Choiceplace Properties Limited v Secretary of State (Dove J, 27 April 2021) amounts to a short and sharp lesson for applicants and their advisers: make sure your application plans are accurate, not just in relation to your development proposals but as to the relationship of the proposals to the existing streetscape or landscape, particularly if a condition of the permission requires that development is to be carried out in accordance with those (scaled) plans.
Planning permission had been granted for a small block of flats to be built in north London. Condition 1 required the development to be carried out in accordance with a set of approved plans. The set included drawing “P.04”, street elevations”.
This is an extract from the plan:
To quote from Dove J:
“Not long after the permission had been granted the claimant mobilised in order to implement the development. In December 2018, the claimant was advised by the architect that it had retained to prepare detailed construction drawings that the street scene drawing P.04 was inaccurate. In essence, the drawing, which was one of those listed in condition 1 along with the other drawings forming part of the pack accompanying the application, was in error in purporting to show that the proposed development would have a ridge height lower than the neighbouring building 159 Holden Road, when in fact the ridge height of the proposed building would be higher. Whereas the street scene in drawing P.04 showed the buildings stepping down in height from 159 via the proposal to 157, where the ridge height of 157 Holden Road was shown to be lower than the application site proposed building, in fact the proposed building was taller than both of them.”
I suspect that it is quite unusual that an error such as this is spotted pre-construction. The stakes are even higher for all concerned if the discrepancy is spotted at a later stage.
The local planning authority, London Borough of Barnet, took the position that the permitted development could not be lawfully implemented. The parties waved opposing counsel’s opinions at each other. The applicant, Choiceplace, made an application for a certificate of lawfulness of proposed use or development under section 192 of the Town and Country Planning Act 1990 to seek to make good its position. The application was refused by Barnet and the subsequent appeal was dismissed by an inspector.
“In my view the starting point is that when interpreting a condition it should be asked what a reasonable reader would understand the words to mean. In this case it clear to me the development should be built in accordance with the plans. At its simplest this is impossible because to build it in accordance with P.03 and P.06 the building will not look like the building shown in P.04. In other words the plans are inconsistent. The condition doesn’t require the development to be in accord with some of the plans, or parts of the plans, but with the approved plans, and I think it reasonable to imply the word “all” there, again on the basis that is what an ordinary reading of the condition implies.
Starting from this point, it could be argued that the P.04 is merely illustrative, the buildings either side could change shape or size or even be demolished, but that seems to me to be rather missing the point. Firstly, P.04 is clearly not illustrative, it is not a simple sketch purporting to show a view, but is an allegedly scale drawing with the heights of the neighbour at No 159 drawn on to specifically compare to the proposal. Secondly, whether the neighbours can change is irrelevant. The drawing shows the proposed building in a relationship to the neighbours at the time the application was made regardless of any theoretical future changes. That relationship should have been replicable on site on the date the permission was granted and it was not.
If we delve further into the extrinsic evidence to see if there is anything else to suggest that reliance on P.04 would be excessive or in some way unreasonable then it becomes clear, for the reasons given in the Council’s opinion, that the streetscene drawing was important in the determination of the application, which was only allowed by the committee by a narrow margin. Furthermore it is only by detailed analysis of various spot heights across several of the drawings that the errors are revealed. The Council should be able to rely on accurately scaled drawings, especially when the drawing in question is important to determining the acceptability of the proposal.”
Dove J agreed with the inspector:
“In my judgment, there is no reason why the depicted heights of the existing buildings should be regarded as illustrative or somehow excluded from the requirements of condition 1 on the planning consent. As was pointed out during the course of argument, a relationship between a proposed development and the existing height of either adjacent structures or indeed adjacent ground levels is a matter to be accurately depicted on plans accompanying planning permission for good reason. It is at the very least to be assumed to be an accurate depiction, in the absence of any specific text on the drawing indicating that elements of it are not to scale. The Inspector was correct in pointing out that the drawing showed a relationship between the proposed development and surrounding buildings which should have been capable of replication on the site at the time permission was granted and it was not. In short, the development is not capable of being implemented in accordance with the approved drawings because it is not capable of being implemented in a manner which replicates the street elevations both longitudinally and axially which are purported to be shown to scale on drawing P.04. To reach that conclusion does not involve any suggestion that the planning application granted might be capable of controlling the scale or appearance of adjacent dwellings beyond the application on site; it is simply a reflection of the inaccuracy in the plans leading to an inability to construct a development which accords with that which is depicted upon them.”
A simple case but with some potentially far-reaching conclusions for applicants:
1. Of course, be careful that all drawings, plans and written descriptions of your development proposal are accurate, are internally consistent and describe accurately the surrounding environment – particularly where by condition you are required to build in accordance with what has been set out. If there need to be caveats as to accuracy, include them.
2. To what extent has someone, at some remove from the detail, audited whether this is in fact the case and confirmed it, such that you can rely on that confirmation if an issue subsequently arises? It’s not the local planning authority’s job.
3. Always check that you will be able to comply with plans and other details that are set out in planning conditions. The condition here was all encompassing: “The development hereby permitted shall be carried out in accordance with the following approved plans: Site Location Plan; Drawing no. P.01 Rev C; Drawing no. P.02 Rev C; Drawing no. P.03 Rev B; Drawing no. P.04; Drawing no. P.05; Drawing no. P.06 Rev A; Landscaping Scheme Drawing no. TH/A3/1497/LS; Arboricultural Impact Assessment & Method Statement by Trevor Heaps Arboricultural Consultancy Ltd Ref: TH 1497 dated 11th December 2017 including drawing no. TH/A3/1497/TPP; Sustainability Statement by Henry Planning; Planning statement by Henry Planning; Document titled “Holden Road, London, N12 8SP – Part M4(2) Category 2 Accessible and Adaptable Dwellings”. I am always wary of such an approach. For instance, why were documents listed that were not even “plans” and precisely which elements of those statements were to be incorporated into the condition?
Simon Ricketts, 7 May 2021
Personal views, et cetera
NB Next Tuesday’s Queen’s Speech should be interesting, in terms of whether we will see any detail released as to the contents of the proposed Planning Bill and the Government’s proposed way forward, and what else is on the Government’s agenda impacting upon our little world. No surprise that this will be our main clubhouse #PlanningLawUnplanned topic for 6pm that evening. I hope you can join us – if you have an iPhone, here is an invitation.
There is so much that planning legislation does not address and where principles have had to evolve from case law. One of those is the extent to which development pursuant to one planning permission can be carried out without jeopardising the ability of a developer to carry out work pursuant to another planning permission which was granted over the same area of land.
The principle established in Pilkington v Secretary of State for the Environment  1 WLR 1527 has been essential to the modern planning system. In that case, Lord Widgery CJ set down the test as follows:
“One looks first of all to see the full scope of that which is being done or can be done pursuant to the permission which has been implemented. One then looks at the development which was permitted in the second permission, now sought to be implemented, and one asks oneself whether it is possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which has been implemented.”
The case turned on a simple situation of two planning permissions that were granted for the construction of a bungalow on the same plot of land, one positioning the bungalow at the centre of the site and the other in one corner.
The principle is now routinely applied to much more complex situations, for instance where outline planning permission has been granted for a large multi-phase development, a “drop-in” planning permission is often secured for a different form of development on part of the site and permission secured under section 73 for any necessary amendments to conditions attached to the main permission so as to ensure that if development is carried on part of the site under the drop-in permission rather than the main permission, there will be no breach of any conditions attached to the main permission. Any other procedural route, for instance requiring planning permission to be applied for afresh for the whole outline planning permission area would be unnecessarily unwieldy.
The same principle is also relevant when reliance is sought on what I might term “antique” planning permissions, planning permissions which may be hugely valuable if still determined to be live, because they were granted in a more liberal policy climate and when development was not so constrained in terms of planning conditions and obligations. Whilst Parliament legislated for a comprehensive review and modernising of old minerals permissions, it has not done this in relation to permissions for other forms of development.
Last week, in Hillside Parks Limited v Snowdonia National Park Authority (Court of Appeal, 3 November 2020), in a judgment by Singh LJ, the Court of Appeal considered the question of whether one such antique planning permission was still “live”, a 1967 permission for the development of 401 dwellings on 29 acres of land at Balkan Hill, Aberdyfi, granted by Merioneth County Council, as was. The development, governed by a master plan which has been repeatedly varied, has still only been partly built out. In 1987 there was litigation as to whether the permission could still be relied upon and Drake J held that it could. As summarised by the Court of Appeal in the latest proceedings, Drake J held as follows:
“First, the full planning permission of 10 January 1967 was lawfully granted. Secondly, the 1967 permission was a “full permission which could be implemented in its entirety without the need to obtain any further planning permission or planning approval of details”. Thirdly, “the development permitted by the January 1967 Permission has begun; and that it may lawfully be completed at any time in the future”. The fourth declaration concerned the satisfaction of the condition attached to the 1967 permission.”
Snowdonia National Park Authority became the local planning authority in 1996.
“Departures from the Master Plan were granted by the Authority on:
(1) 27 June 1996 for a single dwelling house as a variation to the 1967 Permission.
(2) 20 June 1997 for “two terraces forming: 1 attached dwelling, six apartment units and 8 garages with apartments over” as a variation to the 1967 permission.
(3) 18 September 2000 for a two-storey detached dwelling house and garage on Plot 5 of the Site.
(4) 24 August 2004 for 5 detached houses and 5 garages as a variation to the 1967 permission.
(5) 4 March 2005 for the erection of a 2-storey dwelling and detached garage on Plot 17 on the Site.
(6) 25 August 2005 for the erection of a detached dwelling at Plot 3 of “Phase 1” on the Site.
(7) 20 May 2009 for the erection of 3 pairs of dwellings.
(8) 5 January 2011 for 1 dwelling at Plot 3 on the Site.”
The facts are frustratingly unclear from the judgment, as to the precise nature of these permissions, and indeed the extent to which they were in fact variations of the masterplan approved by way of the 1967 permission.
“On 23 May 2017, the Authority contacted the Appellant, stating that, in its view, the 1967 permission could no longer be implemented because the developments carried out in accordance with the later planning permissions rendered it impossible to implement the original Master Plan. The Authority required that all works at the Site should be stopped until the planning situation had been regularised.”
Hillside sought a declaration from the High Court that the authority was bound by the ruling of Drake J back in 1987, that the permission could still be relied upon and that the “planning permission may be carried on to completion, save insofar as development has been or is carried out pursuant to subsequent planning permissions granted for alternative residential development”. The claim was rejected by HHJ Keyser QC at first instance. He held that the 1987 order was not wrongly made but that “the development which has occurred since 1987 now renders the development granted by the 1967 permission a physical impossibility and that future development pursuant to that permission would no longer be lawful.”
The Court of Appeal did not consider that there had been anything inappropriate about the way that the judge had dealt with Drake J’s ruling and did not consider that the authority should be prevented from raising the “Pilkington” issue even though its predecessor had not raised it before Drake J. In weighing up whether to allow that issue to be raised, the court recognised that “there are undoubtedly important private interests, including the commercial interests of the Appellant. However, there are also important public interests at stake, including the public interest in not permitting development which would be inappropriate in a National Park.”
Singh LJ’s next comments are of interest, and perhaps of some concern, if they are to be interpreted in any way as casting doubt on effectiveness of the modern “drop-in permission plus section 73 permission” process I referred to earlier:
“Furthermore, I would accept the submission made by Mr Lewis on behalf of the Respondent that there have been significant legal developments since the decision of Drake J in 1987. In particular, the decision of the House of Lords in Sage has placed greater emphasis on the need for a planning permission to be construed as a whole. It has now become clearer than it was before 2003 that a planning permission needs to be implemented in full. A “holistic approach” is required.
In Sage the main opinion was given by Lord Hobhouse of Woodborough, although there was also a concurring opinion by Lord Hope of Craighead. Mr Green emphasised that, on the facts of that case, what Lord Hobhouse was considering in terms was a planning permission for “a single operation”: see e.g. para. 23. It was in that context, submits Mr Green, that the House of Lords held that a planning permission must be implemented “fully” and that a “holistic approach” must be taken. Mr Lewis observed that, at para. 6, Lord Hope used the word “totality of the operations” (plural rather than singular). In my view, the important point of principle which arises cannot be determined according to semantic differences between the different opinions in the House of Lords. I would accept Mr Lewis’s fundamental submission that the decision in Sage made it clearer than it had previously been that a planning permission should be construed “holistically.”
As a matter of principle, I would endorse the approach taken by Hickinbottom J in Singh v Secretary of State for Communities and Local Government and Another  EWHC 1621 (Admin), in particular at paras. 19-20, where Sage was cited. Hickinbottom J was of the view that, reflecting the holistic structure of the planning regime, for a development to be lawful it must be carried out “fully in accordance with any final permission under which it is done” (emphasis in original). He continued:
“That means that if a development for which permission has been granted cannot be completed because of the impact of other operations under another permission, that subsequent development as a whole will be unlawful.”
At the hearing before us there was an interesting debate about a point which ultimately this Court does not need to resolve on this appeal. That issue is whether, in the circumstances envisaged by Hickinbottom J, all the development which has already taken place, apparently in accordance with the first grant of permission, is rendered unlawful simply by virtue of the fact that subsequent operations take place pursuant to another permission which is inconsistent with the first. The phrase used by Hickinbottom J (“subsequent development”) might suggest that it is only the later development which would fall to be regarded as unlawful. Mr Lewis contended that as a matter of principle it must be the whole of the development, including any development that has already taken place. That would have the consequence that there could be enforcement action, and potentially criminal liability, in relation to the development that has already taken place, even though it was at the time apparently in accordance with a valid planning permission. Mr Lewis submitted that in such circumstances it would be unlikely that enforcement action would be taken in practice. Even if that is right, that would mean that whether or not enforcement action is taken would be a matter of discretion rather than law. These are potentially important questions on which we did not receive full argument because they do not need to be decided on this appeal. I would therefore prefer to express no view on them.”
This concept of the planning permission having to be built out as a whole surely needs to be unpacked a little bit more. Sage v Secretary of State (House of Lords, 10 April 2003) was a case about the part-construction of a dwelling. Care needs to be taken in extending any concept that the development needs to be “implemented in full” and is to be regarded as authorising a “single operation” to modern multi-phase permissions. There is no specific requirement that such a development, once started, must be completed – if the local planning authority has a concern in that respect it can serve a completion notice (although of course that procedure is not without its difficulties).
Singh LJ rejects Hillside’s reliance on another old case, F. Lucas & Sons Ltd v Dorking and Horley Rural District Council (1966) 17 P & CR 111, as part of its argument that development pursuant to the 1967 permission on parts of the site was not inconsistent with development on other parts of the site pursuant to other permissions, but was he right to? As summarised by Singh LJ:
“Lucas was decided by Winn J in 1964. In that case, in 1952, planning permission was granted to develop a plot of land by the erection of 28 houses in a cul-de-sac layout. Later the plaintiffs applied for permission to develop the same plot by building six detached houses, each on a plot fronting the main road. Permission for this later development was granted in 1957 and two houses were built in accordance with it. Later, however, the plaintiffs proposed to proceed in reliance on the earlier permission from 1952 by building the cul-de-sac and the 14 houses on the southern side of it. That land was still undeveloped at that time. The plaintiffs sought a declaration that the earlier permission was still effective and entitled them to carry out the proposed development on that part of the site where it could still take place. Winn J concluded that the 1952 permission was not to be regarded in law as a permission to develop the plot as a whole but as a permission for any of the development comprised within it. Accordingly, it did authorise the “partial” development proposed by the plaintiffs.”
Surely this was exactly the effect of Hillside’s permission, and certainly how I would categorise modern planning permissions for multi-phase development. As long as conditions are not breached and there is adequate assessment of the cumulative effects, what is the problem?
Singh LJ says this about Lucas:
“…Lucas was a highly exceptional case. It has never been approved by an appellate court. It has never been followed or applied, so far as counsel have been able to show us, by any court since. Furthermore, it was described as being an exceptional case by Lord Widgery CJ (a judge with immense experience in the field of planning law) in Pilkington. Both this Court and the House of Lords have had the opportunity in the many decades since Lucas to consider whether it should be regarded as setting out a general principle or not.
In my view, it would not be appropriate for this Court now to overrule Lucas. In order to do so we would have to be satisfied that it was wrongly decided on its particular facts. It is not possible to be satisfied of that, not least because we do not have the advantage of seeing the precise terms of the planning permission which was granted in that case. It suffices to say that the case should be regarded as having been decided on its own facts.
As Hickinbottom J observed in the case of Singh, at para. 25, it is conceivable that, on its proper construction, a particular planning permission does indeed grant permission for the development to take place in a series of independent acts, each of which is separately permitted by it. I would merely add that, in my respectful view, that is unlikely to be the correct construction of a typical modern planning permission for the development of a large estate such as a housing estate. Typically there would be not only many different residential units to be constructed in accordance with that scheme, there may well be other requirements concerning highways, landscaping, possibly even employment or educational uses, which are all stipulated as being an integral part of the overall scheme which is being permitted. I doubt very much in those circumstances whether a developer could lawfully “pick and choose” different parts of the development to be implemented.”
Lawyers: what do you make of all this? Further thought is required but I am concerned that this judgment may have introduced further uncertainty into our system, which is complicated enough thank you!
The new guidance is simply explanatory and I haven’t spotted anything new as to, for instance, the circumstances in which local planning authorities should or should not restrict the operation of the Orders by way of condition.
In the meantime, there remains some Parliamentary focus on the nature of the changes.
The House of Lords Secondary Legislation Scrutiny Committee published a critical report on 10 September 2020:
“These instruments make substantial and wide-ranging changes to planning legislation. According to the Ministry of Housing, Communities and Local Government, the aim is to encourage and speed up the delivery of housing and to support the economic recovery after the pandemic, especially in relation to England’s high streets. The changes are de-regulatory and concerns have been raised that they could lead to the construction of low-quality housing, an increased concentration of fast food restaurants with an impact on the health of local residents, and reduce the ability of local authorities to shape the character of their high streets. These are issues which the House may wish to explore, including in the context of the Government’s plans for further, more fundamental reform of the local planning system which have been published for consultation. While the Committee notes the Government’s intention to support the economic recovery from the pandemic, the plans for further reform do raise the question whether it would have been more appropriate to take forward the significant and far-reaching changes made by these instruments in a future planning bill, enabling Parliament to scrutinise the changes more fully.”
are probably the three words I most associate with the planning system in England, since you asked.
The main part of this post is a commentary by special guest and fellow Town partner Duncan Field on the Government’s Planning for the future white paper, published on 6 August 2020.
But before we get to that, some initial comments from me on timescales.
The consultation period on the white paper ends on 29 October 2020.
The aspiration in the document is that (subject to time extensions for recent plans) new local plans should be in place by the end of this Parliament, so by Spring 2024. Given that those local plans will take up to 30 months to be put in place under the new system proposed, the necessary primary legislation will need to have been passed and in force, with any necessary accompanying Regulations and guidance, by Autumn 2021.
By way of proxy for legislative timescales, the less ambitious Housing and Planning Act 2016 and Neighbourhood Planning Act 2017 each took around seven months to pass through the necessary Parliamentary stages, which would mean introducing a Bill by the beginning of 2021. One perhaps has to look back to the Localism Act 2011 for planning legislation of equivalent complexity. That took eleven months from soup to nuts.
Something is going to have to give – either there is going to be rushed consideration of these proposals, which still need significant refinement, or that “end of this Parliament” aspiration is going to have to be reconsidered before long.
But in any event, things can be expected to move quickly.
The timescales in that document for the four sets of proposals within it are as follows:
· changes to the standard method for assessing local housing need: “Following the outcome of this consultation, the Government will update the planning practice guidance with the revised standard method for assessing local housing need.”
· securing of First Homes through developer contributions in the short term until the transition to a new system: “We intend to begin by making planning policy changes, to ensure that clear expectations are set. However, to ensure that First Homes are delivered, nationwide, on a consistent basis, we are keeping under consideration the option to strengthen the policy through primary legislation at a future date. We also intend to introduce an exemption from the Community Infrastructure Levy for First Homes, to enable delivery prior to wider developer contribution reform. This would require changes to regulations. Lastly, we are also considering significant reforms to the system of developer contributions. We will ensure that First Homes willcontinue to be delivered under a reformed approach”
· supporting small and medium-sized builders by temporarily lifting the small sites threshold below which developers do not need to contribute to affordable housing: “Following the consultation, a decision will be taken on whether to proceed with this approach. If it is taken forward, this could be through the introduction of a Written Ministerial Statement in the Autumn.”
· extending the current Permission in Principle to major development: “Following this consultation, if we introduce Permission in Principle by application for major development, we aim to introduce amending regulations this Autumn, with the regulations expected to come into force by the end of the calendar year. Changes to the fee structure would require separate changes to the Planning Fees Regulations.”
The white paper is in my view a considered document and less radical than might have been expected, although certainly ambitious in its breadth. Proposals spin out of it, one after the other, often just in a sentence or two. There are of course areas where there needs to be further thought or explanation. For me, there are two big ones in particular:
⁃ the way in which housing numbers are to be set by the Government for individual authorities and how to resolve the inevitable tension between a swifter examination process and a process that allows proposals in a plan (and the basis for proposals not being in the plan) to be properly tested (particularly where the plan is going to be the equivalent of a series of outline planning permissions for its growth areas);
⁃ how this new infrastructure levy is really going to work and how obligations are going to be addressed that presently are dealt with by way of section 106 agreement, in particular the delivery of affordable housing.
There will also have to be a clear working through of the respective powers and responsibilities across the system, as between government, strategic authorities, local planning authorities and neighbourhoods.
I must say that I found Chris Katkowski QC’s explanations in the latest Have We Got Planning News For You episode really helpful in bringing the proposals, and the thinking behind them, to life. And, boring to say, there is no substitute for reading the actual document.
Planning for the Future begins with some fairly combative language, referring to “our outdated and ineffective planning system” and drawing comparisons with a patched up building which needs to be torn down.
In truth the Government’s proposals do not go quite as far as that and in practice, to continue with the same analogy, we might end up with a better and more sustainable outcome if we were to save the parts of the “patched up building” which have architectural merit. The biggest problem with the current system is not that it is all inherently bad but that it is not sufficiently resourced; it is a pity that planning reforms by successive Governments have never really grappled with that central issue. The good news on this occasion is that the new system will be accompanied by a comprehensive skills and resources strategy for local authorities and key participants in the system; let’s hope the Government delivers on that.
Further on in the document there are some powerful words from the Secretary of State which bring home just how important a time this is for the planning system and what it can deliver. It is hard to disagree with any of this:
The outbreak of COVID-19 has affected the economic and social lives of the entire nation. With so many people spending more time at home than ever before, we have come to know our homes, gardens and local parks more intimately. For some this has been a welcome opportunity to spend more time in the place they call home with the people they love. For others – those in small, substandard homes, those unable to walk to distant shops or parks, those struggling to pay their rent, or indeed for those who do not have a home of their own at all – this has been a moment where longstanding issues in our development and planning system have come to the fore.
Onto the objectives for reform, which can be summarised as follows:
• Reduce complexity and with it, uncertainty and delay.
• In doing so, deliver a more competitive market with a greater diversity of developers.
• Remove the discretionary nature of individual development management decisions and replace it with a rule-based system of development control.
• In doing so, reduce planning risk and the cost of capital for development.
• Reduce the time it takes to produce a local plan.
• Simplify assessments of housing need, viability and environmental impacts.
• Restore public trust and encourage more widespread public participation.
• Get better at unlocking growth and opportunity, encouraging beautiful new places, supporting town and city centres and revitalising existing buildings as well as new development.
• Harness digital technology.
Linked to this is a long list of desired outcomes including the user experience, home ownership, access to infrastructure, economic growth and innovation.
We then come to the main proposals which the Government intends to bring forward:
1. Local plans
a. These will be simplified so that they only identify land for development, the sites that should be protected and the development that can take place. There would be three categories of land:
i. Growth – sites suitable for comprehensive development which, once allocated, will have outline approval for development.
ii. Renewal – sites where smaller scale development is appropriate, which would benefit from a statutory presumption in favour of development once allocated.
iii. Protected – sites with environmental or cultural characteristics where development should be subject to more stringent controls.
An alternative approach might be a more binary system (growth and renewal with permission in principle versus protected areas) or more scope for the existing development management approach in areas other than those allocated for “growth”.
b. Plans should become digital, visual and map-based, interactive and data rich, using a standardised approach to support open access.
c. Local plans (and neighbourhood plans) will be more focused on giving clear area-specific requirements for land that is allocated for growth and renewal including design codes; generic development management policies and duplication of national policy and guidance needs to be avoided.
d. Plans should be subject to a single test of achieving sustainable development instead of the current tests for soundness and the duty to co-operate. There would be no Sustainability Appraisal and instead this would be replaced by a simplified process for assessing the environmental impact of plans.
e. Local plans would meet housing need by reference to a standard method for establishing housing requirements developed and set at a national level; this would mean distributing the national housebuilding target of 300,000 new homes annually, and one million homes by the end of the Parliament, taking into account local factors including constraints, opportunities and affordability. The Housing Delivery Test would stay.
f. Local plans would have to be brought forward by reference to a fixed 30 month statutory timescale with six stages and individual timings for each stage.
g. Local planning authorities would be under a duty to review their plans every 5 years; powers of intervention would remain such as the issuing of directions and preparation of a plan in consultation with local people.
h. Neighbourhood Plans to be retained but with more focus on form of development to reflect the proposals for Local Plans.
This is a refreshingly clear vision of what local plans might become and a digitalised system would be transformative for the user experience and public engagement. However, there are some big questions around how to encourage strategic planning across local authority boundaries for the bigger than local issues (the Government is open to suggestions), how in practice the “sustainable development” test would work and, linked to that, how robust the new environmental assessment process will be.
Equally as important, what will the effect of these promised changes be on current local plans? Without further incentives or assurances around their continuing effect in any transitional arrangements as we switch over to the new system, there must be a real concern they will be halted in their tracks.
2. Development Management
a. As indicated above, growth areas allocated in a local plan would have outline permission for the principle of development; details would be agreed and full planning permission achieved through a new reserved matters process, a local development order or possibly, on bigger sites, via a development consent order.
b. Renewal areas would benefit from a new statutory presumption in favour of development and would benefit from either a new automatic consenting route where specified forms of development meet design and other prior approval requirements, a faster planning application process or a local or neighbourhood development order.
c. Proposals which do not conform to the local plan in renewal and growth areas could still come forward, exceptionally, through a planning application process.
d. In protected areas, proposals will have to be brought forward via a planning application (subject to any permitted development rights or local development orders) and will be judged against the NPPF.
e. Generally, the development management process will be based on a more streamlined end-to-end process with firm deadlines for determination through a mix of:
ii. Data access;
iii. Shorter and standardised applications with reduced or limited supporting material;
iv. A standardised approach to technical information, conditions and developer contributions; and
v. Delegation of detailed planning decisions to planning officers where the principle of development has been established.
f. The Government will build in incentives for prompt determination of applications by local planning authorities such as deemed approval of some applications or refunds of application fees.
g. The process will still be subject to call-in powers and appeals but the Government expects the volume of call-ins and appeals to reduce over time.
h. There will be encouragement for faster build out by making provision in local plans/design codes for a variety of development types by different builders (picking up on the conclusions of the Letwin Review).
This vision for the new development management system feels less clear: permission in principle and outline planning permission are used interchangeably in places as a consequence of land being allocated for growth; however, over and above this, there appears to be provision for a “full” planning permission through a new reserved matters system or local development orders or even development consent orders. Would this not remove a lot of the benefit of allocating land for growth? There is also a myriad of possible ways in which land allocated for renewal might gain consent and, in the meantime, we retain the current planning application process as well. If the Government is not careful it might add to the complexity of development management.
Certainly, we can all get on board with the much-needed streamlining of the development management process from end to end, with more standardisation, reducing the quantity of application documents and increased use of digital technology. However, resourcing this change will be key to its success.
3. Building better, building beautiful and sustainable places
Design and place-making is still high up on the Government’s political agenda. Proposals in this space include the following:
a. A National Model Design Code to be published in the Autumn which will work alongside the National Design Guide and the Manual for Streets; together these are expected to have a bearing on design of new communities and to guide decisions on development. (This will be an early entrant into the current planning system.)
b. Local guides and codes are to be prepared wherever possible to reflect local character but need to have input from the local community before they are given any weight in the planning process.
c. A new expert body will be set up to help local authorities make use of design guidance and codes, as well as performing a wider monitoring and challenge role for the sector.
d. The much-heralded “fast-track” for beauty will be achieved through:
i. The NPPF – which will have provision for schemes that comply with local design guides and codes to be approved quickly;
ii. Legislation to require that sites in growth areas should have a masterplan and site-specific code as a condition of the permission in principle which is granted through allocation in the local plan; and
iii. Widening permitted development rights through the use of “pattern books” for different building types.
e. The NPPF will require targeted consideration of measures to support climate change mitigation and adaptation. (In our view, policy has been playing catch-up on climate change for some time – this is long overdue and should be welcomed.)
f. There will be a quicker and simpler framework for assessing environmental impacts, stepping away from the current frameworks such as Strategic Environmental Assessment, Sustainability Appraisal and Environmental Impact Assessment. The key requirements for the new framework will be:
i. early consideration;
ii. clear and easy to understand; and
iii. avoidance of duplication.
A further consultation on this is expected in the Autumn.
g. The Government intends to review and update the planning framework for listed buildings and conservation areas, to ensure their significance is conserved while allowing, where appropriate, sympathetic changes to support their continued use and address climate change.
h. Improvements to the energy efficiency standards for buildings will be brought forward to help meet the 2050 net zero commitment.
The intention here is clear and consistent with the recent focus of the Government on design and beauty in the planning system. The area with the most loaded questions is the promised framework for assessing environmental impact; in our view, there is clear scope to reduce the voluminous and highly technical nature of the current framework but now is not the time to water it down in terms of its ambit and its protective function. We will have to wait until the Autumn to find out more.
There are radical proposals for the funding of infrastructure:
a. Replace S106 obligations and the current version of Community Infrastructure Levy with a new Infrastructure Levy calculated as a fixed proportion of the development value above a threshold, with a mandatory, nationally-set rate or rates (potentially variable by area).
b. This new levy will be charged on the final value of a development (or an assessed sales value where the development is not sold, e.g. build to rent) by reference to the rate in force when planning permission is granted. This would have to be paid before occupation.
c. Local authorities would be able to borrow against Infrastructure Levy revenues so that they could forward fund infrastructure.
d. The London Mayoral Community Infrastructure Levy and similar strategic Community Infrastructure Levies in combined authorities could be retained.
e. The Infrastructure Levy Could be extended to capture changes of use without additional floor area and through permitted development.
f. The new levy would be extended to fund affordable housing. Allowance would be made for in-kind delivery on-site, which could be made mandatory where an authority has a requirement, a capability to deliver on site and wishes to do so. In those circumstances local authorities would be able to specify the form and tenure of the on-site provision. The Government anticipates that there would need to be a considered policy approach to the risk of imbalance between the value of the agreed in-kind delivery and the fluctuating nature of the levy liability, contingent as it will be on the development value.
g. Local authorities could be given more freedom on how they spend the levy.
There is a lot of detail to be worked through here. Setting the new levy at a level which does not deter development (and indeed land supply through the price paid by developers) will be key and a difficult issue to judge.
The Government will also need to be scrupulous in ensuring that affordable housing continues to come forward using levy funds and still comes forward as part of mixed and balanced communities.
The removal of the blunt and inflexible tool that we have come to love or hate in the form of CIL is welcome in our view and with it the removal of a considerable amount of confusing and time-consuming red tape. For practical reasons – not least delivering site-specific solutions for development – we are not sure we are witnessing the end of S106 obligations or an equivalent just yet but they will undoubtedly be slimmed down.
The consultation document ends with a few final proposals and thoughts from Government on the delivery of a new planning system:
a. As a first step there is a parallel consultation on changes to the current system including extension of Permission in Principle (by application to major development), the standard method for assessing local housing need, First Homes and supporting SME builders by temporarily lifting the small sites threshold below which developers do not need to contribute to affordable housing. More here: https://www.gov.uk/government/consultations/changes-to-the-current-planning-system
b. The Government sees a potential delivery role for development corporations.
c. The reforms are considered likely to reduce judicial review risk.
d. The need for resources and skills is recognised and will be addressed through a comprehensive strategy. In principle, the Government’s view is that the cost of operating the new planning system should be principally funded by the beneficiaries of planning gain – landowners and developers – rather than the national or local taxpayer. Funding may also be achieved through application fees and potentially the new infrastructure levy or- to a limited extent – general taxation.
e. The Government intends to strengthen the powers for local planning authorities to enforce against breach of planning control and provide incentives for enforcement action to be taken.
To end where this overview began, resources are key and a comprehensive strategy to ensure the sufficiency of funding and skills will be very welcome, as long as it does what it says on the tin. This will be vital to the success of the new system.
We know now what the Government wants to achieve. It is up to all of us in the sector to help them make it work and if parts of the system are worthy of retention for their “architectural” merit, to explain why that is, with reference to the Government’s objectives.
This post focuses on another specific, urgent, issue. I assume that there is a large measure of consensus that deadlines for commencement of development under planning permissions (and equivalent deadlines other related consents) should be “on pause” for at least the duration of this present lockdown and its eventual gradual unwinding. Otherwise either applicants are going to need to embark on expensive lengthy and time-consuming (for everyone) applications for a fresh planning permission in due course (with a further hiatus on any construction in the meantime) or contractors are going to be out there doing unnecessary implementation works just to keep the existing planning permission alive.
(Some of you at this point will take the opportunity to have a swipe at applicants who have left it until near the deadline before implementing a permission or before submitting applications reserved matters approval, but these are old arguments which I have addressed before).
The current law
My 16 July blog post Unpacking UseItOrLoseIt considered the law on time limited planning permissions and the amendment that was made to section 73 by way of the Planning and Compulsory Purchase Act 2004 so as to prevent section 73 being used to extend the life of planning permissions.
In the wake of the 2008 global financial crisis, a procedure was allowed for, by way of the Town and Country Planning (General Development Procedure) (Amendment No. 3) (England) Order 2009, which sidestepped section 73 and provided for a simplified procedure for grant of a “replacement planning permission” for planning applications made for a planning permission to replace an extant permission, granted on or before 1st October 2009, for development which has not yet begun, with a new planning permission subject to a new time limit. For such applications, the requirement to provide a design and access statement was disapplied, consultation requirements were modified and plans and drawings did not have to be provided. Guidance was provided in the Government’s Greater Flexibility for Planning Permissions document.
“7.6 In 2009, the Department became aware of a reduction in the implementation rate of major schemes that already have planning permission. If large numbers of permissions are not implemented and subsequently lapse, this could delay economic recovery. Developers would have to make new planning applications for those schemes, which could lead to delay and additional costs. Furthermore, local planning authorities could find themselves dealing with a sudden upsurge in applications as the economy moves out of recession.
7.7 Following calls from the Local Government Association, the Confederation of British Industry and the British Property Federation, SI 2009/2261 amended the GDPO to introduce a new power to allow the time limits for implementation of existing planning permissions to be extended. The amendment enabled existing planning permissions to be replaced before expiring, in order to allow a longer period for implementation (although the previous planning permission is not revoked, rather a new permission granted subject to a new time limit). For this new kind of application, the requirement for design and access statements was removed, and the requirements for consultation were modified. SI 2009/2262 made associated amendments to the Listed Buildings Regulations to allow the provisions to apply to linked applications for listed building and conservation area consents.”
The procedure was extended for a final year in 2012 (the impact assessment is interesting to look back to and compare with current circumstances).
The legislative options
It seems to me that there are two basic approaches which might be taken:
The “automatic” extension option
The Government could look to achieve an automatic extension, for a defined period in relation to all planning permissions – in relation to the deadline for implementation and possibly also any deadline for submission of reserved matters applications in relation to outline planning permissions – with the extension potentially only available where the deadline is going to expire within a defined period of time.
Surely, such a change would require primary legislation, to amend the operation of sections 91 and 92 of the Town and Country Planning Act 1990. The Coronavirus Act would have been a useful vehicle but possibly moved too quickly through its legislative changes for this potential measure to jump aboard in the way that was achieved with the provisions enabling local authorities to hold meetings remotely.
Such an approach has in fact been taken in Scotland, as explained in the Scottish Government’s Chief Planner letter dated 3 April 2020:
“Some planning permissions will be due to expire over the coming weeks and months and, for various reasons caused by current restrictions, there will be difficulties in commencing development or carrying out necessary processes, such as the submission of applications for approval of matters specified in conditions, before deadlines pass.
The duration of planning permission is set out in primary legislation. Recognising that activity is likely to slow considerably over coming months, we included provisions in the Coronavirus (Scotland) Bill which will extend the duration of all planning permissions which are due to expire during an ‘emergency period’ of 6 months, so that the relevant permission or time limit shall not lapse for a period of 12 months from the date those provisions come into force.”
“The coronavirus outbreak will affect the ability of both planning authorities and applicants to deal with planning permissions which are due to expire. Planning permissions can broadly be separated into two categories: full planning permission and planning permission in principle.
When planning permission is granted applicants have a period of 3 years to commence development (authorities can provide for a longer period). If development is not commenced then that permission lapses and a new planning application is required. Planning permission in principle also requires the approval of conditions before development can proceed.
It is expected that the current restrictions on movement and potential continuation of social distancing and self-isolation will mean that applicants may be unable to satisfy the conditions attached to their planning permission or to commence development due to the shutdown of non- essential construction.
The aim is to ensure that where a full planning permission or planning permission in principle would expire then that permission should not lapse for a period of 12 months from the date on which the provisions come into force, irrespective of that development having not been commenced. The permission would only lapse if development has not commenced before the end of the 12-month period.
In relation to applications for approval of conditions, if the last date for making an application for an approval is within the emergency period then the time limit for making such an application is to the end of the 12-month period.
Necessity and urgency
It is important that when the current restrictions on movement are relaxed, developers are able to pick up where they left off, continuing with construction and having a pipeline of sites ready to move onto once current sites are completed. It is also important to reduce the burden on planning authorities who may otherwise be inundated with new applications to obtain a new permission.
The expiry of planning permission is an issue which has been raised by industry representatives who had expressed concerns about the ability of applicants to submit required information, apply to amend a condition to in effect get a new permission or commence development. Engagement at official level has also been undertaken with Heads of Planning, Scotland, Society of Local Authority Chief Executives, Society of Local Authority Lawyers and Administrators and the Convention of Scottish Local Authorities. Those consulted understood and appreciated the reasons for taking this action and were supportive of this intervention being time restricted.
No alternative to primary legislation is possible, and no powers exist which would allow these changes to be made in this way.”
I can only think of one way of achieving an automatic extension without primary legislation. What about creating a new permitted development right to carry out development within x months of the expiry of planning permission for development, subject to the expiry being before a specified date? There may be issues in relation to EIA development but is this a runner? Standard conditions applicable to any such PD right would need to secure the continued effect of any conditions attached to the original planning permission and somehow ensure that any existing section 106 planning obligations continue to apply.
The “enabling individual extensions” option
The alternative approach that the Government could take would be to find a way of enabling individual applications to be made that can be dealt with by authorities more simply than a fresh application for planning permission (which for a major application is a six or even seven figure sum investment, appalling as that figure is). In my view that would be less helpful than the Scotland-style automatic extension – this is not like the 2008 global economic crisis – all development is currently affected. A “pause” on time limits across the board is surely cleaner and would avoid a mass of individual applications. However, the “enabling individual extensions” option may be a quicker fix.
The “enabling individual extensions” options might include:
⁃ reintroducing the “replacement planning permissions” route exactly as per the 2009 statutory instrument, backed by appropriate guidance
⁃ (I appreciate this may jar but bear with me, we need to be creative) use of section 96A, given that there is no express prohibition (as there is with section 73) on the use of the non-material amendments procedure to vary time limits on planning permissions. Plainly, in normal circumstances, the extension of a time limit on a planning permission would be material, but could the Government, with proper justification, issue guidance that in the current exceptional circumstances, subject to consideration by the relevant local planning authority of individual circumstances when an application is made, it considers that in principle an extension of time for a period not exceeding, say, the current lockdown period, could be regarded as “non material”? I have re-read R (Fulford Parish Council) v City of York Council (Court of Appeal, 30 July 2019) and don’t immediately see that such an approach would be inconsistent with the approach that the Court of Appeal took to section 96A in that case.
⁃ (More cumbersome but surely legally achievable) the use of local planning authorities’ powers in section 97 of the Town and Country Planning Act 1990 to modify planning permissions where they consider it expedient.
What have I missed? I’m hoping that, like its predecessor, this blog post will very soon be past its sell by date.
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?
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).
“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.
“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.”
Tear up that blog post. The ruling now been reversed by the Court of Appeal in a very short judgment (5 November 2019).
The point was a narrow one: can section 73 of the Town and Country Planning Act 1990 be used to obtain planning permission not just with conditions differing from those on the original permission but with a changed description of development?
However, the Court of Appeal, in a straight-forward judgment by Lindblom LJ has found that the answer to the question is in fact “no”.
“The question is one of statutory interpretation. Section 73 (1) is on its face limited to permission for the development of land “without complying with conditions” subject to which a previous planning permission has been granted. In other words the purpose of such an application is to avoid committing a breach of planning control of the second type referred to in section 171A. As circular 19/86 explained, its purpose is to give the developer “relief” against one or more conditions. On receipt of such an application section 73 (2) says that the planning authority must “consider only the question of conditions”. It must not, therefore, consider the description of the development to which the conditions are attached.”
In Vue Entertainment, Collins J had referred to another High Court ruling, R (Arrowcroft) v Coventry City Council (Sullivan J, 2001) as doing no more than making “the clear point that it is not open to the council to vary conditions if the variation means that the grant (and one has therefore to look at the precise terms of the grant) are themselves varied.”
By “the grant”, Lewison LJ understood Collins J to be referring to the “operative part” of the permission ie the description of the development itself.
So we now have a clear position: any section 73 application is constrained by the scope of the description of development on the existing planning permission.
Of course all is not lost – if a fresh application for planning permission is not to be made, it is back to the faff of having first having to amend the description of development by section 96A, if the change to the description of development in itself can be shown to be non material, before then making the section 73 application.
In response to submissions as to what might be the implications of his ruling, Lewison LJ said this:
“Nor do I consider that the predicament for developers is as dire as Mr Hardy suggested. If a proposed change to permitted development is not a material one, then section 96A provides an available route. If, on the other hand, the proposed change is a material one, I do not see the objection to a fresh application being required.”
Subject to the proposed change being within the scope of the description of development, the ruling does not change the principle that the relevant test for whether section 73 is available is whether the proposed change is less than a “fundamental alteration” to the approved scheme. The test set out by Sullivan J in Arrowcroft still applies:
“”… 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.”
Lewison LJ’s ruling is likely to have practical implications for a number of current section 73 processes and will immediately influence the way that applicants may wish the description of development on a permission to be framed, so as not unnecessarily to constrain the potential for subsequent section 73 applications.
It may be legally correct, on the restricted wording of section 73 itself, and it may not be the end of the world, but what a shame now to lose the additional procedural flexibility that Sir Wyn Williams’ first instance judgment provided.
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):
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.”
“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]
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.
Where the General Permitted Development Order 2015 provides that you have deemed planning permission for a category of development within Schedule 2 of the Order, subject to your applying to the local planning authority for a determination as to whether its prior approval is required as to specified matters, and the Order sets out a specific deadline for that determination (failing which development may proceed), can you agree an extended deadline with the local planning authority?
When you look at Schedule 2, Part 3 (changes of use) for instance, paragraph W specifies as follows:
“(11) The development must not begin before the occurrence of one of the following –
(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or
(c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.”
There is no hint of any power for the parties to agree an extended time period.
But then you look at Article 7 of the Order:
“7. Prior approval applications: time periods for decision
Where, in relation to development permitted by any Class in Schedule 2 which is expressed to be subject to prior approval, an application has been made to a local planning authority for such approval or a determination as to whether such approval is required, the decision in relation to the application must be made by the authority –
(a) within the period specified in the relevant provision of Schedule 2,
(b) where no period is specified, within a period of 8 weeks beginning with the day immediately following that on which the application is received by the authority, or
(c) within such longer period as may be agreed by the applicant and the authority in writing.”
Does this enable that 56 day period to be extended? Most commentators have previously assumed so. My experience is that agreed extensions are not uncommon. After all, a developer would often rather allow the authority further time to determine an application (perhaps on the basis of further information being provided to assist in its consideration of the issues) rather than to face a 56th day refusal and the need to re-apply and/or appeal.
In Mr Ockleton’s view (Mr Ockleton is Vice President of the Upper Tribunal but regularly sits as a High Court judge), article 7 (c) only enables extension of time in relation to categories of prior approval application which fall under article 7 (b) ie where Schedule 2 does not specify a deadline and therefore article (b) imposes a deadline of eight weeks.
He goes on to say this:
“There is of course a certain artificiality in the discussion: I was not shown any provision of the GPDO to which article 7(b) applies and it follows from the view that I have reached that if there is (at present) none, there is also no provision to which article 7(c) applies. But that does not impact on my conclusion. Where a period is specified, the deemed grant of planning permission takes place at the end of that period, so the authority’s decision must be before that. If no period be specified, the deemed grant takes place only when a decision is made, and there is therefore scope for agreeing a time within which the authority has to make a decision. Article 7(c) is to be read as an alternative to article 7(b) only, not to article 7 (a).”
(Obviously I took that as a challenge to go rooting through the Order. For a prior approval procedure in schedule 2 without a specified deadline for the prior approval process you need to go 200 or so pages into the document to classes B and following classes in Part 17 (“mining and minerals operations”)).
I am not at all sure that Parliament intended article 7 (c) to have such limited effect. I would suggest that MHCLG review the implications as a matter of urgency. Particularly if we are going to see further or amended permitted development processes in due course with additional matters for prior approval, are the current determination deadlines appropriate if they can’t be extended by agreement?
Furthermore, what are the implications for existing applications? The claimant in the Warren Farm case had agreed an extended period of determination for its prior approval application in connection with a proposal to use an agricultural building as a dwelling. The application was subsequently refused but it successfully challenged the refusal on the basis that in fact the purported agreement to extend time had not been legally effective and that there was therefore an automatic deemed approval at the end of the 56 days.
There may be other decisions in the same circumstances, subject to the usual judicial review deadline.
However, isn’t there legal uncertainty as to what is the case in any event, if there was a purported agreement to extend the time period and then an (as it now transpires) unlawful refusal? Even if the issue of that refusal is not (or cannot now be) challenged by way of judicial review, does (in the case for instance of changes of use) paragraph W (11) (c) allow the development to be carried out in any event because there has been “the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused”. The 56 days expired without any refusal and is that sufficient, even if there was subsequently a refusal? Open question – what do you think?
I think we shall be seeing further litigation. In any case, the wording of the Order needs to be clarified.
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.