Community Benefits: Supreme Court, Resilient

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lord Sales:

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

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

Lord Sales:

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

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

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

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

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

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

Simon Ricketts, 23 November 2019

Personal views, et cetera

Law Altered On Altering Permissions: Court Of Appeal, Finney

Well I certainly tempted fate with the heading to my blog post A Helpful Case On The Scope Of Section 73 last November, which dealt with Sir Wyn Williams’ first instance ruling in Finney v Welsh Ministers.

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?

Sir Wyn Williams found that the answer was “yes”, following a previous ruling of the High Court in R (Wet Finishing Works) Limited v Taunton Deane Borough Council (Singh J, 20 July 2017).

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”.

Lewison LJ:

“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.”

Lewison LJ states that Wet Finishing Works was wrongly decided, the judge on that case not having been referred to another High Court judgment, R (Vue Entertainment) v City of York Council (Collins J, 18 January 2017).

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.

Simon Ricketts, 5 November 2019

Personal views, et cetera

Beauty & The Beast; Wheat & The Chaff

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

Two themes to this blog post:

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

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

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

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

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

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

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

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

“…I will simplify the system.

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

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

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

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

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

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

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

Motherhood is still good.

The next day we have his formal announcement:

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

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

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

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

Update as to the proposed Accelerated Planning green paper:

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

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

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

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

So what can we expect?

Further reform of the application fees system

Greater use of technology in the application process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Simon Ricketts, 5 October 2019

Personal views, et cetera

Prior Approval Deadlines: An Important Judgment

Your planning law question for today is:

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.

It’s a binary question. The High Court in R (Warren Farm (Wokingham) Limited v Wokingham Borough Council (Mr C M G Ockelton, 31 July 2019) has ruled that article 7 (c) does not enable specific deadlines in schedule 2 to be extended.

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.

Simon Ricketts, 24 August 2019

Personal views, et cetera

What Really Is The Meaning Of Lambeth?

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

What really is the meaning of Lambeth?

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

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

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

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

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

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

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

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

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

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

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

Two last points:

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

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

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

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

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

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

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

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

Simon Ricketts, 4 July 2019

Personal views, et cetera

It’s a sign.

Accelerated Planning

James Brokenshire’s 13 March 2019 written statement, made alongside the Chancellor’s Spring Statement, includes some important, if sometimes vague, pointers as to how the Government intends to speed up development management processes and housing delivery, although already we have a good sense of what lies ahead in relation to planning appeals that proceed by way of inquiry.

Delivery

My 3 November 2018 blog post covered Sir Oliver Letwin’s recommendations to Government following his review into the “build out of planning permissions into homes“.

The Secretary of State has now confirmed that the Government will “shortly publish additional planning guidance on housing diversification – to further encourage large sites to support a diverse range of housing needs, and help them to build out more quickly“.

He agrees “with the principle that the costs of increased housing diversification should be funded through reductions in residual land values. The Government is committed to improving the effectiveness of the existing mechanisms of land value capture, making them more certain and transparent for all developments. My focus is on evolving the existing system of developer contributions to make them more transparent, efficient and accountable and my department is gathering evidence to explore the case for further reform.”

I will keep the need for further interventions to support housing diversification and faster build out, including amendments to primary legislation, under review. My department will also work closely with Homes England to identify suitable sites and will look for opportunities to support local authorities to further diversify their large sites.”

Development management

My priority now is to ensure faster decision-making within the planning system. My department will publish an Accelerated Planning Green Paper later this year that will discuss how greater capacity and capability, performance management and procedural improvements can accelerate the end-to-end planning process. This Paper will also draw on the Rosewell Review, which made recommendations to reduce the time taken to conclude planning appeal inquiries, whilst maintaining the quality of decisions. I will also consider the case for further reforms to the compulsory purchase regime, in line with our manifesto commitment.”

We wait to see what detailed proposals the green paper will include for the planning application stage and indeed for appeals that proceed by way of written representations or hearings.

Bridget Rosewell’s independent review of planning appeal inquiries was published on 12 February 2019. The executive summary sets out the current statistics as follows:

8. “On average, about 315 planning appeals each year are the subject of an inquiry (inquiry appeals), comprising 2% of the total number of planning appeal decisions. Around 81% of inquiry appeals are decided by planning inspectors on behalf of the Secretary State. The remaining 19% of cases (recovered appeals and called-in applications) are decided directly by the Secretary of State, having regard to an inspector’s report.

9. Although relatively small in number the scale of development, particularly housing development, that is determined through inquiry appeals is significant. In 2017/18 over 42,000 residential units were included in inquiry appeal schemes, of which just over 18,600 units were allowed/approved. This represents 5.4% of the 347,000 total approved residential units in the year 2017-18.

10. In 2017/18, it took an average of 47 weeks for inspector-decided cases from receipt of the appeal to a decision letter being issued. On average, it took 60 weeks from the point of validation of an appeal to the submission on an inspector’s report to the Secretary of State for recovered appeals and 50 weeks (from validation to submission of the inspector’s report) for called-in applications. It then took, on average, a further 17 weeks after the inspector’s report had been submitted for the Secretary of State to issue a decision for recovered appeals and a further 26 weeks for called-in applications. In 2017/18, 111 inquiry appeals were withdrawn before a decision was made.”

MHCLG updated its website page Appeals: how long they take on 14 March 2019. That 47 weeks average referred to in paragraph 10 has now slipped to 50 weeks (if that 50 weeks figure excludes recovered appeals and call-ins).

Bridget Rosewell had 22 recommendations as to how the planning appeal inquiry process can be improved and decisions made quickly:

1.The Planning Inspectorate should ensure the introduction of a new online portal for the submission of inquiry appeals by December 2019, with pilot testing to start in May 2019.

2.The Planning Inspectorate should work with representatives of the key sectors involved in drafting statements of case to devise new pro formas for these statements which can then be added to the new portal and include, where appropriate, the introduction of mandatory information fields and word limits.

3.The process of confirming the procedure to be used should be streamlined. Where an inquiry is requested, appellants should notify the local planning authority of their intention to appeal a minimum of 10 working days before the appeal is submitted to the Planning Inspectorate. This notification should be copied to the Inspectorate.

4.The Planning Inspectorate should ensure that only complete appeals can be submitted and ensure that a start letter is issued within 5 working days of the receipt of each inquiry appeal. The start letter should include the name of the inspector who will conduct the appeal.

5.The practice of the Planning Inspectorate leading on the identification of the date for the inquiry should be restored, with all inquiries commencing within 13 to 16 weeks of the start letter.

6.The Ministry of Housing, Communities and Local Government (MHCLG) should consult on the merits of appellants contributing towards the accommodation costs of the inquiry.

7.MHCLG and the Planning Inspectorate should substantially overhaul the approach to the preparation of statements of common ground.

8.a) In every inquiry appeal case, there should be case management engagement between the inspector, the main parties, Rule 6 parties and any other parties invited by the inspector, not later than 7 weeks after the start letter.
(b) Following the case management engagement, the inspector should issue clear directions to the parties about the final stages of preparation and how evidence will be examined, no later than 8 weeks after the start letter.

9.The inspector should decide, at the pre-inquiry stage, how best to examine the evidence at the inquiry and should notify the parties of the mechanism by which each topic or area of evidence will be examined, whether by topic organisation, oral evidence and cross-examination, round-table discussions or written statements.

10.The Planning Inspectorate should ensure all documents for an inquiry appeal are published on the new portal, in a single location, at the earliest opportunity following their submission.

11.The Planning Inspectorate should ensure the timely submission of documents. It should also initiate an award of costs where a party has acted unreasonably and caused another party to incur unnecessary or wasted expense.

12.The Planning Inspectorate should amend guidance and the model letter provided for local planning authorities to notify parties of an appeal, to make it clear that those interested parties who want Rule 6 status, should contact the Inspectorate immediately.

13.The Planning Inspectorate should consult with key stakeholder groups, to update its procedural guidance to set out clear expectations on the conduct of inquiries, based on a consistent adoption of current best practice and technology. Updated guidance should encourage and support inspectors in taking a more proactive and directional approach.

14.The Planning Inspectorate should ensure that its programme for improving operational delivery through greater use of technology fully exploits the opportunities available to enhance the efficiency and transparency of the inquiry event, such as the use of transcription technology for inspectors and publishing webcasts of proceedings.

15.Alongside other recommendations that will improve the transparency and clarity of the process (Recommendations 10, 12, 13 and 14), the Planning Inspectorate should develop a more effective and accessible guide to the inquiry process for interested parties, including members of the public.

16.Programming of inspector workloads should ensure there is enough time to write up the case immediately after the close of the inquiry.

17.a) To minimise the number of cases that need to be decided by the Secretary of State, MHCLG should keep their approach to the recovery of appeals and called- in applications under review. b)The Planning Inspectorate should work with MHCLG to identify ways that technology can be used to speed up the process of preparing the inspector’s report to the Secretary of State.

18.The Planning Inspectorate should submit an action plan to the Secretary of State by April 2019. The action plan should set out how it will ensure that the necessary organisational measures are put in place to deliver the proposed timescale targets and wider improvements by no later than June 2020. This should include the mechanisms by which sufficient inspectors can be made available. The action plan should also set out challenging, but realistic, intermediate milestones to be achieved by September 2019.

19.The Planning Inspectorate should review the issue of withdrawn appeals and consider how this impact on its work can be minimised. To deliver this the Inspectorate should:

(a)  always collect information from appellants about why an appeal is withdrawn

(b)  initiate an award of costs where there is evidence of unreasonable behaviour by a party in connection with a withdrawn appeal

(c)  with the benefit of more detailed information, review whether further steps can be taken to reduce the impact of withdrawals on its resources and other parties.

20.The Planning Inspectorate and MHCLG should regularly discuss the practical impact of new policy and guidance on the consideration of evidence at inquiries, with those parties who are frequently involved in the planning appeal inquiry process.

21.The Planning Inspectorate should adopt the following targets for the effective management of inquiry appeals from receipt to decision

(a) Inquiry appeals decided by the inspector
Receipt to decision – within 24 weeks – 90% of cases Receipt to decision – within 26 weeks – remaining 10% of cases

(b) Inquiry appeals decided by the Secretary of State
Receipt to submission of inspector’s report – within 30 weeks – 100% of cases

22.The Inspectorate should regularly report on its performance in meeting these timescales and what steps it is taking to expedite any cases that take longer.

(a)  The Planning Inspectorate should use its Transformation Programme to ensure there is robust and comprehensive management and business information, which is regularly collected and reported, on all aspects of their operation.

(b)  In developing an improved suite of information the Inspectorate should also:

ensure their digital case management record system records information on key variables in a consistent way

agree with MHCLG a new set of key performance indicators to effectively monitor the inquiry appeal process from end to end, including the availability of senior inspectors. “

These tables give a sense of what we might expect:

The Planning Inspectorate announced on 13 March 2019 that it is carrying out a trial of accelerating a small number of inquiry appeals as part of a pilot of holding inquiries much earlier than at present. For these appeals it will move away from its “bespoke” process whereby PINS invites the parties to agree a programme, including an inquiry date.

Before long we will all have to adapt our approaches to individual appeals in the interests of a more generally speedy process. It will be increasingly difficult to seek to negotiate a later date than PINS proposes (even when the main parties have no objections) in order to accommodate particular team members’ availability.

For the Inspectorate, it’s certainly going to be a period of change. It was announced today, 15 March 2019, that Graham Stallwood, currently chief planning officer at the Royal Borough of Kensington and Chelsea and chairman of the board of trustees of the RTPI, has accepted a position as PINS’ Director of Operations, commencing in May. Graham – you will be excellent!

For those of us who lodge and coordinate appeals for developer clients, well we are going to need to get to grips with a new IT interface for the submission of appeals and new case management processes but above all find the strength to tell our clients the news that, having been at the heart of strategic thinking in relation to a decision to invest in an appeal and having shaped the statement of case, their favourite QC may not in fact be available for that crucial inquiry…

Simon Ricketts, 15 March 2019

Personal views, et cetera

Speedy Delivery, Richland, Washington, MA

Delivery!

MHCLG’s announcements this week have clarified three separate issues which go to whether the “tilted balance” in paragraph 11(d) of the NPPF applies in relation to applications for planning permission for housing development.

Where the tilted balance applies, Government policy is of course that planning permission should be granted unless:

(i) the application of policies in this Framework that protect areas or assets of particular importance [being specific categories of policies set out in footnote 6 to the NPPF] provides a clear reason for refusing the development proposed; or

(ii) any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.”

Two situations where the tilted balance applies are:

⁃ “where the local planning authority cannot demonstrate a five year supply of deliverable housing sites” with an appropriate buffer percentage of 5%, 10% or 20% calculated by reference to paragraph 73 of the NPPF; and

⁃ “where the Housing Delivery Test indicates that the delivery of housing was substantially below [a defined percentage of] the housing requirement over the previous three years” the defined percentage being 25% in the case of Housing Delivery Test results published in November 2018, 45% in the case of results published in November 2019 and 75% in the case of results published in November 2020 and thereafter. (Additionally, the authority needs to publish an action plan where the delivery percentage is less than 95%, “to assess the causes of under-delivery and identify actions to increase delivery in future years“).

Paragraph 177 of the 2018 NPPF disapplies the presumption in favour of sustainable development (and therefore the possibility of the tilted balance applying) where the project requires appropriate assessment under the Conservation of Habitats Regulations, which has proved problematic following the Court of Justice of the European Union’s judgment in People Over Wind, which led to far more projects requiring appropriate assessment.

This week’s announcements have clarified three things:

1. How “deliverable” is defined for the purposes of that first situation.

2. The presumption in favour of sustainable development is no longer disapplied if there is a negative appropriate assessment.

3. What the November 2018 Housing Delivery Test results are for in relation to each English local planning authority (the results not having been, er, delivered on time by MHCLG).

After a long wait, and initial indications that this would all be done before Christmas, on 19 February MHCLG published:

Government response to technical consultation on updates to national planning policy and guidance

housing delivery test 2018 measurement

further revised NPPF

The revisions to the NPPF are limited but care will be needed when referring to decisions and court rulings to be clear as to the relevant policy basis: the 27 March 2012 NPPF, the 24 July 2018 NPPF or the 19 February 2019 NPPF.

What is deliverable?

Footnote 11 to the 2012 NPPF defined “deliverable” as follows:

To be considered deliverable, sites should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years and in particular that development of the site is viable. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within five years, for example they will not be viable, there is no longer a demand for the type of units or sites have long term phasing plans.”

The degree of probability required, given the words “realistic prospect“, was considered by the Court of Appeal in St Modwen Developments Ltd v Secretary of State (Court of Appeal, 20 October 2017), where Lindblom LJ said this:

35…Deliverability is not the same thing as delivery. The fact that a particular site is capable of being delivered within five years does not mean that it necessarily will be. For various financial and commercial reasons, the landowner or housebuilder may choose to hold the site back. Local planning authorities do not control the housing market. NPPF policy recognises that…


37… Had the Government’s intention been to frame the policy for the five-year supply of housing land in terms of a test more demanding than deliverability, this would have been done…


38 The first part of the definition in footnote 11—amplified in paras 3–029, 3–031 and 3–033 of the PPG—contains four elements: first, that the sites in question should be ” available now”; second, that they should “offer a suitable location for development now”; third, that they should be ” achievable with a realistic prospect that housing will be delivered on the site within five years”; and fourth, that “development of the site is viable ” (my emphasis). Each of these considerations goes to a site’s capability of being delivered within five years: not to the certainty, or—as Mr Young submitted—the probability that it actually will be. The second part of the definition refers to “[sites] with planning permission”. This clearly implies that, to be considered deliverable and included within the five-year supply, a site does not necessarily have to have planning permission already granted for housing development on it. The use of the words “realistic prospect” in the footnote 11 definition mirrors the use of the same words in the second bullet point in paragraph 47 in connection with the requirement for a 20% buffer to be added where there has been “a record of persistent under delivery of housing”. Sites may be included in the five-year supply if the likelihood of housing being delivered on them within the five-year period is no greater than a “realistic prospect”—the third element of the definition in footnote 11 (my emphasis). This does not mean that for a site properly to be regarded as “deliverable” it must necessarily be certain or probable that housing will in fact be delivered upon it, or delivered to the fullest extent possible, within five years.”

The wording in glossary to the 2018 NPPF was made more specific:

“”Deliverable: To be considered deliverable, sites for housing should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years. Sites that are not major development, and sites with detailed planning permission, should be considered deliverable until permission expires, unless there is clear evidence that homes will not be delivered within five years (e.g. they are no longer viable, there is no longer a demand for the type of units or sites have long term phasing plans). Sites with outline planning permission, permission in principle, allocated in the development plan or identified on a brownfield register should only be considered deliverable where there is clear evidence that housing completions will begin on site within five years.”

Due to concerns as to potential ambiguity (which I didn’t really see) as to the treatment of non-major development (ie developments of less than ten homes, with a site area of less than 0.5 hectares), the wording has now been changed in the 2019 NPPF to read as follows

“Deliverable: To be considered deliverable, sites for housing should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years. In particular:

a)  sites which do not involve major development and have planning permission, and all sites with detailed planning permission, should be considered deliverable until permission expires, unless there is clear evidence that homes will not be delivered within five years (for example because they are no longer viable, there is no longer a demand for the type of units or sites have long term phasing plans).

b)  where a site has outline planning permission for major development, has been allocated in a development plan, has a grant of permission in principle, or is identified on a brownfield register, it should only be considered deliverable where there is clear evidence that housing completions will begin on site within five years

But there will remain room for argument: “realistic prospect” inevitably requires judgement and the local planning authority’s assessment as to the position of individual sites will always be potentially controversial given its interest (and/or that of objectors to development) in demonstrating an adequate supply so as to avoid the tilted balance. We will no doubt still see cases such as East Cheshire Council v Secretary of State (Deputy Judge Justine Thornton QC, 1 November 2018), East Bergholt Parish Council v Babergh District Council (Sir Ross Cranston, 7 December 2018) and (no transcript available but the link is to a useful Cornerstone summary) R (Chilton Parish Council) v Babergh District Council (Deputy Judge Robin Purchas QC, 2 February 2019.

There has also previously been much uncertainty as to the circumstances in which the new standard method for assessing local housing need should be used as the basis for assessing whether a five year supply of specific deliverable sites exists in the case of a plan with strategic policies which are more than five years old (unless those strategic policies had been reviewed and found not not to require updating). Footnote 37 in the 2019 NPPF makes clear that the standard method should indeed be used (which reflects the 5 February 2019 decision of the Secretary of State in relation to the Edenthorpe Doncaster called in application, blogged about by Lichfields on 21 February 2019).

Appropriate assessment

Hooray, paragraph 177 now reads:

The presumption in favour of sustainable development does not apply where the plan or project is likely to have a significant effect on a habitats site (either alone or in combination with other plans or projects), unless an appropriate assessment has concluded that the plan or project will not adversely affect the integrity of the habitats site.

The Housing Delivery Test

Well, the results are finally in. The housing delivery test 2018 measurement. According to analysis by Savills:

⁃ no authority is subject this time round to the tilted balance by virtue of delivering less than 25% of its housing requirement over the last three years

⁃ 86 out of 326 authorities are subject to the requirement of a 20% buffer on their five year housing land supply figure as a result of having delivered less than 85% of their housing requirement over the last three years

⁃ 107 out of 326 authorities have to prepare an action plan as a result of having delivered less than 95% of their housing requirement over the last three years.

A future blog post will deal with the “need” side of the equation…

Simon Ricketts, 23 February 2019

Personal views, et cetera