriving as they do from the EIA Directive ie Directive 2011/92/EU as amended in 2014 by Directive 2014/52/EU. 
Clause 2(1) of the Bill provides:
“EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.

So the Regulations will remain in force unchanged post exit day.   
For the avoidance of doubt clause 5(1) provides:
“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”

So any change to environmental protection that is made following exit date cannot be challenged on the basis that it is contrary to EU law. Legislation excluding say the construction of a specific infrastructure project or type of infrastructure from EIA, or weakening its operation? There would no longer be any recourse to the Court of Justice of the EU (CJEU). But that would be the effect of leaving the EU in any event, so hardly needs to be spelt out. 
(Of course, the Government will need to ensure that any such legislation did not breach other international obligations such as the Espoo Convention and Aarhus Convention – where breaches are far more difficult to challenge by a complainant, whether in the domestic courts or in any international forum)
At present, in interpreting EU-derived legislation, our domestic courts have to apply EU law principles, having regard to decisions of the CJEU. After exit day, this will no longer be the case, in that there will be no requirement to have regard to post exit day decisions. Clause 6(1) provides:
“A court or tribunal

(a)  is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and 

(b)  cannot refer any matter to the European Court on or after exit day.

Clause 6(2) makes it clear that a court may do “if it considers it appropriate to do so” but does not have to. So, (1) there will be uncertainty as to whether to bring post exit day CJEU rulings or advocate-general opinions before the domestic court to assist with interpretation (and so in practice they will be trawled out) and (2) CJEU jurisprudence is likely slowly to take a different direction to that of our domestic courts. Not straight-forward!
For a period from the coming into law of the Bill and two years after exit day, the Government will be going through all EU-law derived legislation, with the objective of making it continue to work post Brexit. Clause 7(1) provides:
A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate— 

(a)  any failure of retained EU law to operate effectively, or 


(b)  any other deficiency in retained EU law, 


arising from the withdrawal of the United Kingdom from the EU. “

The justification in the accompanying memorandum: “Retained EU law will contain thousands of failures and deficiencies. This power enables UK ministers and the devolved authorities to make corrections in time for exit to ensure a functioning statute book.

Clause 7(6) contains some protections:
But regulations under this section may not— 

(a)  impose or increase taxation,

(b)  make retrospective provision, 


(c)  create a relevant criminal offence, 


(d)  be made to implement the withdrawal agreement, 


(e)  amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or 


(f)  amend or repeal the Northern Ireland Act 1998 (unless the regulations
 are made by virtue of paragraph 13(b) of Schedule 7 to this Act or are amending or repealing paragraph 38 of Schedule 3 to the Northern Ireland Act 1998 or any provision of that Act which modifies another enactment). “


The memorandum says this by way of example: “The impact of not making such changes would include inadvertently removing environmental protections. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 require an environmental impact assessment of certain applications for planning permission. They refer to “other EEA States” in a number of places, mainly in the context of development likely to have significant transboundary environmental effects. A correction amending the references to “other EEA States” to “EEA States”, would make it clear that the requirement on transboundary consultation continues to function on exit as it does now. This would remove uncertainty and help ensure that an important piece of environmental protection law continues to operate effectively. “

I referred to obligations arising under other international obligations. Clause 8(1) provides:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent or remedy any breach, arising from 
the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom.

The memorandum more generally seeks to justify the breadth of use of delegated ministerial powers under the Bill:
“i. Time: The two year timetable for exit is provided for in Article 50 of the Treaty on the European Union. Therefore, the UK needs to be in a position to control its own laws from March 2019, which is why the UK Government and devolved administrations need to take a power so they can act quickly and flexibly to provide a functioning statute book. The complexity of identifying and making appropriate amendments to the converted and preserved body of law should not be underestimated. There is over 40 years of EU law to consider and amend to ensure that our statute book functions properly on our exit from the EU. According to EUR- Lex, the EU’s legal database, there are currently over 12,000 EU regulations and over 6,000 EU directives in force across the EU.2 We are not yet in a position to set out in primary legislation how each failure and deficiency should be addressed, nor would it be practical to do so…”

“ii. Practicality: The power will be exercised by UK ministers and the devolved authorities, enabling them to make the necessary corrections to the statute book required to make the law function effectively in their own field of expertise and competence. Making all corrections on the face of the Bill, at this stage, would not be practical. 

iii. Flexibility: Many of the potential deficiencies or failures in law arise in areas in which the UK is considering pursuing a negotiated outcome with the EU. The UK must be ready to respond to all eventualities as we negotiate with the EU. Whatever the outcome, the UK Government and devolved authorities, with the appropriate scrutiny by Parliament and the devolved legislatures, must be able to deliver a functioning statute book for day one post-exit.”

So in the case of environmental impact assessment, are we likely to see any early substantive changes? In my view we won’t. What we will see is amendments made so as to seek to ensue that the Regulations still work in legal terms post exit day and there may be arguments as to whether some of those amendments go beyond what is required to achieve that aim. But the substantive changes (which I’m sure will come) will be for a later stage. The explanatory notes to the Bill say this: “The Bill does not aim to make major changes to policy or establish new legal frameworks in the UK beyond those which are necessary to ensure the law continues to function properly from day one. The Government will introduce separate primary legislation to make such policy changes which will establish new legal frameworks.” (para 14). 
This is a commitment that we need to keep the Government to. No changes beyond what is necessary without primary legislation. 

Simon Ricketts, 13.7.17

Personal views, et cetera

Elsewhere In Kensington

Last weekend’s blog post was written in different times. 
As predicted given May’s weak majority, Sajid Javid stayed in position as Secretary of State for Communities and Local Government. The announcement of Alok Sharma as housing and planning minister on 13 June was frankly a disappointment. No doubt he is a capable politician, but the task of planning for housing should be a critical priority for the government and to appoint again a junior minister without experience at a senior level of government, without a cabinet role and without previous planning or housing experience was not a good sign. The appalling fire in the Grenfell tower in the early hours of 14 June and the anger that followed was an immediate reality check as to why we need to get a grip on the seriousness of what we face. Come back Lord Heseltine. 
This country has a housing crisis. Not enough homes are being built, there is a need for housing which is affordable for those of low means (including social housing with fixed rents) and we must ensure that what is occupied, new or old, is safe. 
If, as the housing white paper trumpeted on its cover, we have a broken housing market, who is going to fix it, when and how?
Who is also going to make sure that the Building Regulations remain fit for purpose and that, crucially, local authorities have the powers and resources properly to enforce them? What is the bulwark against those inevitably lobbying for another “red tape challenge” or “one in two out” rule? This is wider than about the Grenfell tragedy, whatever its causes turn out to be. The next tragedy may well not be a fire but another lapse or loophole, where we will be told, again, that “lessons will need to be learned”, that there will be a “full public inquiry” and all of the other usual platitudes. 
It is truly depressing that the present government (as well indeed as the Labour party) has Brexit (a riddle, wrapped in a mystery, inside an enigma) as its main policy focus rather than something as urgent and important as providing sufficient and safe housing. And more widely, to what extent has one reason for Brexit been to allow the UK government greater freedom to relax regulations that were designed to protect us or our environment? The government’s continued prevarication on air quality (largely pushing compliance down to local authorities) and the disdain for EU environmental protections expressed by our new Secretary of State for the Environment, Food and Rural Affairs bring this into clear and immediate focus. But do we agree with these priorities? Housing, safety and security are fundamental human rights. Where do the objectives of Brexit (whatever they may be) appear on Maslow’s hierarchy of needs for any of us?
But this is meant to be a planning law blog. I had intended this week to look at a recent inspector’s decision letter in relation to a planning appeal, as well as two recent rulings from the Court of Appeal. By coincidence, the local planning authority for all of them is the Royal Borough of Kensington and Chelsea. 
On 12 June 2017, an inspector, David Nicolson, dismissed an appeal by Notting Hill Gate KCS Limited for planning permission for the demolition of the existing buildings on a large site at the junction of Notting Hill Gate and Kensington Church Street and redevelopment to provide office, residential, and retail uses, and a flexible surgery/office use, across six buildings (ranging from ground plus two storeys to ground plus 17 storeys), together with landscaping to provide a new public square, ancillary parking and associated works. 
On the site at present are a number of buildings, including the ugly and tired 12 storey office block known as Newcombe House; a linear block along Kensington Church Street with shops and restaurants, and Royston Court, a 5 storey building with ground floor retail and 20 self-contained studio units on the upper floors owned and managed by Notting Hill Housing Trust. The studios are occupied by former rough sleepers, in accordance with the grant conditions for its acquisition and refurbishment from the Rough Sleepers Initiative, although this is not secured at present by any section 106 obligation. The site is surrounded by four conservation areas but is outside all of them. There are listed buildings in the area, including Kensington Palace, listed grade 1. 
Notting Hill Housing Trust proposed to compensate the Borough for the loss of nominations to Royston Court through the provision of 10 two-bed homes outside the Borough and committed that proceeds from the sale would be invested in the provision of new family homes in lower value areas.
The inspector identified the main issues in this appeal as “the effects of the proposals on: 

a)  the character and appearance of the area with particular regard to the relative height, scale and massing of the proposed tower and the architectural quality of its design; 


b)  the settings of nearby conservation areas and listed buildings; 


c)  the availability of social rented floorspace within the Borough.”

The inspector was satisfied on the first issue. On the second issue he found that there would in some instances be less than substantial harm, but that (subject to the scheme including sufficient affordable housing) this would be outweighed by the public benefits arising. However, the appeal was dismissed on the final, affordable housing, issue, for two reasons:
– There would therefore be a loss of social rented housing floorspace within the borough contrary to its policy CH3b which resists the net loss of both social rented and intermediate affordable housing floorspace and units throughout the borough
– The inspector considered that the site value of £33m within the appellant’s viability appraisal was too high and he consequently did not accept the appellant’s position that affordable housing “could not be provided on site or, more importantly, that there needs to be a loss of all the existing 20 social housing bed spaces on the site or a net loss in the borough“.

With a compliant affordable housing offer, or adjusted viability appraisal, the door is now open to the appellant to reapply. No doubt it is disappointing for all concerned that after such a slow and expensive process, appeal procedures are not such as to allow the appellant to respond to an inspector’s conclusions, perhaps by increasing its affordable housing commitment, before the formal decision was issued. Would that in some instances speed things up, or simply lead to additional brinksmanship?

Now turning to the two Court of Appeal rulings. In both cases our haphazard planning legislation, with its layers of amendments and its practical failings/ambiguities, has again been found wanting, although in neither case of any assistance to the claimant: 

– In Republic of France v Royal Borough of Kensington & Chelsea (16 June 2017) the Court of Appeal unsurprisingly found that section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990 (a provision inserted by the Enterprise and Regulatory Reform Act 2013) is of no use as a procedure for certifying that sufficient works have been carried out so as to keep a listed building consent alive – it simply exists to certify that specific works would not require consent on the basis that they would not affect the character of the listed building as a special architectural or historic interest. There is therefore still no procedure for listed building consents, analogous to section 192 of the Town and Country Planning Act in the case of planning permissions. Nor is there a definition of “material operation” in the Listed Buildings Act. The court found that equivalent works may suffice as for planning permissions but the position remains unsatisfactorily uncertain for all concerned – in that case on one side of the grandest of neighbourly disputes Jon Hunt seeking to keep alive consents for a five storey super-basement scheme at 10 Kensington Park Gardens, on the other side the French Ambassador’s residence at 11 Kensington Park Gardens and, trying to adjudicate between competing interests, RBKC (I previously blogged on 6 December 2016 as to the extent to which the borough is particularly beleaguered by these types of cases in First World Problems: Basements).
– In R (Khodari) v Royal Borough of Kensington & Chelsea (11 May 2017), the Court of Appeal held that obligations to requiring dwellings within a development to be “permit free”, ensuring that no one who occupied the additional units would apply for a resident’s parking permit, could not be secured by way of section 106 of the Town and Country Planning Act, given that the obligation did not fall within the restrictive list in section 106(1) of the types of obligation that may be secured (ie (a) restricting the development or use of the land in any specified way; (b) requiring specified operations or activities to be carried out in, on, under or over the land; (c) requiring the land to be used in any specified way; or (d) requiring a sum or sums to be paid to the authority … on a specified date or dates or periodically). In London the issue is academic only as the wider powers within section 16 of the Greater London Council (General Powers) Act 1974 can be recited but outside of London it is certainly an unnecessary headache. (The claimant, Mr Khodari, wasn’t even really concerned about the “permit free” issue – he was simply looking for a technicality to quash the permission as the permission was being relied upon by his landlord in proceedings being taken to end his tenancy).

Both cases currently seem an unnecessary distraction and examples of the disputes that increasingly occupy too much time for planners – certainly first world problems in contrast to the more fundamental challenges those affected by the Grenfell disaster now face. Donations to the British Red Cross London Fire Relief Fund may be made here.

Simon Ricketts 18.6.17
Personal views, et cetera