Category: Compulsory purchase

And Now Take A Deep Breath…

Can I share with you that there have been times this year when the pace of announcements in terms of changes to the planning system, when taken with some significant case law to digest, has led me to wonder how I am meant to keep up?

Even in the last month, no sooner than the new National Planning Policy Framework and associated announcements (see my 14 December 2024 blog post I Love It When A National Planning Policy Framework Comes Together) was published, there were pre-Christmas sucker punches in the form of:

I’m not complaining; change is needed. However, now is not the time for deep dives into either topic, other than to say this:

  • The English Devolution white paper is necessary, if complex, reading. Aside from heralding significant local government reorganisation and devolution of power to sub-national levels, for us the most key paragraph 3.5, housing and strategic planning, which concludes with this summary of what is proposed:

 “Box A: Universal system of strategic planning

The government has been clear that it will implement a universal system of strategic planning within the next five years. The model that is proposed is the Spatial Development Strategy (SDS), which is well established in London, the London Plan having been produced and continually reviewed over 20 years.  As set out at 3.5, where Strategic Authorities exist, they will be responsible for producing or agreeing the SDS for their areas.

While it is our ambition for every area of England to be covered by a Strategic Authority, this will be a gradual process. We want to move quickly on strategic planning. This means that where no Strategic Authority is in place or is planned to be in place, the government will take a power through the forthcoming Planning and Infrastructure Bill to direct defined groupings of upper-tier county councils, unitary councils, and in some cases Foundation Strategic Authorities to deliver an SDS. Given the intention to have all SDSs produced by Strategic Authorities in due course, the government believes it makes sense in the first instance for these groupings of local authorities to be guided by the sensible geography criteria that have been set out for agreeing new devolution deals (see 2.2.1). The arrangements for agreeing a SDS in areas without a Strategic Authority will follow the same principles as Foundation Strategic Authorities.

In all areas, SDSs will guide development for the Local Planning Authorities in the area, and their local plans will need to be in general conformity with the SDS. However, Local Planning Authorities should not delay development of Local Plans while they await the adoption of an SDS. Relevant Local Plans should continue to be updated or developed alongside the SDS process.

Areas will be able to set a SDS to enable their area to grow, identify the infrastructure that is needed and strategic locations for development. This will include an obligation to apportion an assessment of the housing need of the Strategic Authority across its constituent members. The government intends for that assessment to be the cumulative total of the local housing need of each constituent member, as determined by the Standard Method set out in national planning policy. The apportioned figure set for each constituent member in the SDS will then be the minimum housing requirement for the purposes of each member authority’s next Local Plan. Agreement on the precise distribution of housing need will be agreed through the SDS development process. We also expect that the authorities producing SDSs will be able to encourage the pooling of resources and prioritising of efforts across their constituent authorities to meet housing need.

The content of SDSs will be kept deliberately high level with the dual purpose of preserving detailed policy and site allocations for local planning authorities through their local plans, and for enabling strategic plans to be produced quickly, with the intention of achieving national coverage by the end of this Parliament. The government expects high levels of collaboration to be demonstrated between the Strategic or upper-tier local authorities who are responsible for the SDSs and local planning authorities in the area. There will be a formal duty for responsible authorities to consult district councils on the development of the SDS and a route for district councils to raise concerns with the planning inspectorate.

Across all areas, these arrangements will encourage partnership working and we envisage that there will be genuine opportunities for efficiencies by sharing research, evidence and expertise that can support both the SDS and Local Plans. However, the government is determined to ensure that, whatever the circumstances, SDSs can be concluded and adopted in a reasonable time period. In order to ensure universal coverage of strategic plans, we will legislate for intervention powers, which will enable the government to intervene where plans are not forthcoming to the timeframe. These will include directing on timetables or particular policy content such as the distribution of housing need, through to taking over the preparation of an SDS and adopting it on behalf of strategic planning authorities.”

The intention of achieving national coverage by the end of this Parliament”! The necessary legislative changes will be introduced in part via the forthcoming Planning and Infrastructure Bill and partly through the forthcoming English Devolution Bill. I’m pleased to be part of the strategic planning working group chaired by Catriona Riddell and founded by Prior + Partners which is looking to help lay the groundwork to ensure that strategic planning can work effectively. Three half days sessions have been held so far, with two to follow in January.

But there will be plenty more to explore in the white paper beyond the introduction of strategic development strategies. For instance, once the relevant strategic development strategy is in place, Mayoral Strategic Authorities will have equivalent development management powers as the London Mayor, enabling them to intervene with applications of potential strategic importance and will have the power to raise a Mayoral Community Infrastructure Levy to support the delivery of strategic infrastructure projects.

There are other nuggets hidden away in the text, for instance the proposed replacement of the community “right to bid” for assets of community value by a strengthened “right to buy”.

  • As for the Government’s compulsory purchase compensation proposals, the big news is of course the potential widening of the scope for “no hope value” CPOs, to include acquisitions of “brownfield land in built-up areas, suitable for housing delivery, but with no extant planning permission for residential development” and “land allocated for residential development in an adopted plan but which has not come forward for development.” I speculated as to what might be proposed, and as to the potential implications, in my 21 July 2024 blog post, Hope/No Hope. Although you may prefer just to try my Spotify playlist, A Deep Dive Into Land Value Capture.

Can I end on a more serious note? I started this post wondering how people are meant to keep up. I’ve also been wondering what the best role is for blogs like this. I started writing it for my own benefit – just to join the dots on what is happening week by week , as well as for amusement – I like writing! It’s brilliant that many of you regularly read what I do but I never meant to replace more reliable sources of CPD. Indeed just preparing summaries of documents is not what this blog is about. It hit me hard when I learned that EG (formerly the Estates Gazette) will be closing next year. Those are proper journalists. My gratitude goes out to all of those in the specialist press (particular shout-outs to Planning and the Planner) and also those in the sensible end of mainstream media who are all trained, and paid, to report and analyse on what is happening. I can only provide amateur snapshots. The day job – practising, rather than pontificating on, all this stuff – is always my bigger focus. This is a golden age for planning  and planning law blogs (I’m always in awe of eg Zack, Nicola, Sam Stafford, Philip Barnes, Paul Smith and others – oh no who have I offended by omission?) but we need to keep professional journalism alive too!

Related thought: this week there was a fascinating The Lawyer Podcast: Christmas Special — is someone you know a workaholic? Do listen – it is equally relevant for planners as lawyers! The evening I listened to it I was going to go back to my desk to read one of the documents I mentioned above but, taking in its message, I stopped and deliberately closed my eyes and listened to some music instead. Our professional area of interest is so intertwined with public policy, industry gossip etc that I find it difficult sometimes to work out whether what I am doing is work. Maybe LinkedIn needs that gambling industry warning: “When the Fun Stops, Stop”.

Now stop and have fun! Merry Christmas.

Simon Ricketts, 21 December 2024

I’m dreaming of a white cat Christmas…

Hope/No Hope

I know, it’s the hope that kills you. We still await any real detail as to the new government’s proposed reforms of the planning system, despite the King’s Speech and background briefing paper (17 July 2024) and despite newspaper headlines, TV news vox pops and much earnest speculation from many of us. But it’s early days and we should be patient.

In this post I just want to focus on the proposed reforms to compulsory purchase compensation which would in some cases remove the ability of landowners to recover “hope value”.

We know that there will be a Planning and Infrastructure Bill. We do not know anything more as to its likely contents than is set out on pages 17 to 19 of the background briefing document. It is intended to “accelerate housebuilding and infrastructure delivery” by:

  • streamlining the delivery process for critical infrastructure including accelerating upgrades to the national grid and boosting renewable energy, which will benefit local communities, unlock delivery of our 2030 clean power mission and net zero obligations, and secure domestic energy security. We will simplify the consenting process for major infrastructure projects and enable relevant, new and improved National Policy Statements to come forward, establishing a review process that provides the opportunity for them to be updated every five years, giving increased certainty to developers and communities.
  • further reforming compulsory purchase compensation rules to ensure that compensation paid to landowners is fair but not excessive where important social and physical infrastructure and affordable housing are being delivered. The reforms will help unlock more sites for development, enabling more effective land assembly, and in doing so speeding up housebuilding and delivering more affordable housing, supporting the public interest.
  • improving local planning decision making by modernising planning committees.
  • increasing local planning authorities’ capacity, to improve performance and decision making, providing a more predictable service to developers and investors.
  • using development to fund nature recovery where currently both are stalled, unlocking a win-win outcome for the economy and for nature, because we know we can do better than the status quo. Our commitment to the environment is unwavering, which is why the Government will work with nature delivery organisations, stakeholders and the sector over the summer to determine the best way forward. We will only act in legislation where we can confirm to Parliament that the steps we are taking will deliver positive environmental outcomes. Where we can demonstrate this, the Bill will deliver any necessary changes.”

All we are told so far about reform of compulsory purchase compensation is in that second bullet point. But of course, the Levelling-up and Regeneration Act 2023 already goes some way in this direction. Section 190 (“power to require prospects of planning permission to be ignored”) amended the Land Compensation Act 1961 to enable an acquiring authority, when submitting a compulsory purchase order for confirmation, to include a direction that the prospect of planning permission is to be ignored where the underlying project will deliver the provision of a specified number of affordable housing units. If the acquiring authority does not deliver the scheme it promised (including the provision of specific numbers of affordable housing units) within 10 years of the issuing of the original direction, or earlier where there is no realistic prospect that the scheme can be delivered within 10 years, affected landowners may ask the Secretary of State (or the Welsh Ministers for CPOs in Wales) to issue a direction that additional compensation may be paid to them by the local authority. The Act also provides for an equivalent mechanism in relation to some CPOs for NHS purposes or educational purposes. These provisions all came into force on 30 April 2024. (How did a Conservative government arrive at this incursion into the traditional compulsory purchase principle of “equivalence”? See eg my 11 June 2022 blog post Land Value Capture Via CPO which tracks the proposal back to at least the Conservative May 2017 manifesto and for a deeper historical dive into the vexed issue of land value capture I recommend Richard Harwood KC’s brilliant paper delivered to the Compulsory Purchase Association in April 2018, Land Value Capture).

So how might the new government go further? The Labour manifesto simply said “We will take steps to ensure that for specific types of development schemes, landowners are awarded fair compensation rather than inflated prices based on the prospect of planning permission”. It seems to me that the government has deliberately left itself the scope to widen the categories of CPO for which compensation can exclude any element of land value attributable to the prospect of “no scheme world” development. The Planning and Infrastructure Bill would be a straight-forward vehicle to achieve this, by amendment of section 190 of the 2023 Act.

“Fairness” is of course a loaded word, going to the heart of the political as well as practical issues which land value capture inevitably gives rise to. To what extent should the state be able to take land without paying the owner what that land is worth in the open market? The nuanced answer to that question probably lies in the wording of the European Convention on Human Rights. The right to respect for private and family life and our home is qualified: “except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The right not to be deprived of our possessions is similarly qualified: “except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” And the state has the right to “enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

I can see that the “public interest” argument can be made in relation to affordable housing, the NHS and schools (although of course it is still at root a political decision to fund these projects in part via land value capture rather than by way of public spending paid for by other taxation measures). It will be interesting to see how much further the new government looks to go. New towns? Green Belt? Shrugged shoulders emoji.

Aside from the politics (which are beyond my pay grade), there are the practical issues (which are well within it). How will the spectre of compulsory acquisition of land, for less than what in the real world it is worth, influence the strategies of the participants? Will developers look to work pro-actively with local authorities to explore the potential for using the mechanism to achieve viable projects? Will land owners and promoters be discouraged from early land promotion activity for fear that the value gains they achieve will not be realised by them? Will processes become even more contentious given even higher stakes, particularly where land owners can show that they can bring forward development without the need for exercise for exercise by the local authority of its compulsory purchase powers?

All should be clearer before too long – at least, here’s hoping.

Simon Ricketts, 21 July 2024

Personal views, et cetera

Extract, courtesy Wikipedia, from Shepard Fairey’s Barack Obama 2008 electoral campaign poster, featuring the word “hope“.

Treasure Hunt: LURA Commencement Regulations & Transitional Provisions

Peter Ellis sent me overnight a judgment in the Chancery Division of the High Court from Friday: Cotham School v Bristol City Council (HHJ Paul Matthews, 2 February 2024) – part of the convoluted saga of whether some school playing fields had been wrongly registered as a town green. Peter particularly liked, as do I, the judge’s quote from George Bernard Shaw (paragraph 12):

“This kind of legal treasure hunt, searching in the interstices of secondary legislation for the text of the currently applicable law, and holding several inconsistent ideas in your mind simultaneously, is certainly not for the faint-hearted. How lay people can deal with it is beyond me. Little wonder that George Bernard Shaw once wrote that professions “are all conspiracies against the laity” (Preface to The Doctor’s Dilemma, 1906).”

Nice one. Whether we’re laity or lawyers, “treasure hunt” is exactly how it feels as we try to work out when, how and if elements of the Levelling-up and Regeneration Act 2023 will be brought into force.

The Levelling-up and Regeneration Act 2023 (Commencement No. 2 and Transitional Provisions) Regulations 2024  were made on 25 January 2024. (They followed a completely irrelevant (as far as we are concerned) set of commencement provisions made on 18 December 2023 with an even more snappy title: The Elections Act 2022 (Commencement No. 11, Transitional Provisions and Specified Day) and Levelling-up and Regeneration Act 2023 (Commencement No. 1) Regulations 2023).

So what do the latest Regulations achieve?

As of 31 January 2024 a whole range of provisions relevant to the planning system has been switched on, namely:

“(a) [  ]

(b) [  ]

(c)section 94 (national development management policies: meaning);

(d)section 106 (street votes), so far as it confers a power to make regulations and so far as it relates to the provisions of Schedule 9 brought into force by paragraph (q);

(e)section 107 (street votes: community infrastructure levy), so far as it confers a power to make regulations;

(f)section 123 (duty in relation to self-build and custom housebuilding);

(g)section 129 (hazardous substances consent: connected applications to the Secretary of State);

(h)section 140 (enforcement of community infrastructure levy);

(i)section 180 (acquisition by local authorities for purpose of regeneration);

(j)section 181 (online publicity), so far as it confers a power to make regulations;

(k)section 184 (corresponding provision for purchases by Ministers), so far as it relates to the provisions of Schedule 19 brought into force by paragraph (r);

(l)section 185 (time limits for implementation);

(m)section 186 (agreement to vary vesting date);

(n)section 187 (common standards for compulsory purchase data);

(o)section 188 (‘no-scheme’ principle: minor amendments);

(p)Schedule 5 [  ]

(q)paragraph 1 (Town and Country Planning Act 1990), sub-paragraphs (6) to (10) of Schedule 9 (street votes: minor and consequential amendments), so far as they confer a power to make a development order;

(r)paragraph 1 (online publicity) of Schedule 19 (compulsory purchase: corresponding provision for purchases by Ministers), so far as it confers a power to make regulations.”

 However, care is needed. In most cases, the bringing into force of these sections simply enables the Secretary of State to introduce the actual changes without any changes yet “on the ground”. Looking through the sections, the only exceptions to that in the above list (save for some minor and unexciting tweaks to the wording of some provisions)  appear to be various provisions in relation to compulsory purchase – eg acquisition for “improvement” can include “regeneration”; the possibility for the confirming authority to provide for an implementation deadline of more than three years, and the possibility for the authority to agree a postponed vesting date and minor amendments to the “no scheme” principle in section 6D of the Land Compensation Act 1961 (from the explanatory notes at the end of the Regulations: “These sections provide that where land is acquired for regeneration or redevelopment which is facilitated or made possible by a relevant transport project, the ‘scheme’ includes the relevant transport project. The amendments ensure that the definition of ‘scheme’ includes any re-development, regeneration and improvement that form part of the ‘scheme’).

As of 12 February 2024 the biodiversity net gain regime is switched on (albeit, as we know, with later dates for minor development and for NSIPs).

As of 30 April 2024, section 190 of the Act (power to require prospects of planning permission to be ignored) comes into force, in relation to England. This is the big “ignore hope value in some situations” one – from the explanatory notes: “The amendments allow confirming authorities, in relation to certain public sector acquiring authorities exercising certain CPO powers, to direct that the value associated with the following matters are not payable, provided doing so is in the public interest: (a) the prospect of the grant of a planning permission; and (b) compensation for the loss of the potential of development for which there was a reasonable expectation that planning permission would have been granted in the absence of the CPO”) and as of 31 January 2025 section 189 of the Act (prospects of planning permission for alternative development) comes into force (from the explanatory notes: “The amendments make various changes including to when prospective planning permission is to be treated as certain, what certificates of appropriate alternative development should contain, to clarify when the relevant planning date falls, whether account should be taken of the expenses incurred in the issue of a certificate, and corresponding amendments to the process of appeals to the Upper Tribunal against certificates”)– I’ll leave others to look at these in more detail. There are transitional provisions set out in Regulation 6 of the Regulations.

Ugh, that was hard yards. NB if you want to understand what drives me to continue writing these interminable posts, you might want to listen to the latest Hitting the High Notes/50 Shades of Planning podcast, where Sam Stafford interviews me and asks me exactly that question, maybe not quite in those terms. Listen here .

Simon Ricketts, 4 February 2024

Personal views, et cetera

Join The Club/Environmental Outcomes Reports

I mentioned in last week’s blog post that the Government has of course now published its consultation on the environmental outcomes reports system (17 March 2023) which is proposed to replace environmental impact assessment and strategic environmental assessment, as per the enabling provisions in the Levelling-up and Regeneration Bill. Consultation responses are due by 9 June 2023.

This is going to be a fundamental change to our plan-making and decision-making process.

We are going to dive into the detail in a Clubhouse session arranged for 4 pm on 30 March, led by my Town Legal partner Duncan Field, with other panellists including Riki Therivel (Levett-Therivel), Juliette Callaghan and Venessa Thorpe (Trium) and Elin Fradgley (Quod). So that we have an idea of likely numbers and so you receive a reminder when the event starts, do RSVP here.

By way of reminder, Part 6 of the LURB (clauses 138 to 152) sets out the legislative framework for environmental outcomes reports.

The “non-regression” duty set out in clause 142(1) is an important protection:

“The Secretary of State may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed.”

The consultation paper sets out a number of the issues arising from the present system, all of which I’m sure we can all recognise:

• inefficiency

• duplication

• risk aversion

• loss of focus

• issues with data

Under “risk aversion”, Sullivan LJ is quoted from his 2004 Court of Appeal judgment in Blewett:

“It would be no advantage to anyone concerned […] if Environmental Statements were drafted on a purely “defensive basis” mentioning every possible scrap of information […] Such documents would be a hindrance, not an aid, to sound decision-making by the local planning authority since they would obscure the principal issues with a welter of detail”.

(Personally I would expand the comment: this is the direction that the whole planning system has gone, not just in relation to environmental statements, but the whole gamut of application documents, (particularly design and access statements), planning committee reports and planning permissions themselves often with 50 or more conditions imposed where the permission relates to development of any scale or complexity).

I read the consultation document with a view to summarising the main changes from the current system but can’t improve on this pithy summary by Duncan:

“EORs are expected to act as a translator of technical assessment work and only address performance against outcomes in a concise and publicly accessible way; in doing so EORs will need to identify necessary mitigation and/or compensation.

– The range of possible topics (outcomes) to be covered by EORs is likely to be slimmed down to avoid duplication with other assessments required in the planning process.

– Although Government will maintain a distinction between projects where EORs are always required and projects where they may be required, there should be fewer discretionary decisions around screening due to the inclusion of more directive screening criteria.

– On changes to scoping there seems likely to be less of a focus on scoping outcomes in or out and more of a focus on assessing scoped in outcomes in a proportionate way (so some outcomes may be included but assessed in less detail).

– Outcomes will be measured by reference to data-based indicators, and these will be developed at a national level to ensure consistency.

– The Government acknowledges that there needs to be better alignment between assessments at a strategic (plan) level and those at a project level so that they speak to each other; it is hoped that the focus of EORs on the same outcomes and the application of nationally determined indicators will help with this.

– Guidance on alternatives will be developed to focus assessment on realistic/credible options. However, this will need to include an analysis of the alternatives by reference to the mitigation hierarchy (avoidance-mitigation-compensation).

– There will be a greater emphasis on adaptive management of mitigation and monitoring/enforcement of measures after decisions have been taken.

– There is recognition that there needs to be better access to and collection of environmental data to assist with EORs.”

The Government envisages that an EOR at the project stage under the Town and Country Planning Act would be structured as follows:

• a short introduction (which references the project details in the accompanying Planning Statement)

• a short, high level, summary of how reasonable alternatives and the mitigation hierarchy were considered early in the development of the project

• an assessment of contribution towards achieving an outcome supported by the indicators set out in guidance – this will include

• the residual effects on the environment identified through the underlying technical work, with relevant conclusions in the technical work clearly pinpointed

• the current baseline and relevant trend data, similarly identified

• commentary on levels of uncertainty for that data or indicator set

• proposed mitigation, and

• monitoring proposals

• a summary of the contribution of the cumulative effects of the project as a whole on outcomes and how this relates to the conclusions of any strategic or plan level assessment.

Outcomes (to be consulted upon in coming months), measured by reference to a national data set, will need to be set out for at least the following:

• biodiversity

• air quality

• landscape and seascape

• geodiversity, soil and sediment

• noise and vibration

• water

• waste

• cultural heritage and archaeology

The idea is promising. The real challenge, not referred to in the consultation paper? How to discourage the sorts of legal challenges which have caused our current processes to be so bloated, whilst ensuring that unjustified assessment short cuts cannot be taken.

The LURB is currently making slow progress through its Lords Committee stage, due to the hundreds of amendments tabled, some of them by the Government, such as (see amendment 412D) the proposed change to the compulsory purchase system that would allow acquiring authorities in some circumstances to seek a direction, when making a compulsory purchase order, disapplying any entitlement to hope value on the part of the land owner. This could have huge implications on the the land promotion and development market – in that the risk of compulsory purchase at an under-value may well prove a significant potential disincentive to development promoters and those funding them. As usual it was a bit chaotic to begin with but we had a good and sparky discussion on the issue on Clubhouse last week, with the basic concept being defended by Shelter’s Venus Galarza, against an array of compulsory purchase surveyors and lawyers (none of whom were objecting to the objective of enabling greater delivery of housing, including affordable housing – rather the way it being done!). Shelter have their own slightly different amendment, amendment 414, narrow than that of the Government. You can hear it all here.

Looking further ahead, we now have a Clubhouse session on the dreaded Infrastructure Levy arranged for 2pm on 19 April, to be led by another of my Town Legal partners, Clare Fielding. If you would like to join the panel for that one do let me know.

Simon Ricketts, 25 March 2023

Personal views, et cetera

Back To Reality

You may be returning from that escapist world that is MIPIM and grimacing at the prospect of a week’s worth of emails, or you may be finishing a week of grimacing at all the LinkedIn pics of your colleagues in Ray-Bans. In any event, we now have three developments in relation to the Levelling-up and Regeneration Bill, currently at Committee stage in the House of Lords, sent to test the old saying that a change is a good as a rest…

I’m very grateful for three of my partners, not part of the MIPIM contingent, who have particularly had their eyes on the following:

Government amendment relating to removal of “hope” value in relation to particular categories of CPO

The Government tabled amendments on 13 March 2023 to the Levelling-up and Regeneration Bill that would have significant impacts on landowners. Raj Gupta has written a Compulsory Reading blog post LURB in the Lords – no hope (16 March 2023) on the potentially far-reaching implications. We have arranged a Clubhouse Planning Law Unplanned session at 5 pm on Thursday 23 March to discuss the proposal, led by Raj, Jon Stott, Greg Dickson and other leading specialists. Please RSVP here if you would like to tune in and/or take part in the discussion.

Government consultation on environmental outcomes reports – a new approach to environmental assessment

The Government published its consultation today, 17 March 2023, on the design on its proposed new system of environmental assessment. See the press statement, and consultation document. Duncan Field has set out some initial comments in a LinkedIn post. Again, we are going to arrange a Clubhouse Planning Law Unplanned event, probably for Thursday 30 March but further details will appear shortly.

Government consultation on the proposed infrastructure levy

The Government published its consultation today, 17 March 2023, on the design of the proposed infrastructure levy. See the press statement, technical consultation and a February 2023 research paper published alongside it. Clare Fielding will shortly be publishing a Levy-Headed blog post as to the likely implications.

Now to unpack. And let my picture be a warning for you to keep your parents away from the Be Real app.

Simon Ricketts, 17 March 2023

Personal views, et cetera

CPO No

The political soap opera this weekend, plus another fabulous sunny Autumn morning – versus writing a blog post about compulsory purchase? Time to use that thinking face emoji.

The inspector’s decision dated 4 October 2022 to decline to confirm the London Borough of Barking and Dagenham Council (Vicarage Field and surrounding land) Compulsory Purchase Order 2021 certainly brings with it some lessons, or at least reminders, for those promoting compulsory purchase orders in association with public/private sector regeneration projects.

Here are the inspector’s conclusions in full:

“368. The scheme underpinning the CPO is wholly in accordance with the development plan and has the benefit of outline planning permission. There is an extremely compelling case in the public interest for the development, in meeting economic, environmental and social needs. This would considerably outweigh the heritage harm and loss of existing jobs.

369. The shopping centre and town centre overall needs redevelopment, it is the lowest ranking Borough in London for poverty, and this scheme is the catalyst that would spark further regeneration. There are also no realistic alternative proposals that would achieve the purpose for which the AA is proposing to acquire the land.

370. I am completely aware that failure to confirm the CPO would have an adverse consequence of losing the opportunity to comprehensively redevelop the site at this time. The Council has staked its reputation on the delivery of the scheme and its delivery is critical to achieve its ambitions.

371. I fully recognise much of the potential financial viability of the scheme is reliant upon the scheme itself and it is a complete ‘catch 22’ situation. The developer is confident the Scheme will be delivered. The funding intentions are clear, and I have no doubt that the developer has access to funds.

372. Nevertheless, there is fundamental lack of tangible and substantive evidence on viability. Given the gravity of the 2016 appraisal, and the lack of an updated appraisal, I cannot be certain that the scheme is financially viable despite all assurances from the AA. Other methods to present the evidence confidentially could have been explored and, if the scheme was viable, I do not understand why this evidence was not presented. Whilst the AA claims viability evidence from objectors has not been presented, it is for the AA to demonstrate substantive information as to the financially viability of the scheme. It has not done so in a way that convinces me.

373. Consequently, because I cannot conclude that the scheme is financially viable, I cannot be confident that there is a reasonable prospect that the scheme will proceed at this time, or that the necessary resources are likely to be made available within a reasonable time scale. This is because there is an expectation of return, and no developer or investor would pursue a scheme that is not economically viable or feasible. This is even if it has access to funds, sees a long term vision, or pools funds so that one scheme may perform better than another. The legal agreements also provide me with little comfort of delivery, despite the depreciating value of the lease.

374. This makes it difficult to show conclusively that the compulsory acquisition of the land included in the order is justified in the public interest at this time, as detailed by CPO Guidance.

375. Added to this are my concerns that inadequate negotiations have taken place, when considering the CPO Guidance. It could not be said that delays have been keep to a minimum. The lag from Cabinet approving the making of the CPO to making the CPO was 3 years. There has been a significant delay in the submission of reserved matters applications, and the outline permission expires in April 2023.

376. The efforts to acquire the CPO lands by private treaty have also been largely ineffective. Claims are made by objectors that the financial offers have not been market value, and it is the shopping centre that has failed, not the surrounding businesses on Ripple Road and Station Parade. There have also been limited efforts to relocate those affected by the CPO to date. A ‘not before’ date has been absent and this has resulted in those subjected to the CPO unable to fulfil business plans, living in limbo for a long period of time. Full information was also not provided at the outset and there was no clearly specified case manager.

377. Consequently, whilst I acknowledge the pressing need for redevelopment and the extremely compelling case for the CPO, for the above reasons, I cannot confirm that the compulsory acquisition of the land included in this Order is proportionate or justified in the public interest.

378. Thus, the London Borough of Barking and Dagenham Council (Vicarage Field and surrounding land Compulsory Purchase Order) 2021 is not confirmed.”

I recommend that you read my partner Raj Gupta’s 10 October 2022 blog post The Vicarage Field CPO and viability and that you subscribe to his forthcoming posts which will cover:

  • the Inspector’s criticisms of the promoter’s engagement with occupiers and the deficiencies of its relocation strategy.
  • other points made by the Inspector including in relation to planning, publicity and timing matters with some bonus musings on whether the CPO reforms proposed by LURB (e.g. conditional confirmation) would have made any difference to the outcome.

The decision is no doubt frustrating to all those who worked so hard, with the best of objectives – whilst no doubt equivalently a huge relief for those organisations, businesses and individuals whose land interests, activities and livelihoods were at stake.

 Michael Walton posted these words on LinkedIn:

“The proposed regeneration of Vicarage Field shopping centre in Barking adds enormous value to the transformative vision for the borough.

As Head of Regeneration Strategy at Be First I advised on initiatives which helped accelerate growth in Barking & Dagenham. Oversight of Vicarage Field was led by another division, and I moved on from Be First prior to the public inquiry into the CPO being held this year.

The decision made recently by the Inspector to not confirm the CPO is disappointing. Prior to it being made, I highlighted similar issues around deliverability. However, the Inspector also placed a high bar on negotiations with affected parties when reaching her decision.

Nonetheless, this should not deter local authorities from seeking CPO powers as part of their regeneration plans – it merely reinforces the need to de-risk projects and put forward a compelling case.”

Agreed. In fact, I suspect that the decision will prove helpful to promoters of future CPOs, in underlining for them what has to be in place, however difficult it may be in current uncertain circumstances, in order for a CPO to be confirmed.

Now to check whether the sun is still shining – and whether we still have a Prime Minister.

Simon Ricketts, 15 October 2022

Personal views , et cetera

Land Value Capture Via CPO

There has been much consternation in some circles about DLUHC’s 6 June 2022 consultation paper Compulsory purchase – compensation reforms: consultation which, amongst other things, proposes introducing an amendment to the Levelling-up and Regeneration Bill so as to “to allow acquiring authorities to request a direction from the Secretary of State that, for a specific scheme, payments in respect of hope value may be capped at existing use value or an amount above existing use value where it can be shown that the public interest in doing so would be justified.”

Key passages from the consultation paper:

“29. An option for the framework of seeking a direction might be as follows:

a. Before a public sector acquiring authority:

a. makes a CPO; or

b. applies for other types of Order seeking compulsory purchase powers,

it may apply for a direction from the Secretary of State in relation to a specific scheme.

b. The direction sought may, in relation to the proposed scheme, have the effect of:

a. taking no account of AAD [appropriate alternative development] in a valuation; or

b. limiting the payment of any effect of AAD to no more than a specific percentage over the existing use value.

c. In seeking a direction from the Secretary of State, the authority would need to:

a. identify the scheme;

b. provide details of the estimated land value that would be captured as a result of issuing a direction for the scheme; and

c. evidence how that land value would be applied to the scheme for the public benefit and/or how certainty over the level of compensation payments in respect of prospective planning permission will benefit the scheme.

d. In considering an application for a direction then Secretary of State may appoint a person with requisite expertise to make a recommendation as to whether to issue a direction.

e. Any disputed compensation that relates to AAD would be settled by the Upper Tribunal (Lands Chamber) on the basis of the terms of the direction.”

“…we would welcome views as to whether the proposals set out should go further and look to cap or remove hope value generally or in relation to specific types of schemes. “

“Should the government decide, following consideration of the consultation responses, to take forward this proposal, our intention is for the power to make such directions to be introduced as an amendment to the Levelling-up and Regeneration Bill.”

Land owners, wherever their land is in England and Wales, may find that it can be compulsorily acquired at less than market value. And, on the subject of market value, what effect will that risk have on the value attributed to land in the first place (above existing use value)?

There have been some trenchant criticisms, for instance, as set out in my partner Raj Gupta’s Compulsory Reading 8 June 2022 blog post and Jonathan Stott’s blog post A few thoughts on Government’s proposal to limit compulsory purchase compensation to less than market value. Yes, really!

I can certainly see that care is needed to ensure that:

• the use of the procedure by acquiring authorities is procedurally fair, transparent and justified in public policy terms by the benefits thereby unlocked that could not otherwise have been achieved

• the sheer risk that the procedure may be used, anywhere, will not spook lenders.

However, the wider policy aspiration to achieve greater land value capture, in the public interest, is not new or a particular surprise. See my 31 August 2018 blog post Market Value Minus Hope Value = ? and the Government’s subsequent Response to the Housing, Communities and Local Government Select Committee inquiry on land value capture (November 2018):

“The Government agrees that there is scope for central and local Government to claim a greater proportion of land value increases. The Government’s priority is delivery, in line with the Housing Minister’s commitments to provide more higher quality housing more quickly.


Changes to land value capture systems can have profound impacts on the land market in the short term, even where they are sensible for the longer term. Accordingly, the Government’s priority is to evolve the existing system of developer contributions to make them more transparent, efficient and accountable. It will of course continue to explore options for further reforms to better capture land value uplift, providing it can be assured that the short-run impact on land markets does not distract from delivering a better housing market.”

Or, even further back, my blog post Money For Nothing? CPO Compensation Reform, Land Value Capture which quotes, for instance from a Conservative Party press release issued a week before its May 2017 manifesto:

“To further incentivise councils to build, the Conservatives also intend to reform compulsory purchase rules to allow councils to buy brownfield land and pocket sites more cheaply. At the moment, councils must purchase land at “market value”, which includes the price with planning permission, irrespective of whether it has it or not. As a result, there has been a more than 100% increase in the price of land relative to GDP over the last 20 years and the price of land for housing has diverged considerably from agricultural land in the last fifty years. Between 1959 and 2017, agricultural land has doubled in value in real terms from £4,300 per acre to £8,900 per acre, while land for planning permission has increased by 1,200%, from £107,000 to just over £1,450,000. Local authorities therefore very rarely use their CPO powers for social housing, leaving derelict buildings in town centres, unused pocket sites and industrial sites remain undeveloped.”

The proposals have grown over time – this is no longer simply about brownfield land and “pocket sites”.

What do we think? Will this be a workable tool that might enable authorities to secure development with reduced land costs such that affordable housing and other essential social and physical infrastructure can be provided? Or a proposal that will give rise to more heat (litigation) than light and that interferes unacceptably with the rights of land owners as against the rights of society more generally?

There are so many angles to this: political, economic, commercial and legal. Which make this an ideal topic for our next clubhouse session: 5pm on Wednesday 15 June 2022. We will have an array of well-known commentators, including Rebecca Clutten QC, Caroline Daly, Raj Gupta, Colin Cottage, Henry Church and Richard Asher. Link here.

And if you missed our webinar last week “Will the Bill deliver more or less housing? Yes or no?” featuring Simon Gallagher (Department of Levelling Up, Housing and Communities), Zack Simons (Landmark Chambers), Kathryn Ventham (Barton Willmore now Stantec) Meeta Kaur and myself, there’s a youtube link here.

Simon Ricketts, 11 June 2022

Personal views, et cetera

Extract from photo by Valeria Fursa courtesy of Unsplash

Does LURB Herald A More Zonal Approach to Planning After All?

I’ll explain what I mean in a moment.

But first some preliminaries.

LURB of course seems to be the now accepted acronym for the Levelling-up and Regeneration Bill, laid before Parliament on 11 May 2022.

The Bill proposes a wide range of legislative measures across local government, regeneration, planning and compulsory purchase.

Aside from the Bill itself it’s worth having to hand:

⁃ the Explanatory Notes

⁃ the Government’s policy paper

⁃ the Government’s response to the Select Committee report on the planning white paper

My Town Legal colleagues have put together a fantastic (I think) 17 page summary of the main planning and compulsory purchase provisions of the Bill. Thanks Safiyah Islam and the following contributors:

• Part 3, Chapter 1 – Planning Data – Aline Hyde

• Part 3, Chapter 2 – Development Plans – Emma McDonald

• Part 3, Chapter 3 – Heritage – Cobi Bonani

• Part 3, Chapter 4 – Grant and Implementation of Planning Permission – Lucy Morton

• Part 3, Chapter 5 – Enforcement of Planning Controls – Stephanie Bruce-Smith

• Part 3, Chapter 6 – Other Provision – Stephanie Bruce-Smith

• Part 4 – Infrastructure Levy – Clare Fielding

• Part 5 – Environmental Outcomes Reports – Safiyah Islam

• Part 6 – Development Corporations – Amy Carter

• Part 7 – Compulsory Purchase – Raj Gupta

* Relevant clauses in Part 2 (Local Democracy and Devolution), Part 8 (Letting by Local Authorities of Vacant High-Street Premises), Part 9 (Information About Interests and Dealings in Land) and Part 10 (Miscellaneous) – Victoria McKeegan

If you would like to receive further detailed updates from time to time please email town.centre@townlegal.com.

I held a Clubhouse session on 12 May 2022 where I discussed the changes and their possible implications alongside Catriona Riddell, Phil Briscoe, Nick Walkley and Meeta Kaur. It is available to listen to here.

For a deeper dive into the compulsory purchase elements, do join our next Clubhouse session at 6 pm on Tuesday 17 May 2022, where my colleagues Raj Gupta and Paul Arnett will be leading a discussion with special guests Charles Clarke (DLUHC, previous chair of the Compulsory Purchase Association), Henry Church (CBRE, and current chair of the Compulsory Purchase Association), Caroline Daly (Francis Taylor Building), Virginia Blackman (Avison Young) and Liz Neate (Deloitte). Some line up! Join here.

Raj and Paul have also started a blog, Compulsory Reading, focused on CPO issues. The first post is here and, guess what, this will be compulsory reading if your work touches at all on the intricate and changing world of compulsory purchase law.

Phew! So what was I getting at in the heading to this post? Surely any fule kno that there was once a government white paper in August 2020 that, amongst other things, proposed a more zonal approach to planning – with local plans throwing all areas into three hoppers: protected, restricted and growth – but that the political lesson learned was that this would be a vote loser and so the zonal approach was abandoned by incoming Secretary of State Michael Gove in the wake of the Chesham and Amersham by-election?

The idea of growth areas (where allocation would amount to automatic development consent) has certainly been abandoned, but the consequence of a number of the proposals in the Bill in my view leads us more towards a system where there is much less decision making flexibility in relation to individual planning applications and appeals. Instead, planning decisions will need to be made in accordance with the development plan and national development management policies “unless material considerations strongly indicate otherwise”.

So developers will need to make sure that:

⁃ development plans (local plans, neighbourhood plans) etc allocate the necessary land.

– the associated mandatory local design codes are workable

⁃ they can work within the constraints of whatever national development management policies the Government arrives at.

If development accords with these requirements, planning permission should be a doddle. If not, you plainly need to overcome a heavy presumption against. Our current flexible system (sometimes good, sometimes bad) will take a big lurch towards being rule-based or, dare I say it, zonal.

This may be a Good Thing or it may be a Bad Thing. Much depends on whether development plans, local design codes and national development management policies are properly tested for their realism. There will be even more focus on testing the soundness of local plans.

However, when it comes to local plan making, there are some major unresolved uncertainties:

⁃ First, what housing numbers do local authorities need to plan for? The Government still aspires to a 30 month local plan preparation to adoption timescale but that is only going to work if you have a largely “plug in and play” approach to the numbers, as was envisaged in the White Paper. What will happen to the standard methodology? We don’t get know. The Government’s policy paper says this:

“The changes in the Levelling Up and Regeneration Bill will require a new National Planning Policy Framework for England. The Government continues to listen to the representations of MPs, councillors and others on the effectiveness not only of the formula but the surrounding policies. Alongside Committee stage of the Bill, it intends to publish an NPPF prospectus setting out further thinking on the direction of such policies.”

What numbers are we planning for as a country? Are we still targeting 300,000 homes a year? The Government’s response to the Select Committee report on the planning white paper says this:

“The Government is determined to create a market that builds the homes this country needs. Our ambition is to deliver 300,000 homes per year on average and create a market that will sustain delivery at this level. There is compelling evidence that increasing the responsiveness of housing supply will help to achieve better outcomes. There seems to be consensus that 250,000 to 300,000 homes per annum should be supplied to deliver price and demand stability. For example, a 2014 joint KPMG and Shelter report highlighted that 250,000 homes per annum were needed to address price and demand pressures.”

⁃ Secondly, what will replace the duty to co-operate, which will be abolished? What will the new duty to assist really amount to? Can authorities adjoining urban areas with high unmet housing needs simply turn away from meeting those needs?

⁃ Thirdly, what if the allocations in the plan prove to be undeliverable or do not come forward? The safety net/potential stick of the five year housing land supply requirement (and presumably the tilted balance) in the case of up to date plans is to be abolished according to the policy paper:

“To incentivise plan production further and ensure that newly produced plans are not undermined, our intention is to remove the requirement for authorities to maintain a rolling five-year supply of deliverable land for housing, where their plan is up to date, i.e., adopted within the past five years. This will curb perceived ‘speculative development’ and ‘planning by appeal’, so long as plans are kept up to date. We will consult on changes to be made to the National Planning Policy Framework.”

Much is to be resolved here before we can begin to work out whether the proposals in the Bill will be an improvement on the present position.

Of course, the Government recognises that more work is needed. The following forthcoming consultation processes are identified:

“Technical consultations on the detail of the Infrastructure Levy and changes to compulsory purchase compensation.

• A consultation on the new system of Environmental Outcomes Reports which will ensure we take a user-centred approach to the development of the core elements of the new system, such as the framing of environmental outcomes as well as the detailed operation of the new system.

• A technical consultation on the quality standards that Nationally Significant Infrastructure Projects will be required to meet to be considered for fast-track consenting and associated regulatory and guidance changes to improve the performance of the NSIP regime.

• Proposals for changes to planning fees.

• Our vision for the new National Planning Policy Framework (NPPF), detailing what a new Framework could look like, and indicating, in broad terms, the types of National Development Management Policy that could accompany it. We will also use this document to set out our position on planning for housing, and seek views on this, as well as consulting on delivering the planning commitments set out in the British Energy Security Strategy.”

I hope this serves as some sort of introduction to the Bill and a taster as to some of the issues which will be occupying so many of us as the Bill passes through its Parliamentary stages. I don’t expect it to be on the statute book before early 2023, with a fair wind, and most of its provisions will not be in force until 2024 at the earliest. Final health warning: Bills change – we can expect plenty of amendments, omissions and additions over coming months.

Aside from my earlier plugs for our newsletters and the Planning Law Unplanned clubhouse sessions, I would also recommend two other blog posts: those of Nicola Gooch and Zack Simons . None of us has come up with a satisfactory LURB pun yet but I’m sure we all have our teams working on it.

Simon Ricketts, 14 May 2022

Personal views, et cetera

Beauty, Infrastructure, Democracy, Environment, Neighbourhoods

Oligarchs Out

In the 21st century, London has increasingly been a safety deposit box for the wealthy of the world – so many people with incomprehensible amounts of wealth, including (but not exclusively) the so-called Russian “oligarchs” (“one of a small group of powerful people who control a country or an industry”).

Just look at some of the properties we’re talking about: The London mansions owned by Russian oligarchs from ‘Billionaire’s Row’ pad to estate almost size of Buckingham Palace (MyLondon, 4 March 2022). See also this BBC piece this morning (5 March 2022): The mega-rich men facing global sanctions.

Obviously, if you come by your wealth legitimately so be it, but the sums these people apparently own would suggest at best that something is wrong with the very structure of capitalism, and at worst…well draw your own conclusions. And to what extent is this all assisting the evils of the Putin regime – and its equivalents briefly eclipsed in the news cycle?

The UK financial sanctions list (4 March 2022) currently identifies 196 Russian individuals, with the reason for each person being on the list.

For a good introduction to the complex and evolving world of sanctions, I found DAC Beachcroft’s 4 March 2022 briefing UK Sanctions – The Evolving Response to the Russian Invasion of Ukraine and what it means for UK businesses particularly useful:

“Prior to 10 February 2022, the Regulations allowed the UK Government to ‘designate’ (that is, to impose sanctions on) a person who is or has been involved in ‘destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine’. Individuals and entities that are so ‘designated’ are listed on the UK Consolidated Sanctions List (“the UK Sanctions List”) along with confirmation of the reasons for designation.”

“Asset freeze” sanctions “seek to impose prohibitions or requirements for the purposes of:

1. freezing the funds or economic resources owned, held or controlled by certain individuals and entities;

2. preventing financial services being provided to or for the benefit of certain individuals or entities;

3. preventing funds or economic resources from being made available to or for the benefit of certain entities or individuals; or

4. preventing funds or economic resources from being received from certain individuals or entities.”

“On 10 February 2022, the UK Government expanded its power to designate entities and individuals from a wide variety of sectors as it gave itself the power to designate persons ‘involved in obtaining a benefit from or supporting the Government of Russia’, including:

1. Carrying on business as a Government of Russia affiliated entity

This will include any entity which is owned directly or indirectly by the Russian Government or in which the Government of Russia holds directly or indirectly a minority interest or which has received some form of financial or other material benefit from the Government of Russia.

2. Carrying on business of economic significance or in a sector of strategic significance to the Government of Russia

This includes the Russian, chemicals, construction, defence, electronics, energy, extractives, financial services, information and communications and transport sectors.

3. Owning or controlling directly or indirectly or working as a director or trustee of a Government of Russia affiliated entity or an entity falling within any of the other above categories.”

As described in Commons Library briefing Countering Russian influence in the UK (25 February 2022), the so-called “golden visa” scheme has now been scrapped:

“On 17 February, the Government announced the immediate closure of the Tier 1 (Investor) visa to new applicants. The visa offered up to five years’ permission to stay in the UK and a route to permanent residence, in return for a minimum £2m investment. A review of all investor visas granted between 2008 and April 2015 was announced in 2018. The Government has said results will be published “in due course”.

Russians are the second most common nationality granted investor visas since 2008, although they accounted for a much smaller proportion of applicants since 2015. Just over 2,500 investor visas have been issued to Russians since 2008 (roughly one fifth of all such visas issued). People granted investment visas before 2015 may have now completed the residence requirement for permanent residence (and possibly British citizenship).”

Events have of course prompted the Government belatedly to fast-track the Economic Crime (Transparency and Enforcement) Bill. Its 2nd Reading will be on 7 March 2022. As set out in its explanatory notes, the Bill’s main objectives are to:

“Prevent and combat the use of land in the UK for money laundering purposes by increasing the transparency of beneficial ownership information relating to overseas entities that own land in the UK. The Bill therefore creates a register of the beneficial owners of such entities. The register will be held by Companies House and made public.

Reform the UK’s Unexplained Wealth Order (UWO) regime to enable law enforcement to investigate the origin of property and recover the proceeds of crime. The measures in the Bill aim to strengthen the UK’s fight against serious economic crime; to clarify the scope of UWO powers; and to increase and reinforce operational confidence in relation to UWO powers.

Amend financial sanctions legislation, including the monetary penalty legal test and information sharing powers to help deter and prevent breaches of financial sanctions.”

However, is this going far enough? There have been pieces in the media reporting that the French government had “seized” a Russian oligarch’s yacht. There is no detail as to what the precise legal status of that action was – there would need of course to be a solid legal basis for confiscation (presumably without compensation) but it is interesting that Boris Johnson and Michael Gove have been reported to be looking at the potential to bolster the Economic Crime Bill so as to facilitate the confiscation of UK property owned by Russian oligarchs (see for instance Michael Gove calling for UK to seize London homes of Russian oligarchs CityAM 27 February 2022 and Michael Gove considers options for seizing oligarchs’ property The Times 3 March 2022). Is this just tough talk and no action? I know you may not want to hear this but… any legislation, and individual decisions made under it, would need to be tightly framed to be consistent with the European Convention on Human Rights (and in a rule of law based, democratic, society that is surely right):

“Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” (Article 8).

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” (Article 1 of the First Protocol)

Of course, confiscation without compensation may be properly framed as necessary in the public interest but this will need care.

The London Mayor issued a press statement on 26 February 2022, Mayor demands seizure of property connected to oligarchs, supporting the confiscation of assets but going further in terms of measures to seek to minimise the number of empty homes in the capital (surely these measures are essential to ensure that we can look in the eye those who say that there is no need for additional new homes?) and to penalise foreign buyers more generally (jury out as far as I’m concerned – baby, bathwater etc):

“The Mayor has previously criticised the Government’s failure to deliver on the promise of a register of overseas property ownership and has now set out further measures to charge those who buy property in the UK with no intention of living here and leave them empty while London faces a housing crisis.

As well as the register of overseas ownership, the Mayor is calling for:

• Seizure of property assets held by allies of President Putin

• Raising the amount overseas owners have to pay for leaving their home empty by increasing the council tax ‘empty homes premium’

• Raising capital gains tax on overseas buyers from 28 per cent to 40 per cent

• Increasing the taxes paid by overseas companies investing in property by increasing the Annual Tax on Enveloped Dwellings”

For further reading, there is this article in yesterday’s edition of the Economist: The rise and fall of Londongrad (behind pay wall, 5 March 2022).

Finally, there are some ways to support the people of Ukraine.

This week’s Clubhouse event will be at a slightly earlier time, at 5pm on Tuesday 8 March. Its theme is “BREAK THE BIAS – women in planning/law”, to mark this year’s International Women’s Day theme. We have various speakers including Meeta Kaur, Nikita Sellers, Caroline Daly, Nicola Gooch and Zenab Hearn. Link here.

Simon Ricketts, 5 March 2022

Personal views, et cetera

Liberty Leading The People (Delacroix)

Stay Alert! A Quick Guide To All Those MHCLG Announcements

On 13 May 2020, MHCLG published:

Guidance: coronavirus planning update

Guidance: Coronavirus compulsory purchase

Guidance: Coronavirus community infrastructure levy

Guidance: construction site working hours Q&A

Guidance: consultation and pre-decision matters

Guidance: plan-making

Guidance: neighbourhood planning

On the same day, the Planning Inspectorate updated its guidance on site visits, hearings, inquiries and events.

On 14 May 2020, the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 were made and came into force that day. The Regulations were accompanied by an Explanatory Memorandum.

The highlights

Validation and determination of applications for planning permission

No changes have been made to the timescales for determining planning applications. Developers are however encouraged to agree extensions of the period for determination. Local authorities have been urged to give priority to validating urgent COVID-19 related applications for planning permission and associated consents.

Publicising applications for planning permission

Temporary regulations (expiring on 31 December 2020) were made and came into force on 14 May to supplement existing publicity arrangements for planning applications, listed building consent applications and environmental statements for EIA development. There is now flexibility to take other reasonable steps to publicise applications and environmental statements if the usual specific requirements cannot be discharged relating to site notices, neighbour notifications, newspaper publicity or availability of hard copy documents. Steps can include the use of social media and electronic communications and they must be “proportionate to the scale and nature of the development”. Guidance has also been issued on this topic.

Planning Conditions

MHCLG has made it clear that planning conditions should not be a barrier to allowing developers and site operators flexibility around construction site working hours to facilitate safe working. Where only short term or modest increases in working hours are required, LPAs are encouraged to use their discretion to not enforce against a breach of working hours conditions. Where longer term measures or other significant changes are required, applications to amend conditions should be made, which LPAs should prioritise and turn around in 10 days. Requests to work up to 9 pm Monday to Saturday should not be refused without very compelling reasons.

Community infrastructure levy

The existing CIL regulations of course allow charging authorities limited flexibility to defer CIL liability. Amendments will be made to the regulations “in due course” to increase flexibility, but that will still depend upon charging authorities deciding to exercise the new discretion available to them. Authorities will be able to defer payments, temporarily disapply late payment interest and provide a discretion to return interest already charged. However, these changes will only apply to small and medium-sized developers with an annual turnover of less than £45 million. It remains to be seen how this limitation will be addressed in the regulations, for example where a special purpose vehicle, potentially offshore, has assumed liability. The new instalment policies for deferred payments will only apply to chargeable development starting after the changes come into effect, but they are anticipated to apply to “phases“ of the development starting after that date. The announcement on 13 May added that “existing flexibilities and the government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate, they will not be charged extra for matters that were outside of their control.”

Section 106 planning obligations

Local planning authorities are encouraged to consider the deferral of section 106 obligations, e.g. financial payments. This will require variations to existing section agreements and undertakings. Local planning authorities are encouraged generally to take a “pragmatic and proportionate” approach to the enforcement of section 106 planning obligations

Virtual Committees

These are already enabled, by way of Regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020. MHCLG is working with the Planning Advisory Service (PAS) to provide further practical advice on the way these meetings are managed.

Planning Appeals

PINS issued a further update on 13 May. Site visits are being commenced and PINS is considering whether there are types of cases that can proceed without a site visit. The first digital appeal hearing took place on 11 May as a pilot and PINS is aiming for 20 further examinations, hearings and inquiries in May and June. It is also exploring hybrid options – a mix of in person and by video public/telephone hearings and is considering “social distance” events.

Local Plans

MHCLG is working on ways to address the local plans process in order to meet aspirations to have all local plans in place by 2023. In particular, the use of virtual hearings and written submissions is being considered.

Neighbourhood Plans

Regulation 12 of the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 prevents any neighbourhood planning referendum from taking place until 6 May 2021. Updated guidance was issued in April allowing neighbourhood plans awaiting referendums to be given significant weight in decision making.

Nationally Significant Infrastructure Projects

The government is working with consenting departments to support the continuation of decision-making to minimise the impact of current restrictions on the consideration of DCO applications and the Planning Inspectorate has updated its guidance.

Compulsory purchase orders

There is now pragmatic advice as to the service of documents. Acquiring authorities are encouraged to allow more time for responses to requests for information about interests in land or submitting objections to CPO. There is also encouragement to authorities to act responsibly regarding business and residential claimants, particularly regarding the timing of vesting orders and payment of compensation, which is particularly relevant when considering evictions. Authorities are reminded of their obligation to make advance payments of compensation in accordance with statutory time limits given cash flow difficulties which claimants may currently face.

Concluding remarks

To my mind, this is all welcome and congratulations are due in particular to the relevant civil servants. Of course, there is more to be resolved, for instance the vexed question of extending time limited planning permissions (see my 4 April 2020 blog post Pause Not Delete: Extending Planning Permissions) as well as the Regulations in relation to CIL, but it is good to see this progress. No wonder MHCLG’s Simon Gallagher was prepared to come on this week’s Have We Got Planning News For You!

Whether by serendipity or, now I think about it, of course, good planning, the RTPI published on 15 May 2020 its research paper Pragmatic and prepared for the Recovery: The planning profession’s rapid response to Covid-19. This last week has been a good start.

Simon Ricketts, 16 May 2020

Personal views, et cetera

(Thank you to Town’s Michael Gallimore and Lida Nguyen for allowing me to draw from a client note prepared earlier this week).