Quite a week. I was going to write about the London Mayor’s Large-scale Purpose-built Shared Living London Plan Guidance (29 February 2024) – less prescriptive in relation to co-living than his initial draft as a result of constructive engagement with the industry, well received and good to see – or indeed the Competition and Markets Authority’s final report into housebuilding in England, Scotland and Wales (26 February 2024) – the best analysis of the house building and land promotion industry and indeed opportunities to reform the planning system that I have read. But all that will need to wait because one case has dominated the chat in the last day or so:
This was of course the legal challenge by M&S to the Secretary of State’s refusal of the retailer’s application, which he had called in, for planning permission for the construction of a nine storey new mixed office and retail store to replace its existing store at the western end of Oxford Street.
As to the various stages in the decision making process which led to the Secretary of State’s decision, together with an initial critique at the time of that decision (as well as the statement at the time from the M&S chief executive who had described Mr Gove’s decision as taken “on the whim of one man” and “utterly pathetic”) see my 21 July 2023 blog post, M&S Mess.
Russell Harris KC and Heather Sargent acted for M&S on the legal challenge, together with Dentons. Well done all for the outcome. For the pithiest and precise summary of the outcome you cannot beat Heather’s LinkedIn post yesterday:
“Lieven J has held that:
– The Secretary of State’s statement that “there should generally be a strong presumption in favour of repurposing and reusing buildings, as reflected in paragraph 152 of the [2021 NPPF]” was a misinterpretation of the NPPF and an error of law;
– The Secretary of State unlawfully failed to explain why he disagreed with his Inspector’s conclusions that there was no viable and deliverable alternative to the redevelopment scheme proposed by M&S;
– The Secretary of State unlawfully failed “to grapple with the implications of refusal and the loss of the benefits and thus departure from important Development Plan policies”;
– The Secretary of State unlawfully failed to provide adequate reasons for concluding (again in disagreement with his Inspector) that the harm to the vitality and viability of Oxford Street if M&S’s scheme (or an alternative) were not delivered would be “limited”; and
– The Secretary of State’s decision was also vitiated both by a factual error (namely, an erroneous understanding that there was no dispute that the proposed scheme would involve much greater embodied carbon than refurbishment) and by a misinterpretation of development plan policy on carbon. The judgment confirms that it is “clear beyond any rational doubt … that the offsetting requirements in [London Plan policy] SI 2C are in relation to operational carbon, and not embodied carbon”.
My (possibly unfairly) selective quote in the title to this blog post is from paragraph 116 of Lieven J’s judgment where she reports his apparent misunderstanding that the London Plan’s requirement for carbon off-setting applies to embodied carbon rather than just operational carbon (ground 5). She goes on to conclude:
“120 It would be astonishing if one of the key policies in the London Plan on carbon emissions could have suddenly expanded the scope of the off-setting requirements in such a significant way without anyone applying it in this way before. The approach of the SoS appears to believe that there is a “net zero” requirement of, or at least aspiration for, construction impacts, in a key Development Plan policy which has never previously been applied.
121 It is important to make clear that this case is not about whether or not it would be appropriate or justified to have such a policy in the light of the climate emergency. Such a judgement is not the function of the court. The issue for the court is whether the SoS erred in law by misinterpreting the adopted London Plan policy.”
The only further comment I would add at this point is that this saga is not yet at an end. The effect of the judgment is that (absent any application by the Government Legal Department to the Court of Appeal for permission to appeal) the application goes back to the Secretary of State to be redetermined. No doubt the parties will need to be given the opportunity to make further representations. It will take months. Indeed, who will be the Secretary of State by then?
Paragraph 152 of the previous version of the NPPF, on which ground 1 turned, survives unchanged as paragraph 157 of the latest version of the NPPF but will any relevant policy changes be made before the final outcome of the redetermination process? We know from the Government’s December 2023 Future Homes and Buildings Standards consultation:
“ Embodied carbon, the carbon emissions generated from the production and transportation of building materials, construction process and maintenance of a building – is beyond the scope of this consultation and the existing Building Regulations. We recognise, however, that embodied carbon is a significant contributor to the whole life carbon of a building and that it is therefore crucial that we take steps to address it. The government intends to consult on our approach to measuring and reducing embodied carbon in new buildings in due course” (paragraph 1.1.4)
At a local level, and as an example of how life constantly edges on, Westminster City Council also adopted on 28 February 2024 (I said it was a busy week) its new Planning Obligations and Affordable Housing SPD, which is intended to become a material consideration in decision making from 7 March 2024, with, amongst other things, a swingeing increase in carbon off-set payments (see brief Westminster Property Association explainer here).
The Secretary of State’s call-in of this application in June 2022 will so far have caused (assuming, which is not in the bag yet, that planning permission is eventually granted) at least two years’ delay, vast expense and delay for M&S as well as opportunity cost for the most important traditional shopping street in the nation’s capital (for which there is no financial recompense for M&S or for London). There really should be a higher threshold for call-in by the Secretary of State (whatever his or her political persuasion) of decisions which are referable to the Mayor of London (whatever his or her political persuasion). And the “behind the scenes” weighing of planning considerations/political advantage which leads to decisions such as this and that in relation to the Television Centre (see my 9 February 2024 blog post, The Weighting Game) is unfathomable (a word which I was relieved to see I used in my M&S Mess post last year about the Secretary of State’s reasoning on some aspects in his M&S decision).
Finally on this subject, whether as a thumbs up to that M&S legal team, or as a general thank you tip for us planning law bloggers, or as a gesture of support to Russell Harris and most importantly the young people’s charities he is supporting by way of this mad thing, please do sponsor Russell’s Cycle to MIPIM 2024 . He and the rest of them will no doubt shortly setting out and would appreciate any support. When I last looked, he was about £1,500 short of his £11,000 target. As another retailer might say, every little helps.
The answer is already relatively clear in relation to biodiversity net gain, in that the latest Planning Practice Guidance (14 February 2024) says this:
“Plan-makers should not seek a higher percentage than the statutory objective of 10% biodiversity net gain, either on an area-wide basis or for specific allocations for development unless justified. To justify such policies they will need to be evidenced including as to local need for a higher percentage, local opportunities for a higher percentage and any impacts on viability for development. Consideration will also need to be given to how the policy will be implemented.” (Paragraph: 006 Reference ID: 74-006-20240214).
[This is of course not to say that developers cannot choose to commit to provide more biodiversity net gain than is required. If they so choose, the decision maker should give appropriate weight to that commitment – see NRS Saredon Aggregates Limited v Secretary of State (Eyre J, 16 November 2023)].
But for a long time the answer has been less clear when it comes to whether local planning authorities can impose minimum energy efficiency standards which go beyond what is required by way of national policy or legislation and it is that lack of clarity which led to R (Rights Community Action) v Secretary of State (Lieven J, 20 February 2024). The case concerned a judicial review, brought by a national campaign group, of an inspectors’ report into the Salt Cross Garden Village Area Action Plan. Salt Cross is a project being promoted by Grosvenor Developments Limited to the north of the A40 near Eynsham, West Oxfordshire. The challenge was to the inspectors’ finding that the plan’s policy 2 (“net zero carbon development”) was unsound because it was inconsistent with national policy, which they interpreted as advising that policies should not be used to set conditions above the equivalent of level 4 of the Code for Sustainable Homes.
Policy 2 was certainly prescriptive:
The inspectors tested this policy against what they took to be the “extant expression of national policy”, namely a 2015 written ministerial statement. They stated:
“123. In relation to the building performance standards in Policy 2 as they would apply to dwellings, there is a question of whether the approach is consistent with national policy. The issue arises by virtue of Paragraph 154(b) of the NPPF and the need for local requirements for the sustainability of buildings to reflect the Government’s policy for national technical standards.
124. Although various Government consultations linked to the Future Homes Standard have signalled potential ways forwards, the current national planning policy relating to the endorsement of energy efficiency standards exceeding the Building Regulations remains the Written Ministerial Statement (WMS) on Plan Making dated 25 March 2015. This is supported by the associated NPPG dated from 2019 which explains that the 2015 WMS sets out the Government’s expectation that policies should not be used to set conditions on planning expectation that policies should not be used to set conditions on planning permissions with requirements above the equivalent of the energy requirement of Level 4 of the Code for Sustainable Homes (approximately 20% above the 2013 Building Regulations across the building mix). The 2015 WMS remains an extant expression of national policy.”
They considered “there are inconsistencies between the approach set out in Policy 2 of the AAP and the national policy position explained above relating to exceeding the Building Regulations. In light of our conclusions relating to whether the overall approach in Policy 2 is justified, we do not regard the requirements as reasonable”. They also considered the requirements to be insufficiently flexible:
“137. The detailed requirements also do not reflect the evolving nature of zero carbon building policy, where standards inevitably will change in response to technological and market advancement and more stringent nationally set standards, including within the Building Regulations. Policy 2 contains little flexibility to allow for such changes, or indeed to respond to detailed master planning that will evolve over time. This brings into question whether the evidence that supports the standards justifies the approach as a sound one.
138. We appreciate that Policy 2 provides a high degree of certainty about the standards that will be applied over the lifetime of the development. However, even judged on a proportionate basis, the evidence that underpins the prescriptive requirements lacks the necessary depth and sense of realism to show that Policy 2 represents an appropriate strategy. As such, Policy 2 is not justified.”
They recommended a modification that “substitutes the wording of Policy 2 to introduce the need for an ambitious approach to the use of renewable energy, sustainable design, construction methods and energy efficiency. This is to be assessed at the planning application stage in response to an energy statement. The modification sets out what should be included within an energy statement, including elements set out in the submitted policy but without the specific, stringent requirements which we have found are neither consistent with national policy nor justified.”
The 2015 written ministerial statement did indeed advise that local plan policies exceeding minimum energy efficiency standards should not go beyond level 4 of the Code for Sustainable Homes:
“For the specific issue of energy performance, local planning authorities will continue to be able to set and apply policies in their Local Plans which require compliance with energy performance standards that exceed the energy requirements of Building Regulations until commencement of amendments to the Planning and Energy Act 2008 in the Deregulation Bill. This is expected to happen alongside the introduction of zero carbon homes policy in late 2016. The Government has stated that, from then, the energy performance requirements in Building Regulations will be set at a level equivalent to the (outgoing) Code for Sustainable Homes Level 4. Until the amendment is commenced, we would expect local planning authorities to take this statement of the Government’s intention into account in applying existing policies and not set conditions with requirements above a Code level 4 equivalent. This statement does not modify the National Planning Policy Framework policy allowing the connection of new housing development to low carbon infrastructure such as district heating networks.” (key passage underlined).
You may remember the context of that statement. The non-statutory Code for Sustainable Homes was at that point being formally being withdrawn. But the amendments to the Planning and Energy Act that were referred to in the 2015 WMS were never brought into force and the Government stated in 2021 that this meant that “local planning authorities will retain powers to set local energy efficiency standards for new homes.” Energy standards were amended in 2021 in excess of level 4 of the Code for Sustainable Homes. The closest there then was to a clear statement of the Government’s position was its January 2022 response to a Select Committee report on local government and the path to net zero:
“The National Planning Policy Framework (NPPF) is clear that the planning system should support the transition to a low-carbon future in a changing climate, taking full account of flood risk and coastal change. It should help to shape places in ways that contribute to radical reductions in greenhouse gas emissions, minimise vulnerability and improve resilience; encourage the reuse of existing resources, including the conversion of existing buildings; and support renewable and low-carbon energy and associated infrastructure. The NPPF expects Local Plans to take account of climate change over the longer term; local authorities should adopt proactive strategies to reduce carbon emissions and recognise the objectives and provisions of the Climate Change Act 2008. Local authorities have the power to set local energy efficiency standards that go beyond the minimum standards set through the Building Regulations, through the Planning and Energy Act 2008. In January 2021, we clarified in the Future Homes Standard consultation response that in the immediate term we will not amend the Planning and Energy Act 2008, which means that local authorities still retain powers to set local energy efficiency standards that go beyond the minimum standards set through the Building Regulations. In addition, there are clear policies in the NPPF on climate change as set out above. The Framework does not set out an exhaustive list of the steps local authorities might take to meet the challenge of climate change and they can go beyond this.“ (key passages underlined)
Clear as mud!
Lieven J considered that the inspectors (perhaps unsurprisingly in the light of this confusion) had misunderstood what current Government policy was:
“The WMS has to be interpreted in accordance with the mischief it was seeking to address, and with an “updating construction”, see by analogy with statute, Bennion on Statutory Construction (Eighth Edition) at Chapter 14. The WMS is not a statute but a policy, but even with a statute the mischief is a highly relevant consideration in interpretation, and the principle of applying an updating construction is well established. In order to make sense of the WMS in the circumstances that applied in 2023 it is essential to have regard to the fact that the restriction on setting conditions above Code Level 4, upon which the Inspectors relied in IR124, no longer apply.
In my view, the Inspectors’ interpretation neither makes sense on the words, seen in their present context, or of the mischief to which it was applying. To interpret the WMS so as to prevent or restrict the ability of the LPA to set a standard higher than Level 4 is plainly wrong in the light of subsequent events. For this reason, the Inspectors erred in law in their approach by finding that Policy 2 of the AAP was inconsistent with the WMS.
I note that this analysis entirely accords with the position of the Government in its response to the Select Committee on Housing Communities and Local Government in January 2022, when it said: “Local authorities have the power to set local energy efficiency standards that go beyond the minimum standards set through the Building Regulations….” Therefore the Government itself did not appear to be suggesting that the policy in the WMS remains extant.”
The policy position has in fact moved on further since the inspectors reached their findings and is, I hope, now clearer:
Consultation closes on 7 March 2024 in relation to the Government’s current consultation on the Future Homes and Buildings standards to be delivered by way of changes to Part 6, Part L and Part F of the Building Regulations (12 December 2023)
In his accompanying written ministerial statement housing minister Lee Rowley says this about local authorities’ ability to set their own local energy efficiency standards:
““Since [the 2015 WMS], the introduction of the 2021 Part L uplift to the Building Regulations set national minimum energy efficiency standards that are higher than those referenced in the 2015 WMS rendering it effectively moot. A further change to energy efficiency building regulations is planned for 2025 meaning that homes built to that standard will be net zero ready and should need no significant work to ensure that they have zero carbon emissions as the grid continue to decarbonise. Compared to varied local standards, these nationally applied standards provide much-needed clarity and consistency for businesses, large and small, to invest and prepare to build net-zero ready homes.
The improvement in standards already in force, alongside the ones which are due in 2025, demonstrates the Government’s commitment to ensuring new properties have a much lower impact on the environment in the future. In this context, the Government does not expect plan-makers to set local energy efficiency standards for buildings that go beyond current or planned buildings regulations. The proliferation of multiple, local standards by local authority area can add further costs to building new homes by adding complexity and undermining economies of scale. Any planning policies that propose local energy efficiency standards for buildings that go beyond current or planned buildings regulation should be rejected at examination if they do not have a well-reasoned and robustly costed rationale that ensures:
That development remains viable, and the impact on housing supply and affordability is considered in accordance with the National Planning Policy Framework.
The additional requirement is expressed as a percentage uplift of a dwelling’s Target Emissions Rate (TER) calculated using a specified version of the Standard Assessment Procedure (SAP).
Where plan policies go beyond current or planned building regulations, those polices should be applied flexibly to decisions on planning applications and appeals where the applicant can demonstrate that meeting the higher standards is not technically feasible, in relation to the availability of appropriate local energy infrastructure (for example adequate existing and planned grid connections) and access to adequate supply chains.” (key passages underlined).
Isn’t all this where national development management policies would be particularly useful?
I remember watching Don’t Look Up on new year’s day 2022. Not the best film ever but certainly an apt analogy when It comes to the climate crisis. I can’t believe that was two years ago. Where does the time go?
But then news came through yesterday afternoon of Conservative MP Chris Skidmore’s resignation of the party whip (5 January 2024).
I had praised Skidmore’s independent review last year of the Government’s net zero plans in my 21 January 2023 blog post Mission Zero Needs Planning. He knows what he’s talking about on the subject.
Here is his resignation statement in full:
“Next week the government will be introducing the Offshore Petroleum Licensing Bill in the House of Commons.
This bill would in effect allow more frequent new oil and gas licences and the increased production of new fossil fuels in the North Sea. It is a bill that I have already stated my opposition to, by not voting in the King’s Speech debate in protest at the bill’s inclusion in the government’s legislative programme.
As the former Energy Minister who signed the UK’s net zero commitment by 2050 into law, I cannot vote for a bill that clearly promotes the production of new oil and gas. While no one is denying that there is a role for existing oil and gas in the transition to net zero, the International Energy Agency, the UNCCC and the Committee on Climate Change have all stated that there must be no new additional oil and gas production on top of what has already been committed, if we are to both reach net zero carbon dioxide emissions by 2050 and keep the chance of limiting temperature rises to 1.5 degrees.
Decisions taken at COP28 last month also set in motion the global transition away from fossil fuels. As the exponential growth of renewable and clean power continues, as we seek to reduce our energy demand for fossil fuels through the adoption of better energy efficiency in buildings and industry, as the adoption of electricity replaces fossil fuels, there is no case to be made for increasing fossil fuel production at a time when investment should be made elsewhere, in the industries and businesses of the future, and not of the past.
As fossil fuels become more obsolete, expanding new oil and gas licences or opening new oil fields will only create stranded assets of the future, harming local and regional communities that should instead be supported to transition their skills and expertise to renewable and clean energy.
The Net Zero Review I published a year ago next week, Mission Zero, set out how net zero can be the economic opportunity of this decade, if not our generation, bringing with it hundreds of thousands of new jobs, new growth, new regeneration and inward investment worth hundreds of billions of pounds. To achieve this however requires long term commitment to the energy transition, and a clear and consistent message to business and industry that the UK is committed to climate action as a global leader, as it has been for the past two decades.
The bill that will be debated next week achieves nothing apart from to send a global signal that the UK is rowing ever further back from its climate commitments. We cannot expect other countries to phase out their fossil fuels when at the same time we continue to issue new licences or to open new oil fields. It is a tragedy that the UK has been allowed to lose its climate leadership, at a time when our businesses, industries, universities and civil society organisations are providing first class leadership and expertise to so many across the world, inspiring change for the better.
I cannot vote for the bill next week. The future will judge harshly those that do. At a time when we should be committing to more climate action, we simply do not have any more time to waste promoting the future production of fossil fuels that is the ultimate cause of the environmental crisis that we are facing.
But I can also no longer condone nor continue to support a government that is committed to a course of action that I know is wrong and will cause future harm. To fail to act, rather than merely speak out, is to tolerate a status quo that cannot be sustained. I am therefore resigning my party whip and instead intend to be free from any party-political allegiance.
I am deeply grateful for the privilege I have had to serve in government across several departments, including as Energy Minister attending Cabinet, and to have been appointed as the Independent Chair of the Net Zero Review. It is nearly fourteen years since I was first elected as the Member of Parliament for Kingswood, and I am especially grateful to my constituents for placing their repeated trust and faith in me. First and foremost, my duty has been to serve them, as their elected representative.
It is with that duty to them in mind as their representative that my personal decision today means, as I have long argued, that they deserve the right to elect a new Member of Parliament. I therefore will be standing down from Parliament as soon as possible.
It has been a remarkable and wonderful opportunity to serve as a Member of Parliament for nearly fourteen years, but I now intend to focus all my energy and attention on delivering net zero and the energy transition.”
“Alongside the need to protect and conserve, historic homes have an important contribution to make in meeting our Net Zero objectives, both in terms of their contribution to the broader UK energy efficiency and low carbon heat agenda, and in the carbon which is saved through their continued use and reuse. Historic properties make up a significant proportion of the UK’s building stock, with 5.9 million buildings constructed before 1919. Historic properties can and should be part of the solution, and this report is intended to maximise their potential in supporting our progress towards Net Zero.
Through this review, we have gained a better understanding of the practical barriers that owners of listed buildings and homes in conservation areas face when they want to install energy efficiency or low-carbon heating measures in their properties.”
The document follows a commitment in the Government’s April 2022 British Energy Security Strategy. It contains sections on the role of the planning system; issues with local authority skills, training and capacity; guidance available for homeowners and occupiers; construction industry sills, training and capacity, and affordability and financial incentives. It concludes with a summary of the 55 actions and future commitments arising. The seven under the heading “planning” are as follows:
Delivery of planning reform through the Levelling-Up and Regeneration Act so that it supports good design and environmental outcomes better, is less complex, and easier to engage with
Implementation of the newly updated National Planning Policy Framework (NPPF), including a new policy to support energy efficiency improvements to existing buildings
Consult on changes to permitted development rights for heat pumps in England
Consultation on National Development Management Policies including specifically on improvements to historic buildings
Consult on the opportunities for greater use of Listed Building Consent Orders (LBCOs) to support energy efficiency improvements to listed buildings
Support Local Planning Authorities that wish to develop exemplar Local Listed Building Consent Orders (Historic England)
Publish a Historic England Advice Note (HEAN) on Climate Change and Historic Building Adaptation to help decision-makers deliver climate action while protecting heritage(Historic England)
The announcements as to national development management policies and also local listed building consent orders are potentially interesting. This is what the document itself says:
“First, as part of the implementation of National Development Management Policies following Royal Assent of the Levelling-up and Regeneration Act, DLUHC will create new National Development Management Policies (NDMPs), including a policy specifically for improvements to historic buildings. This policy will be integrated into the wider suite of heritage National Development Management Policies which will replace current policy affecting decision making in chapter 16 of the National Planning Policy Framework. In doing so, this will help to ensure greater certainty and consistency about decisions on applications for energy efficiency improvements affecting listed buildings and buildings in conservation areas across England. The government will consult on this new policy as part of its development of National Development Management Policies.
Second, the review has demonstrated there is a significant appetite for increasing the use of Local Listed Building Consent Orders to provide upfront listed building consent for certain common energy efficiency improvements on listed buildings so owners can make these improvements without the need to apply for consent. There is not, however, a clear consensus from stakeholders about how and when Local Listed Building Consent Orders should be used to support these energy efficiency improvements. In particular, it will be important that these orders do not permit energy efficiency measures which harm the significance of listed buildings.
As a first step, DLUHC will consult on the opportunities for using Local Listed Building Consent Orders to support energy efficiency improvements on listed buildings. The consultation will specifically ask about:
the role for Local Listed Building Consent Orders prepared by local planning authorities; and
the potential for a Listed Building Consent Order made by the Secretary of State which would grant listed building consent for certain improvements across England.”
Here’s to much more of this, in particular to closer working between DLUHC and the Department for Energy Security and Net Zero, and in particular to politicians such as Mr Skidmore actually prepared to look up.
Turbulent times as the Conservative party desperately looks to position itself for the next general election, still mindful, it seems, of its narrow, anti-ULEZ fuelled, win in the Uxbridge and South Ruislip by-election in July 2023.
I wonder if the prime minister has recently read chapter 9 of the NPPF (“Promoting Sustainable Transport”)?
I wonder if the prime minister recalls that since 1 June 2023 a new Government quango, Active Travel England is a statutory consultee on all large planning applications to “to help planning authorities in their work to implement good active travel design – for example, by ensuring developments include walking, wheeling and cycling connectivity to schools and local amenities. This will help improve public health, save people money and reduce harmful emissions.” ATE’s framework document may be seen as dangerously woke in this new political climate, aiming to deliver increases in active travel to 50% of all journeys in urban areas.
“End the sale of new petrol and diesel cars and vans from 2030; from 2035, all new cars and vans must be zero emission at the tailpipe.” (long gone)
“Increase the share of journeys taken by public transport, cycling and walking.”
“Invest £2 billion in cycling and walking, building first hundreds, then thousands of miles of segregated cycle lane and more low-traffic neighbourhoods with the aim that half of all journeys in towns and cities will be cycled or walked by 2030. As announced in the Transport Decarbonisation Plan, we will create at least one zero emission transport city.”
The party’s Manchester conference saw two major policy announcements by the Government on transport (neither made first to Parliament as convention requires):
From the foreword to the Plan for Drivers, the car is king again:
“There’s nothing wrong with driving. Most of us use a car and, for many, life would not be liveable without their car. For those in rural areas, it is a lifeline. A car can hugely expand the independence of a younger person, as well as keep older people connected to key services and their families.”
There is the rather grudging nod to other modes of transport, but whatever you do, don’t vilify the private car:
“Walking, cycling and public transport are necessary in a multi-modal transport system and we support their continued growth, but they are not the right choice for everyone’s journey. Being pro-public transport does not mean being anti-car. The easy political choice is to vilify the private car even when it’s been one of the most powerful forces for personal freedom and economic growth in the last century. Used appropriately and considerately, the car was, is, and will remain a force for good.”
That first sentence is somewhat mealy mouthed in the face of what follows. The Government apparently intends to:
“update guidance (in England) on 20mph speed limits. While 20mph zones are an important tool in improving road safety in residential areas, over-use risks undermining public acceptance, so we are clear that 20mph zones should be considered on a road-by-road basis to ensure local consent, not as blanket measures
stop local authorities using so-called “15-minute cities” to police people’s lives. We will consult on measures including the removal of local authorities’ access to DVLA data to enforce such schemes by camera
following the LTN review, consider new guidance on LTNs with a focus on the importance of local support, and consider as part of the LTN review how to address existing LTNs that have not secured local consent”
Local authorities policing people’s lives via “15 minute cities” enforced by cameras? Bizarre.
There will be restrictions on the operation of bus lanes, measures to make parking easier, discouragement of penalty charge notices. And so it goes on.
And then today we had, to accompany the prime minister’s party conference speech, Network North – serving as the political cover for today’s decision to scrap HS2 north of Birmingham. Regardless of the noise about monies being diverted to other transport projects (many of which, worryingly for our climate change targets, are of course road projects), the cancellation decision is disturbing – not just for people and businesses who would have benefited from the longer route – but of course hugely upsetting also those whose properties have already been taken, as well of all of us whose money has been spent, irreversibly changing the environment including areas of outstanding natural beauty and ancient woodlands, on the basis of asserted public benefits that will now never be fully realised. In retrospect, today’s decision raises question marks over the initial decision by David Cameron’s government to proceed – as well as subsequent governments’ decisions to continue.
I was at least pleased to see that the Government has at re-committed to the line actually reaching Euston:
“We are going to strip back the project and deliver a station that works, and that can be open and running trains as soon as possible, and which has the leadership in place to deliver maximum value to the taxpayer. We will not provide a tunnel between Euston and Euston Square underground station or design features we do not need. Instead we will deliver a 6-platform station which can accommodate the trains we will run to Birmingham and onwards and which best supports regeneration of the local area. That is how we properly unlock the opportunities the new station offers, while radically reducing its costs.
We will appoint a development company, separate from HS2 Ltd, to manage the delivery of this project. We will also take on the lessons of success stories such as Battersea Power Station and Nine Elms, which secured £9 billion of private sector investment and thousands of homes. So we will harness the future growth that the station will unleash to support its development, to ensure we get the best possible value for the British taxpayer – and ensure that funding is underpinned by contributions from those people and businesses its development supports. At the same time, we are considerably upping the ambition of the Euston redevelopment, where we will be looking to establish a Development Corporation to create a transformed ‘Euston Quarter’ – potentially offering up to 10,000 homes.”
It will be interesting to see what ensues.
Foot to the floor, election ahead….
Simon Ricketts,4 October 2023
Personal views, et cetera
Detail from one of the first records I ever owned…
The extent of the climate crisis is becoming plainer by the month. The UN Secretary General Antonio Guterres was reported on 27 July 2023 as saying that the era of global warming had ended and that the era of “global boiling” had arrived. July 2023 was the world’s hottest month on record. I saw a retired housebuilder scoff on LinkedIn that he had never heard anything as ridiculous as “global boiling”. I found that quite triggering in the current context and so apologies that I am not writing this week about any interesting planning law cases.
Instead, not in any way as an expert, but instead as a confused citizen, I’m asking myself…
I’m reminded of the “Be a strategist” chapter in Alastair Campbell’s book But What Can I do? Strategy = OST:
“O = Objective (what you want to achieve)
S = Strategy (‘the big how’: your definition of the overall approach)
T = Tactics (the detailed plans required to execute the strategy)“
Surely, the objective is, and should remain, to do all that we can do as a leading developed nation to encourage the world to combat the climate crisis.
I thought the Government’s strategy was well-documented, set out in its Net Zero Strategy: Build Back Greener (updated 5 April 2022) (reviewed earlier this year by Chris Skidmore – see my 21 January 2023 blog post Mission Zero Needs Planning) and by way of its longstanding commitments set out in the Climate Change Act 2008 , policed by the Climate Change Committee which was established for that purpose, including the objective of achieving net zero by 2050. You can question whether the strategy is ambitious enough but there it is.
The tactics to be deployed to achieve the objective are all of those individual measures set out and flowing from the strategy, including those set out in the Government’s 2023 carbon delivery plan.
However, I’m sensing that the prime minister’s OST instead may currently look like this:
O = Secure re-election or at least not too heavy a defeat
S = Win votes via populist “culture war” issues; have any sort of positive economic narrative come election time
T = Noise about eg being on the side of the motorist; prioritising economic growth over the net zero programme.
Of course, any debate on these issues gets bogged down in complexity. Argue about the stats, the projections and promised protections (carbon capture and storage etc etc), anything but just Don’t Look Up!
Perhaps let’s turn to that body that was set up by the 2008 Act. The Climate Change Committee published its 2023 Progress Report to Parliament on 28 June 2023). Reviewing the Government’s March 2023 Carbon Budget Delivery Plan and the Government’s wider policy development, the CCC’s key messages are:
“A lack of urgency. While the policy framework has continued to develop over the past year, this is not happening at the required pace for future targets.
Stay firm on existing commitments and move to delivery. The Government has made a number of strong commitments, these must be restated and moved as swiftly as possible towards delivery.
Retake a clear leadership role internationally. The UK will need to regain its international climate leadership.
Immediate priority actions and policies. Action is needed in a range of areas to deliver on the Government’s emissions pathway.
Develop demand-side and land use policies. The Government’s current strategy has considerable delivery risks due to its over-reliance on specific technological solutions, some of which have not yet been deployed at scale.
Empower and inform households and communities to make low-carbon choices. Despite some positive steps to provide households with advice on reducing energy use in the last year, a coherent public engagement strategy on climate action is long overdue.
Planning policy needs radical reform to support Net Zero. The planning system must have an overarching requirement that all planning decisions must be taken giving full regard to the imperative of Net Zero.
Expansion of fossil fuel production is not in line with Net Zero. As well as pushing forward strongly with new low-carbon industries, Net Zero also makes it necessary to move away from high-carbon developments.
The need for a framework to manage airport capacity. There has been continued airport expansion in recent years, counter to our assessment that there should be no net airport expansion across the UK.”
Alongside the report the following supporting research was published:
This all pre-dated last week’s oil and gas licensing announcement. Is there any case in 2023 for further extraction of fossil fuels? The CCC’s outgoing chair Lord Deben however made his views clear in a 3 August 2023 article for New Statesman: North Sea licences tell big oil we’re not serious about net zero.
And what about this stuff about being on the side of the motorist? It’s surely all adding up to a growing, tactical, culture war around climate issues. By-elections can unexpectedly become policy inflexion points – as we saw with the Chesham and Amersham by-election result in June 2021 that effectively scuppered a previous attempt to reform the planning system. Both main parties took from the 20 July 2023 Uxbridge and South Ruislip result that the Conservative candidate’s achievement in narrowly holding onto the seat was down to the unpopularity of London Mayor Sadiq Khan’s programme to extend the Ultra Low Emission Zone to outer London. Hence Keir Starmer’s disappointing wobble the next day but also, in spades, the Tory response. Here was an issue to rally behind, supposedly in support of those not able to afford to replace their older vehicles with ones which would be ULEZ compliant (although that fox has probably been shot by Khan’s 4 August Mayor announces massive expansion of scrappage scheme to all Londoners) but more widely an opportunity to mine a “pro-car”/anti- regulation seam – hence also the prime minister’s announced review on low traffic neighbourhoods. The Local Government Association’s view is clear: Councils best placed to make decisions with communities (30 July 2023). But this is a culture war – if local government folk (and probably people like you and me too) object, so much the better, is likely to be some political strategists’ thinking. And of course, along with all the political brouhaha come the inevitable legal challenges – on 28 July 2023 Hillingdon, Bexley, Bromley, Harrow and Surrey Councils failed in their judicial review of the proposed ULEZ expansion.
Let me throw in here some commentary more rooted in planning law. I was interested to receive a comment on my recent blog post about the M&S Oxford Street decision letter. The comment was along the lines of whether there was anything to stop M&S in any event demolishing the building, unlisted, not in a conservation area, relying on the prior approval right to do that in the General Permitted Development Order. This really does illustrate the lack of joined up thinking in planning legislation. Should demolition be more closely regulated? Why, when there is current consultation on possible changes to the General Permitted Development Order, and if minimising the loss of embodied carbon is now a Government objective (no clear policy on that, we are left reading between the lines), is there still, for instance, the demolition and rebuild (with 1,000 sq m cap) commercial to residential right, only introduced in 2020?!
Finally, to hear views and debate on the Government’s recent announcements on planning reform that were the subject of my blog post last week The Message, you can listen back to our two hour-long Clubhouse sessions on the issues – here for the discussion of Michael Gove’s 24 July statement as to his long-term plan for housing and here for detail on proposed reforms to plan-making, the GPDO and application fees. And although I’m not wedded to the idea unless there is real interest, if anyone would like to speak at a future Clubhouse session about the issues in this blog post then let me know.
And final final plug – there’s a very small but growing planning community on Threads, which is certainly improving as a more wholesome alternative to Twix (they have largely sorted out the issues which initially were so annoying for people). Feel free to join by downloading the app via Apple’s App Store or Google Play for Android – still only by mobile device, although that will change in the next few weeks. An interesting time lies ahead and I’m feeling that we are going to need to share our thinking…
I never thought I would live to see a chief executive of Marks and Spencer plc (Marks and Spencer plc!) issue a statement such as this:
““After a two-year process where our proposals were supported at every stage, our investment in 2,000 jobs, building one of the most sustainable buildings in London, improving the public realm and creating a flagship store, is now effectively in the deep freeze. Today the Secretary of State has ignored his appointed expert David Nicholson who recommended approval of our scheme.
When 42 of the 269 shops on what should be our nation’s premier shopping street sit vacant, disregarding the expert opinion and approval of the appointed planning inspector and playing to the gallery by kiboshing the only retail-led regeneration proposal is a short-sighted act of self-sabotage by the Secretary of State and its effects will be felt far beyond M&S and the West End. It is particularly galling given there are currently 17 approved and proceeding demolitions in Westminster and four on Oxford Street alone, making it unfathomable why M&S’s proposal to redevelop an aged and labyrinthian site that has been twice denied listed status has been singled out for refusal.
The suggestion the decision is on the grounds of sustainability is nonsensical. With retrofit not an option – despite us reviewing sixteen different options – our proposed building would have ranked in the top 1% of the entire city’s most sustainable buildings. It would have used less than a quarter of the energy of the existing structure, reduced water consumption by over half, and delivered a carbon payback within 11 years of construction. It is also completely at odds with the inquiry process where the analysis on sustainability, including from independent experts Arup, was accepted.
We cannot let Oxford Street be the victim of politics and a wilful disregard of the facts. At a time when vacancy rates on what should be the nation’s premier shopping street are 13% higher than the average UK high street and Westminster Council is pleading for help in managing the growing proliferation of sweet shop racketeers, the Secretary of State has inexplicably taken an anti-business approach, choking off growth and denying Oxford Street thousands of new quality jobs, a better public realm and what would be a modern, sustainable, flag-bearing M&S store.
There is no levelling up without a strong, growing Capital city, but the ripple effect extends well beyond Oxford Street. Towns and cities up and down the country will feel the full effects of this chilling decision, with decaying buildings and brownfield sites now destined to remain empty as developers retreat. The nation’s fragile economic recovery needs Government to give confidence to sustainable regeneration and investment as well as following due process; in London and across the UK. Today the Secretary of State has signalled he is more interested in cheap shot headlines than facts and if it weren’t so serious it would be laughable.
We have been clear from the outset that there is no other viable scheme – so, after almost a century at Marble Arch, M&S is now left with no choice but to review its future position on Oxford Street on the whim of one man. It is utterly pathetic.” (Stuart Machin, 20 July 2023)
Throughout this process there has been ferocious opposition to the scheme by some prominent groups and individuals – with detailed representations made; lobbying at each stage, and commentary in the media and social media.
I have often criticised the process whereby the Secretary of State can call-in an application, or recover an appeal, for his own decision-making.
What is the point of local democracy? What is the point of a hugely expensive, lengthy, quasi-judicial process, and a 109 page report by one of our most experienced planning inspectors, when you arrive at this sort of outcome?
If Secretary of State didn’t like the scheme when he called it in, and was going to refuse it in any event, why even the pretence of due process?
To dip into the decision. First point: of course it’s written with an eye to being watertight against legal challenge, by way of making sure that the conclusions revolve around the degree of weight to be attached to specific material considerations and around ultimately subjective assessments as to harm and significance (albeit assessments made without the benefit of hearing the evidence, of accompanied site visits or the ability to ask questions of witnesses). Time will tell if that objective has been secured.
Given that some may think (I couldn’t possibly comment) that this is how the Secretary of State reached his decision, I’m going to start with the overall conclusions (paragraph 51 onwards).
The first set of subjective conclusions (paragraph 51) are findings as to “overall conflict with development plan policies D3 and 38 which deal with design, and partial conflict with heritage policies HC1 and 39”.
That enables him to take the position that the scheme is in conflict with the development plan overall. With the onus shifted, the question for him is accordingly “whether there are material considerations which indicate that the proposal should be determined other than in line with the development plan.”
In favour of the proposal are (paragraph 52) “the advantages of concentrating development in such a highly accessible location, which attracts substantial weight; and the potential harm to the vitality and viability of the area which could follow from a refusal of permission, which attracts limited weight. The heritage benefits carry moderate weight, and the possibility of demolition attracts limited weight. The benefits to employment and regeneration through improved retail and office floorspace, and the benefits in terms of permeability and connectivity, safety and shopping experience and the public realm collectively carry significant weight.” As long as properly reasoned, the weight to be attached to each consideration is for the decision maker.
Against the proposal (paragraph 53) “is the Secretary of State’s finding that in terms of paragraph 152 of the Framework, the proposal would in part fail to support the transition to a low carbon future, and would overall fail to encourage the reuse of existing resources, including the conversion of existing buildings, which carries moderate weight. He has also found that harm arising from the embodied carbon carries moderate weight; and the future decarbonisation of the grid carries limited weight.”
In terms of assessing the heritage impacts of the proposal “the Secretary of State has taken into account the requirements of s.66 of the LBCA Act and the provisions of the Framework. He has found that in terms of paragraph 202 of the Framework, the harm to the settings, and so the significance, of the designated heritage assets would fall into the ‘less than substantial’ category. In respect of Selfridges and the Stratford Place CA, he has found the harm would be at the upper end of that category; in respect of the Mayfair CA it would be in the middle of that category; and in respect of the Portman Estate CA it would be at the lower end of the category. Overall he has found that the harm to the settings of, and significance of the designated heritage assets carries very great weight. He has further considered paragraph 202 of the Framework and has found that the public benefits of the proposal do not outweigh the harm to the significance of the designated heritage assets. The Secretary of State considers that harm from the loss of the nondesignated heritage asset of Orchard House attracts substantial weight and has considered paragraph 203 of the Framework in coming to this decision. In respect of paragraph 189 of the Framework, the Secretary of State considers that the proposal would overall fail to conserve the heritage assets in a manner appropriate to their significance, so that they can be enjoyed for their contribution to the quality of life of existing and future generations. He considers that the possibility of an Oxford Street CA attracts limited weight.”
So what did the scheme in was its design, its less than substantial harm to designated heritage assets which he gives “very great” weight, not outweighed by public benefits; harm from the loss of unlisted Orchard House which he gives substantial weight, and, in terms of climate change issues, the failure to support the transition to a low carbon future (moderate weight), failure to encourage the reuse of existing resources (moderate weight), harm arising from the embodied carbon (moderate weight) and future decarbonisation of the grid (limited weight).
Let’s look in more detail at how the Secretary of State reached some of those conclusions.
Design
His conclusion on non-compliance with policy D3 is said by him to follow from his conclusions on the impact on designated heritage assets (paragraph 43). Similarly policy 38 (paragraph 44). Aside from these conclusions, based on concerns as to heritage aspects, he reaches no conclusions on the design of the scheme.
Heritage
So let’s turn to heritage.
The Secretary of State agrees with the Inspector (paragraphs 12 to 15) as to the level of harm caused to designated heritage assets. However, he disagrees as to the weight to be given to any harm (paragraph 15): “Given the significance of Selfridges, and his conclusions in paragraphs 13-14 above, the Secretary of State considers that the harm to designated heritage assets in this case carries very great weight. He does not agree with the Inspector’s assessment that the harm to the setting and so to the significance of Selfridges, including with the additional harm to the settings of the CAs, carries only moderate weight (IR.13.11 and IR13.78).”
The Secretary of State agrees with Historic England rather than the inspector as to the significance of Orchard House as a non-designated heritage asset (paragraph 16) and considers that its loss attracts substantial weight. He recognises, some heritage benefits of the scheme, to which he ascribes moderate weight.
Carbon
This is the area where we need to pay particularly careful attention.
First, to note that he reaches no concluded view on whether the redevelopment would over the life of the building use less carbon than any replacement: “the Secretary of State has also taken into account the applicant’s argument that over the life of the building it would use less carbon than any refurbishment, which would have to rely on an inefficient building envelope (IR13.38). He agrees with the Inspector, for the reasons given in IR13.37 and IR13.39, that the understanding of WLC Assessments and the tools available for calculations are still developing, and therefore it is no surprise that there was disagreement over the lifetime carbon usage for the proposals and, more particularly, for a refurbishment.” (paragraph 21).
That might be seen as surprising given that surely it is the core issue.
It was said by some that redevelopment should be delayed until the grid is decarbonised, when “the extent of embodied energy, particularly from manufacturing materials, and from vehicle emissions would be much lower or eliminated. He agrees that the proposed development now would result in far more carbon emissions than after the UK has achieved a net-zero grid (IR13.99), because a fully renewably sourced electricity grid should allow most construction vehicles, and the manufacture of concrete, steel and other materials, to be undertaken using renewable energy rather than fossil fuels (IR13.40).” However, he recognised that would not be a practical general principle: “An assessment of the weight to give to the fact that development now will give rise to far more carbon emissions than in the future with a net-zero grid depends on the facts of the case and the planning policy context. Evidence has been put before the Secretary of State that the existing store is currently assessed as failing (IR13.71), and M&S has stated that it will not continue to occupy and trade from the store for very much longer if permission is refused (IR13.46). The Secretary of State has also concluded that the development is supported by some current and up to date development plan policies which aim to support the regeneration and economic development of the area (paragraph 26 below). Overall he considers that this matter carries limited weight against the proposal.” (paragraph 22)
Strangely, although possibly because of the lack of empirical evidence on the point at the inquiry, he gives no weight to any possible reduction in pressure for development elsewhere (paragraph 23).
Paragraph 24 is important:
“The Secretary of State agrees with the Inspector at IR13.43 that there should generally be a strong presumption in favour of repurposing and reusing buildings, as reflected in paragraph 152 of the Framework. In the circumstances of the present case, where the buildings in question are structurally sound and are in a location with the highest accessibility levels, he considers that a strong reason would be needed to justify demolition and rebuilding. However, he agrees that much must depend on the circumstances of the case, including how important it is that the use of the site should be optimised, and what alternatives are realistically available. Like the Inspector, the Secretary of State has gone on to consider whether there is a reasonable prospect of an alternative scheme going ahead.”
The Secretary of State’s position as to the prospect of an alternative scheme going ahead is vital to his overall decision:
“31. The Secretary of State considers that given the Inspector could not draw clear conclusions on this matter, and its importance in the determination of this application, a degree of caution ought to be exercised in drawing overall conclusions from the evidence, and considering the weight to be given to this issue. He finds the applicant’s evidence much less persuasive than the Inspector appears to have done in light of the gaps and limitations identified by the Inspector. He does not consider it appropriate to draw such firm and robust conclusions about this issue as the Inspector does (IR13.70- 13.75 and IR13.97). The Secretary of State is not persuaded that it is safe to draw the same conclusion reached by the Inspector, namely that ‘there is no viable and deliverable alternative’ (IR13.74), which leads to the Inspector’s overall conclusion that ‘there is unlikely to be a meaningful refurbishment of the buildings’ (IR13.97).
32. Overall, the Secretary of State concludes that the evidence before him is not sufficient to allow a conclusion as to whether there is or is not a viable and deliverable alternative, as there is not sufficient evidence to judge which is more likely. The Secretary of State also does not consider that there has been an appropriately thorough exploration of alternatives to demolition. He does not consider that the applicant has demonstrated that refurbishment would not be deliverable or viable and nor has the applicant satisfied the Secretary of State that options for retaining the buildings have been fully explored, or that there is compelling justification for demolition and rebuilding.
33. The Secretary of State notes that M&S has stated that it will not continue to occupy and trade from the store for very much longer if permission is refused (IR13.46). Whether or not M&S leave the store following the Secretary of State’s decision is a commercial decision for the company. However, taking into account the locational advantages of the site, the Secretary of State does not agree with the Inspector at IR13.75 that redevelopment is the only realistic option to avoid a vacant and/or underused site. He considers that there is potential for some harm to the vitality and viability of Oxford Street as suggested by the Inspector at IR13.46-47 and IR13.74. However, he does not agree with the Inspector that harm would be caused to the wider West End beyond Oxford Street (IR13.46) as he considers that this overstates the scale of the impact. He also does not agree with the Inspector’s conclusion that the harm would be substantial. The Secretary of State considers that potential harm to the vitality and viability of Oxford Street could arise from a refusal of permission but, unlike the Inspector, he considers that 8 the extent of any such harm would be limited. He attributes limited weight to this possibility.”
Time will tell if he is right.
I find his conclusion on the carbon which would go into construction materials unfathomable given that he failed to reach a conclusion on whether the new building would use less carbon than refurbishment of the existing building (paragraph 21 quoted earlier above):
“45. In respect of paragraph 152 of the Framework, the Secretary of State agrees that a substantial amount of carbon would go into construction (IR13.32), and that this would impede the UK’s transition to a zero-carbon economy (IR13.87). He has found that there has not been an appropriately thorough exploration of alternatives to demolition (paragraph 32 above). He has also taken into account that the carbon impacts would be to an extent mitigated by the carbon offset payments secured via the s.106 Agreement, which would be used to deliver carbon reductions (albeit it has not been demonstrated that the carbon reductions would fully offset the embodied carbon arising from this proposal). He has also taken into account the sustainability credentials of the new building (paragraph 21 above). Overall he concludes that in terms of paragraph 152 of the Framework, the proposal would in part fail to support the transition to a low carbon future, and would overall fail to encourage the reuse of existing resources, including the conversion of existing buildings. The Secretary of State considers that this carries moderate weight against the scheme.
46. The Secretary of State has also considered the Inspector’s conclusion at IR13.99 that of the material considerations in this case, the extent of embodied energy weighs most heavily against the scheme. He has taken into account that a substantial amount of embodied carbon would go into construction. He has also taken into account at paragraph 21 above the sustainability credentials of the new building, and has further taken into account that the carbon offset payments secured via the s.106 Agreement would be used to deliver carbon reductions (albeit it has not been demonstrated that the carbon reductions would fully offset the embodied carbon arising from this proposal). Given his conclusions on these matters, he considers, unlike the Inspector at IR13.99, that in the particular circumstances of this case, the embodied carbon carries moderate weight.”
Finally, a warning against treating this decision as too much of a precedent:
“47. The Secretary of State has considered the Inspector’s comments at IR13.94 that there is a ‘growing principle that reducing climate change should generally trump other matters’; and his comments at IR13.99 that as climate change policy is still developing, the Secretary of State is entitled to use his judgement to give this consideration greater weight than the Inspector has attributed to it. Policy in this area will continue to develop and in due course further changes may well be made to statute, policy or guidance. This decision letter sets out the Secretary of State’s judgement on the weight which attaches to these matters in the circumstances of this particular case.
48. The Secretary of State has considered the Inspector’s comment at IR13.95 that fear of precedent could be a material consideration of sufficient weight to justify dismissing the application. However, he is confident that any future decision-maker would pay attention to the whole decision and the detailed reasoning and not just to the outcome of the decision. In any event, the decision turns on its own very specific facts, including the relevant development plan policy matrix, the Inspector’s report and the evidence which was before the inquiry, which are all unlikely to be replicated in other cases.”
Easy to say but of course there will be attempts to read across these findings to other projects.
My overall prediction? An important part of Oxford Street may well indeed become vacant or subjected to uses which will do nothing for this vulnerable commercial area – which is currently frankly a disgrace. A project has been first stalled, then killed, brought forward by one of the country’s most respected companies, for reasons which aren’t even based on any finding that demolition and rebuild will lead to greater release of carbon over the lifetime of the building than a hypothetical refurbishment of the existing building – and, in so far as they are heritage-based, on the one hand ascribe a surprising amount of weight to the moderate levels of harm arising and on the other ascribe little weight to the public benefits that would surely arise from a twenty first century flagship department store in Oxford Street.
Some of you will get very upset by this blog post I’m sure. But not as upset as Mr Machin is about Mr Gove.
Once a building is included within a conservation area, the permitted development right to demolish it, by virtue of Schedule 2, Part 11, Class B of the General Permitted Development Order, no longer applies.
What a coincidence it would be if, after redevelopment of a building was proposed (in the face of local opposition), a local authority were to extend an existing conservation area so as to include the building, so as to prevent its demolition without the need for planning permission….
The claimant owns the former Debenhams store in Staines. Its application for planning permission for demolition and redevelopment was submitted on 10 November 2021 and elicited 268 objection letters, including objections on the basis that this would represent the “loss of an iconic building” and that there would be “heritage impacts on nearby conservation areas and listed building”. The application was subsequently refused on 6 June 2022, the reasons for refusal including “harm to the significance of designated heritage assets (including the [adjoining Staines Conservation Area]) and non-designated heritage assets” and “overdevelopment causing harm to the character and appearance of the area”.
Prior to the refusal, presumably to narrow the points in contention in relation to the planning application, on 25 February 2022 the claimant made an application to determine whether prior approval was required for the demolition of the building under the GPDO. On 24 March 2022 the council confirmed that prior approval was required (not in itself a big issue in that the prior approval process cannot engage with the principle of demolition as opposed to how it is carried out). But it then extended the Staines Conservation Area to include the building, before refusing prior approval on the basis that the building was now in a conservation area and therefore the GPDO permitted development right to demolish was no longer available.
Before deciding to extend the conservation area, the council had carried out a consultation process and it was reported internally within the council that there were no material objections to the proposal. Somehow, the council had overlooked detailed representations submitted by a heritage specialist (Pegasus’ excellent Gail Stoten) on behalf of the claimant.
When the claimant issued a pre-action protocol letter threatening to judicially review the decision to extend the conservation area, the council then prepared a supplementary report that purported to consider the overlooked set of representations, before concluding that the points made did not change the council’s decision.
The claimant relied on four grounds in its subsequent claim for judicial review:
Ground 1 – The council acted unlawfully in making the decision to extend the conservation area in that its true purpose was to prevent its demolition and redevelopment – an improper purpose and therefore contrary to law.
Ground 2 – The council failed to take into account the claimant’s representations.
Ground 3 – The officers’ reports were seriously misleading in not referring to the fact that Historic England had declined to list the building “on the basis that the Building did not possess the quality of design, decoration and craftsmanship to merit being of special architectural interest”.
Ground 4 – The purported reconsideration of the decision by way of the supplementary report was unlawful.
The claimant was represented at the hearing by Paul Tucker KC leading Jonathan Easton (now KC but not earlier in the week when judgment was handed down!).
On the first ground the judge stated:
“Since the purpose of designating or extending conservation areas is to preserve or enhance areas of “special architectural or historic interest”, the designation or extension of a conservation area which is motivated principally by a desire to protect a specific building and prevent its demolition will be unlawful.”
The judge considered that on the basis of the case law the question was whether the desire to protect the building from demolition was one impetus for the designation (which would be lawful) or the only impetus (unlawful). This is obviously a high bar for a claimant to clear. On the facts he concluded that it was the former and so ground 1 failed.
However the claim succeeded on the other grounds.
In relation to grounds 2 and 4:
“(i) the defendant failed to take account of the claimant’s representations in response to the consultation at the proper time; (ii) it did not do so in a legally adequate manner in the SR (if that was what the defendant purported to do in the SR); and (iii) having regard to (ii), it cannot be said that it is inevitable or even highly likely the outcome would not have been substantially different if the conduct complained of had not occurred.”
In relation to ground 3:
“…there was a clear need to provide Members with a fair and balanced analysis of the architectural worth of the Building. This included informing them of the outcome of the approach made to Historic England regarding possible statutory listing.” It was also obviously material that “in both 2004 and 2016, the Building had not been regarded as sufficiently important to merit even local listing.” Nor could members have been expected to know about these matters. “It has not been shown that their local knowledge extends to being aware of negative decisions on potential listing on the part of Historic England. Likewise, Members may not have been aware (or may have forgotten about), the previous local list review exercises.”
Given a local planning authority’s breadth of discretion in deciding whether to designate or extend conservation areas, this was quite a win for the claimant, basically down to the council’s administrative own goals (full credit to PT KC and JE KC of course…).
Let’s not forget the wider issues swirling around on the question of demolition of buildings, in the context of embodied carbon (we still await the Secretary of State’s M&S Oxford Street decision). See for example this campaigning piece Could a Grade III listing for buildings halt the UK’s tide of demolition? (22 November 2022) by Will Arnold, head of climate action at The Institution of Structural Engineers or this contrary view Why grade III listings should be avoided at all costs (Edward Clarke in The Times, 12 March 2023 (behind a paywall). But it surely brings the heritage system into disrepute when conservation designations are relied upon as a convenient means of controlling demolition for other purposes, whether those may be a reaction to the spectre of redevelopment or arising from laudable concerns about climate change.
I think I can point to something good that came out of Liz Truss’s premiership.
On 26 September 2022 she appointed former energy minister Chris Skidmore MP to carry out an “Independent review of net zero delivery by 2050 aims to ensure delivery of legally-binding climate goals are pro-growth and pro-business” and to “scrutinise green transition to make sure investment continues to boost economic growth and create jobs as well as increase energy security”.
Some of us may have feared the worst as to what lay behind this. Was the intention to back-end progress on the net zero by 2050 target?
The final report, Mission Zero: Independent Review of Net Zero, was published on 13 January 2023. I’m no expert but it seems to me – and to many better-informed commentators (although some of course express disappointment that the recommendations could be more radical) – to be a remarkably thorough and practical piece of work – running to 340 pages of waffle-free analysis and recommendations, with (such is the modern way of these things):
7 conclusions
10 priority missions
6 pillars
A “25 by 2025” set of recommendations
It only needed a golden thread and … bingo!
There is this good House of Lords library summary published on 20 January 2023 ahead of a short debate on the document that is due to take place on 26 January 2023.
Actually, if one looks more closely, there is a golden thread to the report: the need for urgent reform of the planning system so as to make the path to decarbonisation smoother and faster.
From the paragraph 12 of the executive summary:
“We have made great progress decarbonising already with success stories in offshore wind and electric vehicles and it is essential we continue these. However, too often, we heard of problems hampering business and local areas from going as far and as fast as they want to. Whether it is lack of policy clarity, capital waiting for investible propositions, infrastructure bottlenecks, or delays in the planning system, it is clear that we need action to catalyse the deployment of clean solutions, particularly if we want British companies to capture the economic benefits.”
See priority mission 7: ““unblocking the planning system and reforming the relationship between central and local government to give local authorities and communities the power they need to act on net zero”.
From pillar 4, “Net Zero and the Community”:
“There is plenty of regional, local and community will to act on net zero, but too often government gets in the way. The UK government must provide central leadership on net zero, but it must also empower people and places to deliver. Place-based action on net zero will not only lead to more local support but can deliver better economic outcomes as well.
Key recommendations
1. Government should simplify the net zero funding landscape by the next Spending Review
2. Government should fully back at least one Trailblazer Net Zero City, Local Authority and Community, with the aim for these places to reach net zero by 2030
3. Government should reform local planning and the National Planning Policy Framework now”
See recommended action 21 in the “25 by 2025” list:
“Local and regional Reform the local planning system and the National Planning Policy Framework now. Have a clearer vision on net zero with the intention to introduce a net zero test, give clarity on when local areas can exceed national standards, give guidance on LAEP, encourage greater use of spatial planning and the creation of Net Zero Neighbourhood plans, and set out a framework for community benefits.”
See also commentary like this:
“Planning system presents major barrier to net zero action. View of system on net zero is unclear and does not give sufficient weight to net zero as a national priority. Often slow and difficult to navigate, especially for individuals and communities.
Central government should reform the local planning system and the NPPF now. Have a clearer vision on net zero with the intention to introduce a net zero test, give clarity on when local areas can exceed national standards, give guidance on LAEP, encourage greater use of spatial planning and the creation of Net Zero Neighbourhood plans, and set out a framework for community benefits. Government should undertake a rapid review of the bottlenecks for net zero and energy efficiency projects in the planning system, and ensure that local planning authorities are properly resourced to deliver faster turnaround times”
“817. While the National Planning Policy Framework (NPPF) references climate change, it does not reference net zero specifically and the Review heard that the vision of the planning system on net zero is not clear. Too often there are conflicting or unclear messages, with important points relegated to footnotes.
818. The planning system should be an essential tool in delivering the changes needed for net zero. A system that appears ambivalent to net zero will not be capable of delivering the scale of change required.
819. The planning system should move towards implementing a test for all developments to be net zero compliant, ensuring enough lead-in time to prevent adverse economic consequences or stalling of current development plans. Across the economy the cost of building to net zero standards and using net zero technologies is coming down. Providing clarity and certainty on net zero requirements in the planning system could help drive further action and build supply chains, making net zero development the norm.
“Planning can be a driving force for not only net zero but for growth as well, helping to unlock opportunities across the country […] The reputation of planning in the UK would only be furthered if it were given the ability and position to be a key driving force for net zero. Our own research suggests that planning brings in millions to the UK and has the potential to have a much larger impact if the passion and expertise of our consultancies both large and small were showcased as one of our key exports” – the Royal Town Planning Institute.
820. There is also confusion over whether, where and how local authorities can exceed national standards on planning. The litigious nature of the planning system means local authorities are often unwilling to take risks, and so the system effectively puts a ceiling on local ambition.
821. For example, the Review heard from several stakeholders about the difficulty faced by West Oxfordshire District Council in their plans for the Salt Cross Garden Village.568 The Council had proposed that development at Salt Cross would be required to demonstrate net zero carbon, with submission of a validated and monitored energy strategy. However, in May 2022 the Planning Inspectorate provisionally found that such a policy was not ‘consistent with national policy or justified’ and the plan was modified as a result. This is a clear example of the planning system being unclear in its support for net zero.
“Local authorities are wary of the threat of legal challenge, this means to make confident use of their powers, they have to undertake rigorous legal checks, which slows delivery, adds expense and makes some of them risk averse” – Climate Change Committee (CCC).
822. Similarly, some local authorities felt that planning requirements on viability presented a hindrance to net zero development. These local authorities felt that some developers use viability requirements to reject proposed net zero improvements. These local authorities suggested that such viability considerations should be reformed or scrapped, and that net zero should be a fundamental consideration when determining the viability of a project. Current guidance states that viability assessments “should not compromise sustainable development.” This language should be strengthened to ensure that viability assessments actively encourage sustainable and net zero developments, and that assessments take a longer-term approach to determining what is viable.
823. Reforms to the planning system should therefore make it clear when local authorities can exceed standards and provide guidance on how local areas could go further should they wish to.”
(and there is more, through to paragraph 836 in the document, but you get the picture).
So how joined-up is this with current proposals to reform the planning system?
In summing up on behalf of the Government at the end of the House of Lords second reading debate on the Levelling-up and Regeneration Bill on 17 January 2023 Baroness Scott said this on climate change:
“The Government recognise the challenge of climate change. It is critical that the planning system must address this effectively. Through the Climate Change Act 2008 the Government have committed to reduce emissions by at least 100% of 1990 levels by 2050 and to produce national adaptation programmes every five years that respond to economy-wide climate change risk assessments. The Bill sets out that local plans “must be designed to secure that the development and use of land in”— the local planning authority area — “contribute to the mitigation of, and adaptation to, climate change.”
Our new outcomes-based approach to environmental assessment will ensure that the ambitions of the Environment Act and the 25-year environment plan are reflected in the planning process, placing the Government’s environmental commitments at the centre of decision-making.
The National Planning Policy Framework is already clear that plans should take a proactive approach to mitigating and adapting to climate change, taking into account the long-term implications for flood risk, coastal change, water supply, biodiversity and landscapes, and the risk of overheating from rising temperatures, in line with the objectives and provisions of the Climate Change Act 2008. The National Planning Policy Framework must be taken into account in preparing the development plan and is a material consideration in planning decisions. This includes the framework’s current policies related to climate change mitigation and adaptation. Furthermore, as committed to in the net-zero strategy, we will carry out a full review of the National Planning Policy Framework to ensure it contributes to climate change mitigation and adaptation as fully as possible. This will be consulted on as part of wider changes to the National Planning Policy Framework to support the ambitions in the Levelling-up and Regeneration Bill.”
Does this go far enough? Chris Skidmore’s report is a useful reminder of the importance of a properly functioning, resourced and managed planning system and I hope he has a hand in shaping the current reforms.
“If passed, REULRR will effectively sweep away any and all EU laws that the Government hasn’t actively decided to keep.
It does this by:
Repealing EU derived laws by the end of 2023. The government will be able to extend that deadline to 23 June 2026 (the tenth anniversary of the Brexit referendum) but can’t further extend it.
Repealing the principle of supremacy of EU law by the end of 2023. Currently, any EU decision reached before 1 January 2021 is binding on UK courts unless the government departs from it. However, this bill will subjugate all EU law in favour of UK law by default.
Repealing directly effective EU law rights and obligations in UK law by the end of 2023; and
Establishing a new priority rule requiring retained direct EU legislation to be interpreted and applied consistently with domestic legislation.”
She discussed this further at our clubhouse Planning Law Unplanned session last week on the Growth Plan, which Sam Stafford has now trimmed neatly into a 50 Shades of Planning podcast:
You will remember that the European Union Withdrawal Act 2018 had the effect of retaining, post Brexit, EU-derived domestic legislation such as the regulations in relation to environmental impact assessment, strategic environmental impact and conservation of habitats, leaving it to Parliament in due course to determine the extent to which the legislation should subsequently be repealed or amended.
”The REUL [retained EU-derived law] framework established by EUWA, however, was not intended to be maintained indefinitely on the UK statute book and now the Government is in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens.”
The Bill now places a firm deadline on that process:
“The Retained EU Law (Revocation and Reform) Bill facilitates the amendment, repeal and replacement of REUL by the end of 2023, and assimilates REUL remaining in force after that date by removing the special EU law features attached to it.”
The end of 2023 deadline can only be extended, to 23 June 2026 “should a lack of parliamentary time, or external factors, hinder progress towards reform of retained EU law prior to the 2023 sunset date.”
Is this of concern?
In short, yes of course. It may be said that the Government is committed to a principle of non-regression from current environmental standards, but given the current political pinball and the lack of relevant ministers with any real experience of the sheer complexity and nuances of what they are dealing with, frankly anything is possible. Campaign groups are certainly on edge: Brexit freedoms bill’ could abolish all pesticide protections, campaigners say (Guardian, 29 September 2022).
To an extent, at a high level, the principle of non-regression is built into the trade and co-operation agreement between the UK and EU which was signed on 30 December 2020 and came into force on 1 May 2021. The UK gave various, at least theoretically, binding commitments in the agreement as to non-regression from environmental levels of protection, which I describe in my 27 December 2020 blog post Brexit & Planning: An Update.
There are also generalised commitments within the Environment Act 2021 (which of course Parliament is always of course at liberty to amend or repeal as it chooses). The Government consulted in May 2022 in relation to its draft environmental principles statement. The statement has not yet been finalised and there is not yet any duty upon ministers to take it into account in their policy making. This may not be until summer 2023 at the earliest! The Office for Environmental Protection (a body established pursuant to the 2021 Act) has criticised the statement for “a relatively limited degree of ambition”. The OEP has similarly criticised as unambitious the Government’s draft environmental targets, also consulted upon pursuant to the 2021 Act.
As against these inchoate commitments to environmental standards, what is going to give in the face of a Government which, according to its Growth Plan, will be “disapplying legacy EU red tape where appropriate” in the investment zones it is proposing, and which proposes a Planning and Infrastructure Bill which will be:
“reducing the burden of environmental assessments
reducing bureaucracy in the consultation process
reforming habitats and species regulations”?
Genuine improvements to the processes are certainly possible. But do we trust the Government to strike an appropriate balance, hurtling towards a self-imposed December 2023 deadline and (at the latest) 2024 general election? In the coming year, most of our environmental legislation, and planning legislation to the extent that it is intertwined, will need to be reviewed, line by line, and, given that most of it is in the form of secondary legislation (and the sheer lack of time – after all the REULRR Bill covers all EU derived legislation!), there will be relatively limited Parliamentary scrutiny of that process. Even with the best of intentions, how is this timescale even going to be possible if we are to avoid a complete bodge-up? We have been treading (often polluted) water for so long and we still have no sense whatsoever of what the long trumpeted “outcomes focused” approach will look like in practice – eg see my 2 April 2022 blog post Is the Nature Recovery Green Paper The Answer? (& If So What Was The Question?)
On a slightly different, although possibly related, note….
At 6 pm on Wednesday 5 October 2022 we will be having a discussion on Clubhouse with barrister Hashi Mohamed, around the themes of his FT article The housing crisis sits at the centre of Britain’s ills (1 October 2022, behind paywall) and his recent book A home of one’s own, a trenchant and personal look at the politics of planning and housing.
Join via this link. If you use the link to RSVP in advance (you don’t have to) you’ll get a reminder when we start – and we can get a feel for likely numbers.
What is needed to calm the nerves all round – on planning, on housing, on environmental protection – is detail. When are we going to get it? HM Treasury announced on 26 September 2022:
“Cabinet Ministers will announce further supply side growth measures in October and early November, including changes to the planning system, business regulations, childcare, immigration, agricultural productivity, and digital infrastructure.”
Always just another month or so to wait, every time.
Much has happened since my last blog post two weeks ago. Eclipsing all else has been the death on 8 September 2022 of Her Majesty Queen Elizabeth II – surely one of our greatest Britons. It is right that we mourn as a country as if a family. If anyone deserves that, she does.
What is appropriate in this period of mourning? Hashi Mohamed and I decided to postpone our clubhouse chat about his new book A home of one’s own that was due to take place this Monday. It will now happen at 6 pm on Wednesday 5 October 2022 and we hope that you can join us. It felt wrong to be promoting the event actively this weekend and having what I hope will turn out to be a lively, no holds barred, discussion on what is wrong with our approach to housing.
However, it feels equally wrong to pretend that everything else of concern in the world is on hold. There was literally no other news on the BBC last night.
And yet, these are momentous times. Liz Truss became prime minister on 6 September 2022 and on the morning of 8 September 2022, opening a debate on energy policy, she announced an energy price guarantee for individuals and businesses as wider energy policy changes (see Government announces Energy Price Guarantee for families and businesses while urgently taking action to reform broken energy market (press statement, 8 September 2022)). The energy price guarantee (a matter that is literally of life or death to many people, and a matter of survival or not for many businesses) needs to be fleshed out and of course one of the controversial aspects of the measure is the decision not to impose any further windfall tax on energy suppliers. Another controversial aspect is the unsurprising announcement by Truss that the Government would resume its support for fracking:
“We will end the moratorium on extracting our huge reserves of shale, which could get gas flowing in as soon as six months, where there is local support.”
Fracking proposals have effectively been on hold since November 2019, following this announcement by Andrea Leadsom and Kwasi Kwarteng: Government ends support for fracking (press statement, 2 November 2019)
“On the basis of the current scientific evidence, government is confirming today that it will take a presumption against issuing any further Hydraulic Fracturing Consents. This position will be maintained unless compelling new evidence is provided. While future applications for Hydraulic Fracturing Consent will be considered on their own merits by the Secretary of State, in accordance with the law, the shale gas industry should take the government’s position into account when considering new developments.
The OGA has advised the government that until further studies can provide clarity, they will not be able to say with confidence that further hydraulic fracturing would meet the government’s policy aims of ensuring it is safe, sustainable and of minimal disturbance to those living and working nearby.
The Infrastructure Act 2015 included the requirement for operators to obtain Hydraulic Fracturing Consent which ensures that all the necessary environmental and health and safety permits have been obtained before activities can commence. The Consent process also includes the requirement for an independent financial analysis of the operator to be carried out to ensure they can meet their licence obligations, including decommissioning.”
“We placed a moratorium on fracking in England with immediate effect. Having listened to local communities, we have ruled out changes to the planning system. We will not support fracking unless the science shows categorically that it can be done safely.”
By way of contrast, as quoted by Sir Keir Starmer in his response to Truss’ speech, this was Kwarteng from March 2022 when he was Business Secretary:
“Even if we lifted the fracking moratorium tomorrow, it would take up to a decade to extract sufficient volumes – and it would come at a high cost for communities and our precious countryside.
Second, no amount of shale gas from hundreds of wells dotted across rural England would be enough to lower the European price any time soon.
“And with the best will in the world, private companies are not going to sell the gas they produce to UK consumers below the market price.”
Surely there are at least five questions at large:
Is there now adequate scientific evidence that fracking is safe?
We are waiting for the publication of a review by the British Geological Survey of the science of fracking, commissioned in April by BEIS, which has apparently had it since early July. Its publication is apparently imminent.
Have we any headroom within the “net zero by 2050” target to allow us to continue relying on extracting and burning hydrocarbons and what example does this set?
A bigger question but surely this is a big step away from where we should be heading.
Is it feasible in any event to extract meaningful levels of shale gas which would have any meaningful effect either on energy security or energy prices?
Maybe circumstances have changed so radically since Kwarteng’s March 2022 comments such that current gas prices suddenly make fracking a potentially economic proposition? We don’t have the data but what a u-turn that would be from that March statement. In any event is there the evidence that as a country we do even have large amounts of shale gas to extract? The quantities would surely need to be enormous to have any economic impact.
Given the technical and planning processes involved, and widespread public opposition, how will projects secure local support such that gas can be flowing within six months?
It’s interesting to compare with the on-shore wind policy position – still restrictive, the killer restriction being, by way of footnote 54 of the NPPF, that “a proposed wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified as suitable for wind energy development in the development plan; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing.”
Who knows, perhaps we will see a return to the idea of a “shale wealth fund” for the benefit of local communities that I have just remembered that I was writing about in my 8 August 2016 blog post Back Yard Back Handers?
So is this all largely about anti-woke political positioning – and, as with the decision not to impose any further windfall tax on them, about signalling to energy companies that the UK is still open for (fossil fuel) business?
In the words of our fictional Prime Minister Francis Urquhart: “You might very well think that; I couldn’t possibly comment.”
Simon Ricketts, 10 September 2022
Personal views, et cetera
NB For up to the minute policy commentary on fracking issues I do recommend the Drill or Drop website.
SIMONICITY 