Can’t Buy A Thrill: Evenings In High Streets

We’re hosting a workshop for London First this week, as part of its London’s Transforming High Streets programme.

Usual mistake of agreeing to say a few words and then reading what it’s about:

The aim of the workshop is to bring together London First members and stakeholders to investigate the barriers to town centre transformation thrown up by the licensing system, and whether there is a disconnect between the places envisioned by the planning system and the permissions given to operators through licensing. Too often we hear examples of businesses trying to create the kind of vibrant live-work-eat-play, 24h places that consumers increasingly demand, only to be actively shut down through licensing. Or developers berated for not incorporating bold design into their regeneration plans, knowing full well the suggested outdoor spaces would never get permission to be used for anything mildly interesting. Are there good examples of where licensing is actively enabling change and growth, and how can we make sure this becomes standard practice to support our a fast-changing retail and hospitality sector?

This is all close to my heart. Opportunities for socialising and cultural activity, theatres, live music, all make London what it is. I walked through the latest phase of Argent’s Kings Cross development last night, the area already buzzing with people enjoying the spaces and venues. And, whilst some change is always inevitable, even more important are London’s existing pubs and venues, under threat by any combination of the five Rs: rents, rates, regulation, residents and redevelopment.

But I realised how much a planning lawyer like me operates in a professional silo, trained to think of the statutory regimes for alcohol and entertainment licensing, just like Building Regulations, as “not planning law”.

Which is a bit odd.

If town and city centres are to retain their central economic and social role they have to be about more than working and shopping. And that needs legislation and policy to be focused on common objectives.

See this BBC piece The growing importance of the night-time economy (17 November 2019). The “live music” sector alone made a contribution of £1.1 billion to the UK economy in 2018, according to UK Music’s Music By Numbers 2019 (20 November 2019).

I can only talk first hand about London.

When becoming London Mayor in May 2016, one of Sadiq Khan’s early steps was to appoint Amy Lamé as London’s “night czar”. Aside from presenting her excellent Sunday afternoon BBC6 Music show (at a time when even I am still awake), she has played an active role in encouraging all aspects of London’s night time economy and the Mayor has made steady progress, including on TfL’s important night tube strategy. Could more have been done? I would be interested to hear views.

As announced in the Mayor’s 31 January 2019 press release London’s night-time economy can help save the high street, London’s Night Time Commission published its report Think Night: London’s Neighbourhoods from 6pm to 6 am with its ten recommendations:

RECOMMENDATION 1: The Mayor should put the night at the heart of London policy- making. He should introduce a Night Test for all new policies to rate their impact on London’s culture, sociability, wellbeing and economy at night.

RECOMMENDATION 2: The Mayor should produce Night Time Guidance for boroughs. This will help them develop holistic Night Time Strategies that go beyond the night time economy and cover all aspect of their town centres and other areas between 6pm and 6am.

RECOMMENDATION 3: The Mayor should set up a London Night Time Data Observatory. This central hub of data on the economy, transport, licensing, infrastructure, safety and health would help boroughs create their Night Time Strategies and inform local decision making

RECOMMENDATION 4: The Mayor should publish an annual report on London at Night. It should include a series of night time metrics that show his progress in implementing the Night Time Commission’s recommendations and achieving the ambitions of his 24-Hour City Vision

RECOMMENDATION 5: The Mayor should establish a Night Time Enterprise Zone fund that boroughs can bid into, starting with a Pathfinder Zone in 2020

RECOMMENDATION 6: The Mayor should carry out research to establish the case for longer opening hours across London

RECOMMENDATION 7: The Mayor, should help establish new partnerships across the capital to improve safety, reduce violence and make London welcoming for everyone at night

RECOMMENDATION 8: The Mayor should develop guidance to help boroughs, landowners and developers create welcoming, safe and vibrant public spaces at night

RECOMMENDATION 9: The Mayor should set up a Late Night Transport Working Group to ensure that workers, visitors and customers can get around London quickly and safely at night. The group should consider extending night services, introducing a ‘Night Rider’ fare that allows workers to move between bus, tube, train, DLR or tram in a single fare, and encourage more use of TfL’s land and buildings at night

RECOMMENDATION 10: The Mayor should extend the remit of London & Partners so that they can promote London’s night time offer to Londoners

The Mayor’s responses to the recommendations have included:

• The Night Czar convening a quarterly 24-hour London delivery group at City Hall to assess the impact of policies on London at night

• The Night Czar and Night Time Borough Champions Network working together to produce guidance for boroughs to develop night-time strategies

• Creating a Night Time Data Observatory to build a full picture of the capital at night

• Reporting progress on the Commission’s recommendations as part of the Mayor’s Annual Report

• Creating a Night Time Enterprise Zone pilot scheme to help a borough develop its night-time offer

• Conducting research into the benefits of longer opening hours across London

• Championing partnerships across the capital that support the night-time economy and investing in the creation of the Safer Sounds Partnership

• Including guidance on improving public spaces at night as part of the work to develop borough night-time strategies

• Establishing a Late-Night Transport Working Group to ensure transport meets the needs of London’s night workers

• Continuing to support London & Partners in their work to promote the capital’s 24-hour tourism offer

In June the Mayor launched a bidding process to select a pilot Night Time Enterprise Zone, as well as establishment of the Safer Sounds Partnership, led by the music industry and part of the Safer Business Network, aimed at developing better liaison between venue operators and event organisers with police and council licensing teams, together the night czar (see his 7 June 2019 press release).

On 10 September 2019, the Mayor announced that Walthamstow High Street had won the bidding process to be London’s first Night Time Enterprise Zone. According to the Mayor’s press release:

The pilot, which runs from October to January, will see Waltham Forest try out a range of proposals for the high street, including:

 

•          Offering entrepreneurs low-cost and flexible business spaces to hire in the evenings

•          Establishing a new fund to help business and community groups host events after 6pm

•          Running a ‘shop local late’ campaign

•          Hosting a ‘reclaim your high street event’ with activities for all ages

•          Creating a step-by-step guide for night-time businesses to help them apply for planning and licensing approval

•          Encouraging late shopping with a new evening map and events listings

•          Encouraging local people and night-time workers to have their say on how to make Walthamstow work better for them after 6pm.”

I would be interested to hear how all this going. There is relatively little on line – and no sign yet of the “step-by-step guide for night-time businesses to help them apply for planning and licensing approval”.

The draft London Plan has policy HC6 (“supporting the night-time economy”):

HC6

• Boroughs should develop a vision for the night-time economy, supporting its growth and diversification, in particular within strategic areas of night-time activity (see Table A1.1 and Figure 7.7), building on the Mayor’s Vision for London as a 24-Hour City.

• In Development Plans, town centre strategies and planning decisions, boroughs should:

1. promote the night-time economy, where appropriate, particularly in the Central Activities Zone, strategic areas of night-time activity, town centres, and where public transport such as the Night Tube and Night Buses are available

2. improve inclusive access and safety, and make the public realm welcoming for all night-time economy users and workers

3. diversify the range of night-time activities, including extending the opening hours of existing daytime facilities such as shops, cafés, libraries, galleries and museums

4. address the cumulative impact of high concentrations of licensed premises and their impact on anti-social behaviour, noise pollution, health and wellbeing and other impacts for residents, and seek ways to diversify and manage these areas

5. ensure night-time economy venues are well-served with safe and convenient night-time transport

6. protect and support evening and night-time cultural venues such as pubs, night clubs, theatres, cinemas and music and other arts venues.

• Promoting management of the night-time economy through an integrated approach to planning and licensing, out-of-hours servicing and deliveries, safety and security, and environmental and cleansing services should be supported. Boroughs should work closely with stakeholders such as the police, local businesses, patrons, workers and residents”

But how effective is this in the short-term, given how long it will take for the policy to be reflected on borough plans/licensing policies, and the various planning policies at all levels (national, London-wide and borough) that point in potentially conflicting directions?

I would be interested to hear how joined up, or not, boroughs’ planning and licensing strategies are, in practice, at present. Operating hours for a development will often for instance be set down in planning conditions, only for a different set of hours to be set out in the eventual premises licence – or detailed operating strategies required which should be the domain of the licensing process.

The formal procedures and statutory criteria to be applied are certainly very different.

The Home Office’s guide to alcohol licensing under the Licensing Act 2003 covers the three types of licence required, namely

“ •any business or other organisation that sells or supplies alcohol on a permanent basis needs to apply for a premises licence

• anyone who plans to sell or supply alcohol or authorise the sale or supply of alcohol must apply for a personal licence

• qualifying members’ clubs (such as the Royal British Legion, working men’s clubs and rugby clubs) need to apply for a club premises certificate if they plan to sell or supply alcohol

The DCMS guide to entertainment licensing, sets out the licensing process required, since the coming into force of the Live Music Act 2012, for:

• “anyone that provides any entertainment between 11PM and 8AM;

• anyone that provides amplified live or recorded music to an audience of more than 500 people;

• anyone that provides recorded music to an audience on premises not licensed for the sale or supply of alcohol;

• anyone that puts on a performance of a play or a dance to an audience of more than 500 people, or an indoor sporting event to more than 1,000 spectators

• anyone that puts on boxing or wrestling

• anyone that screens a film to an audience

The Home Office has published guidance (April 2018) as to how licensing authorities are to discharge their functions.

There are four licensing objectives:

• The prevention of crime and disorder;

• Public safety;

• The prevention of public nuisance; and

• The protection of children from harm.

The guidance goes on to explain that “the legislation also supports a number of other key aims and purposes. These are vitally important and should be principal aims for everyone involved in licensing work. They include:

• protecting the public and local residents from crime, anti-social behaviour and noise nuisance caused by irresponsible licensed premises;

• giving the police and licensing authorities the powers they need to effectively manage and police the night-time economy and take action against those premises that are causing problems;

• recognising the important role which pubs and other licensed premises play in our local communities by minimising the regulatory burden on business, encouraging innovation and supporting responsible premises;

• providing a regulatory framework for alcohol which reflects the needs of local communities and empowers local authorities to make and enforce decisions about the most appropriate licensing strategies for their local area; and

• encouraging greater community involvement in licensing decisions and giving local residents the opportunity to have their say regarding licensing decisions that may affect them.“

Each licensing authority must publish a statement of its licensing policy at least every five years. Here, by way of example, is Camden’s statement of licensing policy 2017 – 2022, with much detail as to its expectations of operators, examples of licensing conditions for different kinds of venues and framework hours. How many of us, or our clients, get involved in this process?

Licensing applications are publicised and consultations take place with the police and other bodies. Contested applications are likely to go to a hearing before a licensing sub-committee, with appeals heard by the Magistrates’ Court.

A practitioner recently explained to me some of the differences that he sees. For instance:

⁃ a premises licence is automatically granted where there are no objections. Imagine the planning system working like that!

⁃ the grant of a premises licence is a material consideration in the determination of a planning application, but not vice versa.

⁃ there is a greater focus at premises licence hearings on evidence of actual, rather than potential, impact.

⁃ There is ongoing regulatory control as to a premises licence – not a once and for all event in the way that the grant of planning permission is.

⁃ Licensed premises form only a small part of planning officers’ workload (especially outside central London) and there can be little knowledge of the detailed ways in which the licensing regime works, often leading to a “belt and braces” approach.

Fair points?

A House of Lords Select Committee considered the operation of the 2003 Act licensing regime in an April 2017 report.

One of the Select Committee’s main areas of focus was whether the licensing and planning regimes should be better integrated:

In our call for evidence we asked: “Should licensing policy and planning policy be integrated more closely to shape local areas and address the proliferation of licensed premises? How could it be done?” An overwhelming majority of respondents criticised the current lack of coordination between licensing and planning, and thought that there should be better integration. We were given numerous examples of the absurdities caused by the separation of the systems, especially for applicants for new premises which need permission for both planning and licensing, and for whom permission for one without the other is of no use.

This example given to us by the London Borough of Hounslow is just one illustration:

“One recent problem is a restaurant who built a structure in their garden without planning permission. Planning permission was subsequently applied for and refused. There was fierce opposition to the structure from local residents and in our view the concerns of the residents were valid. The owners have also applied for a premises licence which includes the structure. Planning could not object because the regimes are supposed to be separate and the licence was subsequently granted with restrictions. We now have a situation where the planning permission is refused and the licence is granted. Residents have commented on their confusion and the premises licence holder has received an approval and a refusal for the same structure from the same local authority.”

Their conclusion was: “The whole process is confusing for our residents and we would support a change in the position so that planning permission can be considered when determining licence applications.”

The Select Committee concluded:

If, as we think, it is not only permissible but logical to look at licensing as an extension of the planning process, it would have been sensible for the Licensing Act to transfer the powers of licensing justices to the planning committees of local authorities, rather than set up a new and untried system of licensing committees with a new and different procedure, new staffing, and a new appellate process. Instead the result has been that each local authority has been able to deal with all aspects of land use through a planning committee with the single exception of licensed premises, which require a separate committee and a separate mechanism. Now that the system has been in operation for 11 years, we believe that this can be seen to have been a mistake and a missed opportunity.

We recognise that a suggestion that licensing committees should be abolished and their work amalgamated with that of planning committees is a radical one. It is not a change which should be made without first being trialled over a small but representative sample of local authorities over perhaps two years.”

The Government pretty much rejected the recommendation out of hand in its August 2017 response:

“While the Government rejects some recommendations and conclusions, there are several recommendations which are a spur to further work, particularly in respect to how the system of licensing can be made to function more effectively and the lessons that can be learned from the planning system.”

We accept that improvements could be made in some local areas and that the synergies between planning and licensing should be part of an ongoing discussion about how we can support local improvements. Instead of transferring the functions of licensing committees to planning committees, we are focusing on improving training and providing stronger guidance on how licensing hearings should be conducted.

The basic structures of the planning and licensing system are similar and our focus will be on improving how the two regimes communicate and interact at local level. There is good practice in many local areas that we will disseminate and build on, for example whether there is additional support that local residents could be given to frame and present their concerns about a licensing application to the committee effectively.”

Will this separation hold firm? Is it sensible for statements of licensing policy to be prepared separately from local plans? Is it sensible for licensing and planning matters to be dealt with by different committees and sub-committees? Is this efficient and understandable both by potential users of the systems, by local authority officers and members, and by local residents? Is there another way of reconciling the desirability of encouraging the night-time economy with legitimate local concerns as to amenity?

You tell me.

Simon Ricketts, 30 November 2019

Personal views, et cetera

Detail from Port of London, Night by Maximilien Luce, 1894

Community Benefits: Supreme Court, Resilient

Examination question: Was the Supreme Court’s ruling in Wright v Resilient right or resilient?

The problem is a practical one, and frequently arising. If an applicant promises that it will provide specific benefits for a community if it secures planning permission, and the decision maker takes into account those promises in approving the application, is any subsequent planning permission unlawful?

This was the issue for the Supreme Court in R (Wright) v Resilient Energy Severndale Ltd & Forest of Dean District Council (Supreme Court, 20 November 2019).

I covered the Court of Appeal ruling and the issues more generally in my 2 June 2018 blog post Community Benefits.

It is a difficult tight rope for developers – in promoting an unwelcome scheme they may be facing suspicion or even anger from local residents, and may be quite prepared to make funds available so as to be “seen to be doing the right thing”, to be “good neighbours” or simply reduce the extent of objection. But is this likely to lead to the risk of legal challenge?

In Resilient, an application was made for planning permission for a wind turbine.

In its application for planning permission, Resilient Severndale proposed that the wind turbine would be erected and run by a community benefit society. The application included a promise that an annual donation would be made to a local community fund, based on 4% of the society’s turnover from the operation of the turbine over its projected life of 25 years (“the community fund donation”). In deciding to grant planning permission for the development the Council expressly took into account the community fund donation. The Council imposed a condition (“condition 28”) that the development be undertaken by a community benefit society with the community fund donation as part of the scheme.”

There would also be “the opportunity for individuals in the community to invest in the project by subscribing for shares in the proposed community benefit society, with estimated returns of 7% pa”.

There is Department of Energy and Climate Change best practice guidance from October 2014 in relation to “community benefits from onshore wind developments”, encouraging arrangements of this nature, albeit on a voluntary basis.

Mr Wright, an objector to the project, challenged the grant of planning permission on the grounds that the promised community fund donation was not a material planning consideration and the Council had acted unlawfully by taking it into account.

Lord Sales’ judgment follows the position of the High Court and the Court of Appeal in quashing the permission.

He takes a conventional route through the case law. To simplify:

“… the conditions imposed must be for a planning purpose and not for any ulterior one, and … they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them …” (Viscount Dilhorne in Newbury District Council v Secretary of State, House of Lords, 1981).

“…a planning purpose is one which relates to the character of the land”. (Lord Scarman in Westminster City Council v Great Portland Estates plc (House of Lords, 1985).

Lord Sales:

A principled approach to identifying material considerations in line with the Newbury criteria is important both as a protection for landowners and as a protection for the public interest. It prevents a planning authority from extracting money or other benefits from a landowner as a condition for granting permission to develop its land, when such payment or the provision of such benefits has no sufficient connection with the proposed use of the land. It also prevents a developer from offering to make payments or provide benefits which have no sufficient connection with the proposed use of the land, as a way of buying a planning permission which it would be contrary to the public interest to grant according to the merits of the development itself.”

The question of whether something is a material consideration is a question of law. Lord Sales referred to the statement by Lord Hodge in Elsick Development Company Limited v Aberdeen City and Shire Strategic Development Planning Authority (Supreme Court, 25 October 2017): “The inclusion of a policy in the development plan, that the planning authority will seek … a planning obligation from developers [to contribute money for purposes unconnected with the use of the land], would not make relevant what otherwise would be irrelevant”. Lord Sales applied the same principle to the DECC guidance.

Lord Sales:

In the present case, the community benefits promised by Resilient Severndale did not satisfy the Newbury criteria and hence did not qualify as a material consideration within the meaning of that term in section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. Dove J and the Court of Appeal were right so to hold. The benefits were not proposed as a means of pursuing any proper planning purpose, but for the ulterior purpose of providing general benefits to the community. Moreover, they did not fairly and reasonably relate to the development for which permission was sought. Resilient Severndale required planning permission for the carrying out of “development” of the land in question, as that term is defined in section 55(1) of the 1990 Act. The community benefits to be provided by Resilient Severndale did not affect the use of the land. Instead, they were proffered as a general inducement to the Council to grant planning permission and constituted a method of seeking to buy the permission sought, in breach of the principle that planning permission cannot be bought or sold.”

Judicially, that is the final word on the issue until such time as there is a change in legislation. I hold to the practical, but not risk-free, suggestions set out in my June 2018 blog post as to how community benefits may safely be provided.

However, in my slow brain, the position remains unsatisfactory. The Supreme Court pretty much slapped down the submission by Martin Kingston QC for Resilient Energy that the meaning of “material consideration” is always being updated in line with changing government policy. Why wasn’t he right? I have read the ruling a few times and don’t understand the distinction the court draws with the case law establishing that material considerations can include, for instance a requirement to provide affordable housing or a requirement that there should be local procurement. Similarly the submissions by Richard Kimblin QC for the Secretary of State (Richard has generously made public his skeleton argument via LinkedIn) that the court might “wish to restate and clarify the meaning of “for a planning purpose” (or, “in planning terms”) in a manner which is fitting to modern planning circumstances”.

The final point to bear in mind is that of course this case concerned whether the offer of the proposed community benefits package was a “material consideration” which the decision maker could lawfully take into account (and a subsidiary issue as the lawfulness of a planning condition that sought to require that package to be delivered). If the arrangement had been secured by way of section 106 planning obligation, that would have engaged the even tougher test set out in regulation 122(a) of the Community Infrastructure Regulations 2010 – that the obligation is “necessary to make the development acceptable in planning terms” (part of Mr Kimblin’s case was that the court should bring the common law Newbury test into line with the statutory regulation 122 test).

In my previous blog post I referred to what may be at least part of the solution to this uncertainty, section 155 (still not yet switched on) of the Housing and Planning Act 2016:

Finally, the way in which all of this to be reported to committee will be tidied up as and when section 155 of the Housing and Planning Act 2016 is brought into force, in that “financial benefits information” will need to be included in officers’ reports, including “a list of any financial benefits (whether or not material to the application) which are local finance considerations or benefits of a prescribed description, and which appear to the person making the report to be likely to be obtained” by the authority or third parties within a description to be prescribed, as a result of the proposed development, together with “in relation to each listed financial benefit, a statement of the opinion of the person making the report as to whether the benefit is material to the application” as well as any other prescribed information about each listed financial benefit.”

Simon Ricketts, 23 November 2019

Personal views, et cetera

Beauty & The Beast; Wheat & The Chaff

Mike Best at Turley made the point most concisely in a tweet this week:

Two themes to this blog post:

⁃ the, partly inconsistent, changes to the planning system announced over the last week;

⁃ the difficulty of sieving out from this a lot more media chaff.

The pre Conservative party conference briefings in relation to planning reforms started last week with stories in the Sun, Mail and Telegraph. What a textbook example of choosing the media (Tory), the language (middle aged “turbo charged” concept) and the interests emphasised (home-owning families):

BUILD BOOST Tories to unveil revolution in planning rules next week to turbo-charge house building in Britain (The Sun, 27 September 2019)

Communities will get legal right to fight ugly buildings in their towns (Telegraph, 29 September 2019)

Families may be able to add two storeys to their home WITHOUT planning permission, under new government reforms (Daily Mail, 30 September 2019).

EXTRA SPACE Families could add two storeys to homes WITHOUT planning permission, under new government plans (The Sun, 30 September, updated 1 October 2019 – drawing heavily on the Mail piece above – do people get paid to write these pieces? I would do it WITHOUT payment).

Robert Jenrick’s conference speech on 30 September 2019 says very little as to the detail:

“…I will simplify the system.

I’m announcing new freedoms, including to build upward so that your home can grow as your family does too.

Reducing conditions, speeding up consent. Better funded local planning in return for efficient service. The beginning of a planning revolution.

Thirdly, no new home will be built in the country from 2025 without low carbon heating and the highest levels of energy efficiency.

We want better homes – and a better planet to match.

And fourthly, these new homes must be well-designed, safe, and rooted in places to which people can belong.

I am announcing the first national design guide and asking every community to produce their own. Empowering people to make sure that development works for them, in keeping with the local heritage and vernacular, with each new street lined with trees.

So, under the Conservatives, more environmentally-friendly homes, more beautiful homes, faster and simpler planning, and a leg up on to the property ladder.”

Motherhood is still good.

The next day we have his formal announcement:

Housing Secretary unveils green housing revolution (1 October 2019). The announcement includes:

Consultation on The Future Homes Standard: changes to Part L and Part F of the Building Regulations for new dwellings, (following on from his predecessor’s March 2019 commitment):

This consultation sets out our plans for the Future Homes Standard, including proposed options to increase the energy efficiency requirements for new homes in 2020. The Future Homes Standard will require new build homes to be future-proofed with low carbon heating and world-leading levels of energy efficiency; it will be introduced by 2025.

This document is the first stage of a two-part consultation about proposed changes to the Building Regulations. It also covers the wider impacts of Part L for new homes, including changes to Part F (ventilation), its associated Approved Document guidance, airtightness and improving as-built performance of the constructed home.”

Update as to the proposed Accelerated Planning green paper:

The government has also confirmed proposals to speed up the planning system, including the potential for more fees to be refunded if councils take too long to decide on specific planning applications.”

“Local residents will no longer have to contend with a complicated and outdated planning system, but a more user-friendly approach designed to simply the process. Small developers will similarly benefit from the simplification of guidance, with the introduction of a new tiered planning system.

Application fees will also be reviewed to ensure council planning departments are properly resourced, providing more qualified planners to process applications for new homes and other proposals.”

“The accelerated planning green paper will be published in November 2019. Government has also set out its ambition to reduce planning conditions by a third, and will take forward proposals to allow homes to be built above existing properties as well as seeking views on demolishing old commercial buildings for new housing, revitalising high streets in the process.”

So what can we expect?

Further reform of the application fees system

Greater use of technology in the application process

reduce planning conditions by a third”? Search me. Sensibly framed conditions are a crucial mechanism both in ensuring timely approval of applications without requiring unnecessary details at a premature stage and in ensuring that what is approved is what is built.

That there will be further work on the very difficult and not at all new ideas, supported by successive ministers, to expand permitted development rights “to allow homes to be built above existing properties” and “demolishing old commercial buildings for new housing”. I have covered the problems in various blog posts, for instance Permitted Development: Painting By Numbers Versus Painting The Sistine Chapel? (8 December 2018) and The Up Right (13 October 2018).

What is quite interesting is the additional detail in one of the Mail’s stories, although who knows whether any of it has any factual basis:

The right will be afforded first to purpose-built blocks of flats, but will eventually be rolled out to all detached properties.” [This right was originally framed around the creation of additional homes, not about home extensions. What possible justification is there for a massive extension in domestic permitted development rights?]

Ministers will also try to accelerate the conversion of disused and unsightly commercial properties into residential homes.” [except that we know that the criteria will not include whether the commercial properties are indeed “disused” and “unsightly” – see equivalent terminology before the existing office to residential permitted right was introduced]

Under a ‘permission in principle’ system, developers will not have to get detailed planning permission before the bulldozers can move in.“ [Interesting use of terminology – do we think that the changes might in fact be introduced by way of the “permission in principle” procedure rather than by amendments to the General Permitted Development Order? Even so, I don’t see that the problems would be reduced – how to arrive at a light-touch procedure which properly addresses legitimate and inevitable concerns as to for instance design, townscape, daylight and sunlight, overlooking and section 106 requirements such as affordable housing]

Announced publication of the MHCLG National Design Guide: Planning Practice Guidance for Beautiful, Enduring & Successful Places and update to the planning practice guide Design: process and tools.

The purpose of the national design guide is to address “the question of how we recognise well- designed places, by outlining and illustrating the Government’s priorities for well-designed places in the form of ten characteristics.

It is based on national planning policy, practice guidance and objectives for good design as set out in the National Planning Policy Framework. Specific, detailed and measurable criteria for good design are most appropriately set out at the local level. They may take the form of local authority design guides, or design guidance or design codes prepared by applicants to accompany planning applications.

This is how the ten characteristics are introduced, before being addressed in turn:

Well-designed places have individual characteristics which work together to create its physical Character. The ten characteristics help to nurture and sustain a sense of Community. They work to positively address environmental issues affecting Climate. They all contribute towards the cross-cutting themes for good design set out in the National Planning Policy Framework.”

Part 3 of the national design guide, a “national model design guide”, is “to follow”.

In the meantime of course the Building Better, Building Beautiful Commission is working on its final report, anticipated in December 2019, following on from its interim recommendations that I covered in my 27 July 2019 blog post New Cabinet, Poor Doors, No Windows.

Christopher Hope in the Telegraph should also know better than describe planning practice guidance (that’s all it is, guidance, not even policy) as a “legal right”.

The inevitable challenge, obvious but so far unacknowledged by Government, is how to reconcile this earnest work that seeks to improve the quality of our places, with its continued attachment to deregulation via expanded permitted development rights.

Is it any wonder the public are confused and sceptical as to the planning system operates? They are continually being misled.

Simon Ricketts, 5 October 2019

Personal views, et cetera

What Really Is The Meaning Of Lambeth?

We held a dinner party for clients this week and after a certain amount of wine and gossip the conversation turned to a deeper question.

What really is the meaning of Lambeth?

The Supreme Court judgment’s judgment in London Borough of Lambeth v Secretary of State (Supreme Court, 3 July 2019) had been handed down that day.

Who hasn’t felt the same helplessness? You’re faced with a planning permission which does not say what the local planning authority plainly meant it to say. Do you go by what the document says? Or is its literal meaning changed by reference to what the authority intended?

Spoiler alert: Lambeth doesn’t provide the answer. It is specific to its facts. However it does provide another pointer as to the courts’ likely reaction to these sorts of issus. Following the approach of the Supreme Court in Trump International Golf Club Limited v Scottish Ministers (Supreme Court, 16 December 2015), Lord Carnwath indicates:

In summary, whatever the legal character of the document in question, the starting-point – and usually the end-point – is to find “the natural and ordinary meaning” of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.”

The facts of Lambeth are well set out in the Supreme Court’s press summary. A section 73 permission was issued which recited in the description of development the precise change that was authorised to be made to a condition on a previous 2010 permission restricting the types of goods that could be sold from a Homebase store but the local planning authority, whilst reimposing some conditions that were on the 2010 (including a condition imposing a three years’ implementation deadline) neglected to reimpose the condition restricting what types of goods could be sold and neglected to reimpose to other conditions (in relation to refuse and recycling and in relation to management of deliveries and servicing).

I summarised Lang J’s first instance ruling in my 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions. She restricted herself to a formalistic interpretation of the permission. There was no condition restricting the types of goods to be sold. The description of development on the permission does not operate as a condition. There was therefore no operative restriction – there was nothing to prevent the shop being turned into, for instance, a food superstore. Some mistake on the part of the authority. Some windfall for the owner of the store, Aberdeen Asset Management. I speculated that the ruling might be overturned by the Court of Appeal but in fact they took the same line, in a judgment by Lewison LJ (Court of Appeal, 20 April 2018).

However, the Supreme Court has allowed the authority’s appeal. It found that the very nature of a section 73 permission is that it grants permission subject to a condition as varied. The document was “clear and unambiguous”, with the description of development setting out the “original wording” of the condition to be varied and the “proposed wording”. ““Proposed wording” in this context must be read as a description of the form of condition proposed in the application and “hereby” approved. In other words, the obvious, and indeed to my mind the only natural, interpretation of those parts of the document is that the Council was approving what was applied for: that is, the variation of one condition from the original wording to the proposed wording, in effect substituting one for the other. There is certainly nothing to indicate an intention to discharge the condition altogether, or in particular to remove the restriction on sale of other than non-food goods.

This reasoning will apply to other situations where the nature of the amendment proposed to a condition is set out precisely in the description of development. Where there is not that precision, clearly there will still be room for argument.

What about the two conditions which were not reimposed? I find this part of the court’s reasoning difficult, or at least potentially opening up further areas of uncertainty:

It will always be a matter of construction whether a later permission on the same piece of land is compatible with the continued effect of the earlier permissions…In this case, following implementation of the 2010 permission, the conditions would in principle remain binding unless and until discharged by performance or further grant. Conditions 2 and 3 were expressed to remain operative during continuation of the use so permitted. The 2014 permission did not in terms authorise non-compliance with those conditions, nor, it seems, did it contain anything inconsistent with their continued operation. Accordingly, they would remain valid and binding – not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation.”

So a potentially difficult exercise is required on a site with successive permissions (including section 73 permissions) – of working out which conditions from previous permissions continue to apply, even though the planning permission itself may have been superseded.

Two last points:

⁃ What of the reimposed time limit condition? People sometimes get themselves in an intellectual knot in relation to section 73 permissions granted after the physical development authorised by the previous permission has been completed. Does the section 73 permission need to be implemented in some way? Can an authority in fact grant a section 73 permission in these circumstances. Thankfully, the Supreme Court didn’t have any concerns along these lines. It agreed with the Court of Appeal that the condition was invalid, in circumstances where the development had already been carried out.

⁃ another worry sometimes – was the purported permission such a nonsense that it was of no legal effect despite no-one having challenged its validity in the six weeks’ JR time limit? Again, the Supreme Court showed no worries on that score:

If section 73 gave no power to grant a permission in the form described, the logical consequence would be that there was no valid grant at all, not that there was a valid grant free from the proposed condition. The validity of the grant might perhaps have been subject to a timely challenge by an interested third party or even the Council itself. That not having been done, there is no issue now as to the validity of the grant as such. All parties are agreed that there was a valid permission for something. That being the common position before the court, the document must be taken as it is.”

On the facts I do support the outcome. The lower courts’ approach seemed to fly in the face of common sense – of the meaning that any reader of the document (other than a planning lawyer perhaps!) would have given to it. But I do recognise the difficulties that can arise, as identified in a post by Zack Simons.

The tension between literal versus “following the formalities regardless of the words” interpretation will always be there. We have all seen so many variants of permissions that do not quite say what they are meant to say, and who can blame planning officers for sometimes not getting it quite right.

For instance, despite the provision in section 73(5) of the 1990 Act, preventing section 73 permissions from varying the time limits that were imposed on the original permission for implementation or reserved matters submissions, the restriction is overlooked from time to time and fresh time limits are set. Once free from the risk of JR, can the new time limits be relied upon? On the approach in Lambeth, my provisional view is that I don’t see why not. The natural and ordinary meaning of the permission is clear and once free from legal challenge surely there is a valid permission. Even where a permission is issued in a flawed state without legal authority, as in the Thornton Hotel case (see my 18 May 2019 blog post Slow Claim Coming: Limiting JRs https://simonicity.com/2019/05/18/slow-claim-coming-limiting-jrs/ ), the courts will apply strict criteria before the validity of a permission to be challenged after the usual deadline.

Two more planning law cases are heading to the Supreme Court. Whilst permission to appeal was refused in the air quality case, Shirley, we can look forward to the Supreme Court justices applying their minds on 22 and 23 July to the vexed area of community benefits in Resilient Energy and, on a date to be fixed, to the question of what is a listed building in Dill.

Aren’t I the life and soul of the dinner party?

Simon Ricketts, 4 July 2019

Personal views, et cetera

It’s a sign.

A Helpful Case On The Scope Of Section 73

I was pleased to read Finney v Welsh Ministers (Sir Wyn Williams, 15 November 2018), or the Rhydcwmerau wind turbines case, as I hope we’ll call it for ease.

Sir Wyn Williams provides the answer to a question I raised in my 3 March 2018 blog post, A Change Is Gonna Come (But Should It Really Need A Fresh Planning Permission?): can you use a section 73 application when the changes to conditions that you are seeking also entail a change to the description of development on the previous permission?

The implied answer from Singh J in R (Wet Finishing Works Limited) v Taunton Deane Borough Council (20 June 2017) was yes but the point was not specifically addressed in his judgment. Sir Wyn Williams has to deal with the point head-on as it was one of the two grounds of challenge.

In the Rhydcwmerau wind turbines case there was a planning permission granted where the description of the development that was thereby approved was as follows:

Installation and 25 year operation of two wind turbines, with a tip height of up to 100m, and associated infrastructure including turbine foundations, new and upgraded tracks, crane hardstandings, substation, upgraded site entrance and temporary construction compound upon a site situated to the north of the village of Rhydcwmerau, Carmarthenshire

The description of development appears simply to have been incorporated in the permission by reference to the description of development on the application form, but I don’t think anything turns on that.

The permission was subject to a number of conditions. Condition 2 provided that the development was to be carried out in accordance with a number of approved plans and documents which were specified. One such was a “figure” described as “3.1 Typical Wind Turbine Elevation 1:500 @ A3“. It is common ground that this showed a wind turbine with a tip height of 100m.”

The promoter of the project then made an application under section 73 of the Town and Country Planning Act 1990 to substitute plan 3.1 with a plan showing a wind turbine with a tip height of 125m. The local planning authority treated the application as valid but refused it. An inspector allowed the promoter’s appeal.

The claimant challenged the inspector’s decision:

“It is argued that the Inspector should not have allowed the appeal because she had no power under section 73 to amend a condition pursuant to which a prior planning permission had been granted which had the effect of directly contradicting the description of the development permitted in that earlier permission. Further or alternatively, the Claimant asserts that the Inspector failed to consider at all (as she should have done in accordance with established legal principles) whether the application before her constituted a “fundamental alteration” of the prior permission“.

On the first ground of challenge, Sir Wyn Williams held that “the only proper interpretation of the judgment in Wet Finishing Works, is that a variation pursuant to section 73 can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission which preceded the section 73 application.” The section 73 permission was not unlawful simply because necessarily the permission entailed a change to the original description of development which had referred to a tip height of 100m rather than 125m.

He also referred to the test formulated by Sullivan J in R v Coventry City Council, ex p. Arrowcroft Group plc (2001): “the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.”

Applying that test to the decision letter:

Although I am not entirely convinced that the Inspector had in mind that it was necessary for her to consider in terms whether the variation sought would create a fundamental alteration to the original proposal I am prepared to conclude, on balance, that she was aware of that obligation and considered it.”

But even if she had not, it was highly likely that the decision would have been the same. “I have no doubt that had the Inspector considered whether the variation to the condition would have constituted a fundamental alteration to the original proposal she would have concluded that it did not. The whole tenor of her decision letter leads inexorably, in my judgment, to that conclusion as a careful reading of it makes abundantly clear.”

So, a pretty clear signpost for us all to follow – particularly a number of local planning authorities which presently take a plainly too restrictive approach to the use of section 73.

Simon Ricketts, 24 November 2018

Personal views, et cetera

A Change Is Gonna Come (But Should It Really Need A Fresh Planning Permission?)

All change on Monday, with sight of the draft revised NPPF, but this blog post focuses on a more fundamental issue: how unnecessarily hard it can be to make changes to a scheme that has planning permission without having to go back to the very beginning again.
Why do schemes change post-permission in the first place? It’s unsurprising when you consider:
– the time that it takes to obtain planning permission for a large project, during which market demand or other circumstances may have changed;
– the extent to which relatively detailed parameters need to be fixed at such an early stage even for an outline application;

– the opportunities that often arise to increase densities or make other improvements once a house-builder or end-user takes over the reins from the initial applicant (for the avoidance of doubt strategic land promoters are a good and necessary thing – often no-one else is going to fulfil that upfront, high risk/high cost, role at the outset of long-term projects beyond a certain scale). 

These scheme changes are often to be welcomed and yet sometimes it seems as if the planning system conspires to prevent them. See Philip Barnes’ blog post ‘A simple way of increasing housing delivery‘ (11 January 2017) for an excellent articulation of the practical frustrations from a house-builder’s perspective. 
Of course there are two mechanisms available:
– section 73 of the Town and Country Planning Act 1990 enables “applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.”
– section 96A of the 1990 Act enables a local planning authority to approve a “change to any planning permission relating to land in their area if they are satisfied that the change is not material.”

But there are limitations to both procedures, some in the legislation itself (for instance section 73 applications cannot be used to extend the life of a planning permission and section 96A applications can only be made “by or on behalf of a person with an interest in the land to which the planning permission relates“), some by way of case law and some (the most problematic, because so uncertain) by reason of the breadth of discretion that local planning authorities have in determining whether the particular changes sought fall within the ambit of either procedure – not assisted at all by vague and unnecessarily restrictive advice in the current Planning Practice Guidance. 
The detailed position is set out in Town partner Clare Fielding’s 2015 paper to the Oxford Joint Planning Law Conference From concept to construction: the law and practice of amending planning permissions. It is disappointing that we are still in as uncertain a place as we were then. 

The main problem is the lack of any firm rules as to the extent of changes to a planning permission which can be secured under section 73. The leading case remains Coventry City Council ex p Arrowcroft Group plc (Sullivan J, 21 July 2000), where there is the often quoted passage from Sullivan J:
“It is true that the outcome of a successful application under section 73 is a fresh planning permission, but in deciding whether or not to grant that fresh planning permission the local authority ‘… shall consider only the question of the conditions subject to which planning permission should be granted’…Thus the Council is able to impose different conditions upon a new planning permission, but only if they are conditions which the Council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.” 
So the guiding principle is what is a “fundamental” alteration? “Fundamental” is a big thing as far as lawyers are concerned – think from the law of contract the principles of “fundamental mistake”, “fundamental breach” and “fundamental lack of consideration – it’s not just millennial adjective-inflation along the lines of fabulous, awesome and great!
And yet successive Governments have since 2009 described the procedure as the making of “minor material amendments” (hence for those of us in the trade the inevitable acronym of “MMA” for section 73 applications – lose that please folks!). The current Planning Practice Guidance says this:
There is no statutory definition of a ‘minor material amendment’ but it is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved.”
The roots of this are in the (now cancelled) document published first in 2009 and then updated in 2010, Greater Flexibility For Planning Permissions – a proportionate and timely response at the time to the financial crisis and its implications for house building and economic development more generally. Aside from re-introducing for a temporary period the ability to extend the duration of planning permissions, the document gave guidance on the use of the then new section 96A procedure for non-material amendments (introduced by the Planning Act 2008) and sought to “streamline and clarify” the section 73 procedure in the light of the Killian-Pretty review which had recommended that “the Government should take steps to allow a more proportionate approach to minor material changes in development proposals after permission has been granted” and some further work carried out by WYG, in which WYG had come up with that problematic wording:
A minor material amendment is one whose scale and nature results in a development which is not substantially different from the one which has been approved
The purpose of the guidance and the thrust of the Killian-Pretty and WYG work was not in any way to cut back on the use of section 73 but, by incorporating in guidance those references to “minor material amendment” and “not substantially different” the Government introduced confusion. “Minor material amendment” may be a handy phrase but a more accurate one, reflecting the law, would be:
less than fundamental amendment, whether material or not“. 
As a result of the confusion we have a patchwork situation where many authorities have been comfortable approving significant changes by way of section 73 (for instance Barnet Council at Brent Cross Cricklewood) but others have been running scared or seeking legal advice which is ultimately of little assistance – the authority must consider whether the changes are a “fundamental alteration of the proposal put forward in the original application”. That is a matter of planning judgment, albeit in my view “fundamental” means “fundamental”!
There has been surprisingly little case law, although two cases from last year are helpful:
R (Vue Entertainment Limited) v City of York Council (Collins J, 18 January 2017) where the court upheld a section 73 permission relation to a mixed use development, where the changes to the permitted scheme included increasing the size of a proposed cinema from 12 screens with a capacity of 2,000 people to 13 screens with a capacity of 2,400. 
– R (Wet Finishing Works Limited) v Taunton Deane Borough Council (Singh J, 20 July 2017) is also interesting – not just because a challenge to a approved change from 84 to 90 dwellings failed (how could that have been fundamental in anyone’s mind?) but because the 84 dwellings figure was included in the approved description of development and that was still not a bar on the change being approved via section 73. An area of repeated debate is whether a section 73 permission can achieve amendments to conditions which are inconsistent with the approved description of development and often a section 96A application is made to amend the description of development, replacing any reference in the description to numbers of, for instance, dwellings, with a condition to the same effect, so that that condition can then be amended by section 73. You begin to see the unnecessary bureaucracy, legalism (caused by fear of judicial review) and scope for uncertainty. 
So why not simply make a fresh application for planning permission rather than seeking to proceed under section 73? 
First and most importantly, inevitably there is less risk of being drawn back into a prolonged consideration of the merits of the proposal itself. This is of course another area that is not black and white. Whilst section 73(2) states that “[o]n such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted“, inevitably if policies have changed since the existing permission was approved the decision maker may seek to use the section 73 application as a means of applying them, asserting that the section 73 permission should only be granted with those additional or tightened conditions or obligations.
Secondly, rather than starting afresh with another full set of application documentation, it is likely to be acceptable simply to supplement the existing material where necessary, reducing significantly the scale of the application package for all concerned. Where the existing permission was supported by a viability appraisal that process will need to be updated (in London there is guidance on this in the affordable housing and viability SPG and policy H6 paragraphs G to J of the draft London Plan). A deed of variation to the existing section 106 agreement is more likely to be accepted, rather than requiring a fresh section 106 agreement. 
Thirdly, a section 73 application may be the only way of avoiding being hit for CIL on top of existing section 106 obligations which were intended to contribute to the same infrastructure requirements, where the local planning authority has adopted a CIL charging schedule since the original planning permission was issued. 
Fourthly, a flat £234 application fee rather than a fee of up to £150,000 for an application for outline planning permission. Maybe that £234 figure is too light, particularly where more than one condition will be changing from the original permission, but there is no basis on an amended scheme for paying the same fee as first time round. 
Of course, care is needed by the authority in drafting the section 73 permission (see my 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions).

Why are there also arguments, in the context of section 96A, as to whether amendments are “material” or not? Well, section 96A is an extremely useful procedure, in that there a 28 day determination timescale (rather than the normal application timescale that applies for section 73 applications), there are no consultation requirements and it does not result in a fresh planning permission, meaning that there is no need to vary the existing section 106 agreement. Of course, again what is material (ie material in planning terms) is for the local planning authority to determine and as long as its determination on the issue is reasoned, any potential challenger to an approval faces an uphill struggle. Conversely, the applicant has no right of appeal to the Secretary of State. The authority is in a position, of (to be cynical) much power or (to be more realistic) being unclear as to what approach it should take – which again is a reason to consider whether clearer, more positive, guidance in the PPG is required rather than this:
There is no statutory definition of ‘non-material’. This is because it will be dependent on the context of the overall scheme – an amendment that is non-material in one context may be material in another.”
In unveiling the draft revised NPPF (and potentially draft revised PPG alongside it) on Monday, will the prime minister take the opportunity to clarify for us that “non-material” means “non-material” and that “fundamental” does indeed mean “fundamental”? Probably not, she will focus on grander matters I’m sure, but the section 96A and section 73 procedures are two of the dull, forgotten but necessary, nuts and bolts of the process that have the most tendency to jam. Jam today, no homes tomorrow. 
Simon Ricketts, 3 March 2018
Personal views, et cetera

Restricting Pre-Commencement Conditions: It Will Be A Start

A few words on planning law before something more important. 

This week it was good to see MHCLG’s consultation document Improving the use of planning conditions: consultation on draft regulations (30 January 2018). Unnecessary pre-commencement conditions and the jams caused to project programmes are a pain. However, I’m not sure that this remedy is the panacea (I’m trying to resist the temptation to coin the term “planacea”, oh..). 

 What is proposed is that any decision maker cannot grant planning permission containing a pre-commencement condition unless the applicant has either agreed to the terms of the condition or hasn’t responded within ten working days.

 That is positive and should reflect good practice, certainly on bigger schemes where lists of draft conditions are shared by officers for discussion with the applicant prior to permission being issued. However, as usual, if you delve into the legal detail, I’m not sure that the mechanism will be as broad in its scope as you might think, due to the definition of “pre-commencement condition” in the parent legislation. Section 100ZA(8) Town and Country Planning Act 1990, introduced by section 14(1) of the Neighbourhood Planning Act 2017, defines “pre-commencement condition” as:

 “a condition imposed on a grant of planning permission (other than a grant of outline planning permission within the meaning of section 92) which must be complied with—

 (a) before any building or other operation comprised in the development is begun, or

 (b) where the development consists of a material change in the use of any buildings or other land, before the change of use is begun.”

 This rules out use of the procedure on outline planning permissions! That certainly isn’t identified in the consultation paper. I can see why the procedure shouldn’t apply to the standard condition setting out the matters for which reserved matters approval is required but for all other pre-commencement conditions the position is the same as for full planning permissions.

The definition also has the effect of restricting the process to “pure” pre-commencement conditions. The requirement would not apply to a condition that prevented any development from proceeding save for defined initial works which might be very minor, but for which discharge might still be critical to the overall development programme, or to conditions that might need to be discharged before particular phases of development could proceed. “Pure” pre-commencement conditions are indeed a particular evil for developers as they will often be in the way of the planning permission being kept alive by the carrying out of an initial material operation (and may indeed lead to difficult CIL liability issues – set out in a good 5 January 2018 blog post CIL – false starts can be punishing by Roy Pinnock) but they are no more problematic for the timely carrying out of the whole development than other conditions.

What if an applicant resists a requested pre-commencement condition? Of course it is to be hoped that a compromise will be found. But if not, ultimately the decision maker’s only option may be refusal of the application.

What if a decision maker fails to follow the procedure and issues a permission with an unwelcome pre-commencement condition? In theory of course the applicant might consider challenging the permission by way of judicial review but surely this would be a sledgehammer to crack a nut as opposed to a section 96A or 73 application to amend the condition.
So that was all I had to say on a short consultation paper.
But what really has been on my mind this week has been the sad news of the death of retired Court of Appeal judge Sir Henry Brooke. As a lawyer and more specifically in the last few years as a legal blogger he was an inspirational figure to me. I didn’t know him personally but felt as if I did. His humanity, intellectual generosity, and wisdom – along with a healthy and undimmed preparedness to put technological advances and social media to practical use – was evident in all he blogged and tweeted. For instance, if you’ve benefited from the use of technology in court, or clicked into Bailii case transcripts? Thank Sir Henry. In the time I’ve saved you by this short post, do dip into his “musings, memories and miscellanea” blog, within which you will find this transcript of his 2008 Peter Boydell memorial lecture on The role of Mediation in Planning and Environmental Disputes. My condolences to Sir Henry’s family.

 Simon Ricketts, 2 February 2018

 Personal views, et cetera