Great Expectations: Pip & The Brownfield Land Registers

“We changed again, and yet again, and it was now too late and too far to go back, and I went on“. (Charles Dickens, Great Expectations)
Permissions in principle will change our planning system significantly, mark my words. In my 11.6.16 blog post  I posed a series of questions arising from the legislative skeleton that is sections 150 and 151 of the Housing and Planning Act 2016. 
Victorian part-work style, we now have had the Housing and Planning Act 2016 (Permission in Principle etc) (Miscellaneous Amendments) (England) Regulations 2017  (made 6 March 2017, in force 27 March 2017), the Town and Country Planning (Brownfield Land Register) Regulations 2017  (made 20 March 2017, in force 16 April 2017) and the Town and Country Planning (Permission in Principle) Order 2017 (made 20 March 2017, 15 April 2017). The statutory instruments don’t yet give effect to all of what sections 150 and 151 enable, but we now have some answers. 
This blog post is not a full summary of how the regime will operate. There are various good summaries but I particularly recommend the Lichfields 27 March 2017 ‘essential guide‘.
A few headlines from the new regime:
1. Local planning authorities will be under a statutory duty to publish their brownfield land registers by 31 December 2017 and then maintain them, reviewing the entries at least annually. 
2. The registers will be in two parts:
– Part 1: previously developed land with an area of at least 0.25 hectares that is suitable and available for residential development and where residential development is achievable (all defined terms)
– Part 2: land in Part 1 where the local planning authority has exercised its discretion to enter the land in Part 2 and has decided to allocate the land for residential development having followed defined publicity, notification and consultation procedures. 

3. The information that must be recorded for each entry is specified and includes

– “the minimum and maximum net number of dwellings, given as a range, which in the authority’s opinion, the land is capable of supporting”

– “where the development includes non-housing development, the scale of any such development and the use to which it is to be put“. 

4. Part 2 will not include sites where the development would require environmental impact assessment. So, if the proposed development falls within Schedule 2 column 1 of the 2011 EIA regulations (for most purposes, more than 150 dwellings or on more than 5 hectares), a negative screening opinion or direction must first be obtained (but remember, indicative screening thresholds as to when significant environmental effects are likely to arise allow for the possibility of projects much larger than 150 dwellings). 

5. There are no statutory rights of appeal if the local planning authority refuses to include land on the register (ECHR article 6 compliant?). Judicial review would, as always with any decision of a public body, be available but the decision to include land on Part 2 is at the local planning authority’s discretion so that would not be easy.  

6. Once land is on Part 2 it has automatic “permission in principle” for five years. In order to be able to carry out the development, application for technical details consent is required, particularising “all matters necessary to enable planning permission to be granted”. The statutory determination period for technical details consent is ten weeks for major development and otherwise five weeks, so deliberately shorter than the equivalent periods in relation to “traditional” non-EIA planning applications (thirteen and eight weeks respectively). A section 106 agreement may be required if the usual tests are met. 

7. There is no defined limit on the extent of non-housing development that can benefit from the procedure, alongside residential development. 

8. The procedure applies to conversion and extension of existing buildings as well as development. 

For a wider overview of where this mechanism is heading, there are also useful references in DCLG Planning Update Newsletter March 2017, from which it is clear that further regulations will follow to (1) allow applications for permission in principle to be made for minor development (ie basically less than ten homes) for sites on part 1 of a brownfield land register and to (2) allow automatic permission in principle to stem from allocation in defined categories of statutory development plans rather than just from designation on a brownfield land register. Guidance is also in the offing (dovetailed with the revised NPPF? We can but hope). 
We also await the Government’s response to its February 2016 technical consultation on implementation of planning changes  chapter 2 (permission in principle) and chapter 3 (brownfield register). It was originally promised to be published alongside the regulations. In the meantime, a number of passages in the consultation document are useful in putting flesh on the bones:

“The result of a grant of permission in principle is that the acceptability of the ‘prescribed particulars’ cannot be re-opened when an application for technical details consent is considered by the local planning authority. Local planning authorities will not have the opportunity to impose any conditions when they grant permission in principle. It will therefore be important for the development granted in principle to be described in sufficient detail, to ensure that the parameters within which subsequent application for technical details consent must come forward is absolutely clear.”

“We expect that the parameters of the technical details that need to be agreed, such as essential infrastructure provision, will have been described at the permission in principle stage and will vary from site to site”

“We are proposing that local planning authorities should use existing evidence within an up to date Strategic Housing Land Availability Assessment as the starting point for identifying suitable sites for local brownfield registers. To support this, we will encourage authorities to consider whether their Assessments are up to date and, if not, to undertake prompt reviews. 


While sites contained within the Strategic Housing Land Availability Assessment are a useful starting point, we will encourage local authorities to ensure they have considered any other relevant sources if these are not included in their Assessments. This could include sites with extant planning permission and sites known to the authority that have not previously been considered (for example public sector land). 


We will also expect authorities to use the existing call for sites process to ask members of the public and other interested parties to volunteer potentially suitable sites for inclusion in their registers. We propose that this would be a short targeted exercise aimed at as wide an audience as is practicable. That will enable windfall sites to be put forward by developers and others for consideration by the authority. 

Authorities that have recently undertaken a full Strategic Housing Land Availability Assessment may not consider this to be necessary when initially compiling a register. However, in areas without up to date evidence and for all authorities completing subsequent annual reviews of their register, the process of volunteering potentially suitable sites will play an important role in refreshing the evidence base and help ensure all suitable sites, including windfall sites, are included.”

“We intend to introduce measures that will apply where additional action is needed to ensure that sufficient progress is being made. These measures could include a policy based incentive which would mean that local planning authorities that had failed to make sufficient progress against the brownfield objective would be unable to claim the existence of an up-to-date five year housing land supply when considering applications for brownfield development, and therefore the presumption in favour of sustainable development would apply.

“We propose that the measures we adopt would take effect fully from 2020, and would apply to any local planning authority that had not met the 90% commitment by that date. However, in light of the need for local planning authorities to make continuous progress towards the 90% commitment, we are also interested in views on any intermediate objectives and actions that might apply. “

Be in no doubt, eventually we will have a mechanism that:

– imposes hard statutory deadlines on authorities to publish and regularly update their registers
– whilst light on statutory recourses for developers whose land is not included, will be focused on by Government – woe betide authorities that do not play ball

– will in many cases provide a quicker route to development than the familiar allocation, outline permission, reserved matters approach

– will be potentially relevant for establishing the development credentials of a site even if in due course a traditional planning application is intended

If you have residential development or conversion in mind, the first step is to seek to ensure that your property is on Part 1 of the first round of brownfield land registers, to be published by 31 December 2017. Within the 73 authority pilot areas  this process is well underway. Although care is needed to secure reference to an appropriate scale of development, that’s a pretty immediate way to secure acceptance that your site is suitable for residential development!

Simon Ricketts 1.4.17
Personal views, et cetera

London Calling: Mayoral Interventions

Sadiq Khan is now 10 months into his role. How has he been using his Mayor of London Order 2008 powers to intervene in relation to strategic planning applications? The number one priority in his manifesto was, after all, to:
tackle the housing crisis, building thousands more homes for Londoners each year, setting an ambitious target of 50 per cent of new homes being genuinely affordable, and getting a better deal for renters.”


The consultation draft of the new London Plan is expected in August 2017, although we already have his draft affordable housing and viability SPG with its 35% affordable housing threshold approach (below which viability appraisal justification is required), covered in my 1.12.16 blog post. Ahead of the anticipated adopted version, a couple of items in the 14 March 2017 report to the London Assembly’s Planning Committee are of background interest:

– from page 9 a transcript of a discussion held on 1 February 2017 with James Murray, Jamie Ratcliff and private sector representatives in relation to the draft SPG

– from page 51 the Committee’s proposed response to the draft SPG.

Given that the Mayor’s intervention powers under the 2008 Order (to direct refusal of an application or call it in for his own determination) are the most direct levers that he can pull in relation to specific development proposals, it is perhaps surprising that so far we have not seen them used as much as under the last days of the Johnson regime.
This is how it stands as at 18 March 2017:
Flamingo Park, Bromley
Khan’s first intervention was in fact to direct refusal on 15 June 2016 of the Flamingo Park scheme in Bromley of a Green Belt scheme for a new stadium for Cray Wanderers FC along with 28 flats. (One for pub quizzes: Cray Wanderers claim to be the oldest football club in London – and second oldest in the world!). 
The London Borough of Bromley was minded to grant planning permission, but the Mayor considered that the ‘very special circumstances’ test for inappropriate development in the Green Belt had not been met. He added:
“Whilst writing I would take this opportunity to express my concern as to the lack of affordable housing and the effect the excess parking provision will have on the highway network in the vicinity of the site.”
Unusually, the Secretary of State promptly intervened and called in the application before the refusal was issued. The Mayor was preparing to defend the refusal direction but the applicant Cray Wanderers announced yesterday (17 March 2017) that it has withdrawn the application following legal advice and discussions with the Mayor and Bromley Council. It will resubmit a new application “in the next four to six weeks”. 
It will be interesting to see the extent to which the new scheme sees any increased housing component and the approach taken to affordable housing. 

Plough Lane, Merton

Khan’s next intervention also related to a proposed football stadium – this time Galliard Homes proposal for a new 20,000 seat football stadium for AFC Wimbledon and 602 residential units, on the Wimbledon Greyhound Stadium site, next to the site, now redeveloped for housing, of the old Wimbledon FC stadium in Plough Lane (Wimbledon FC now having of course having emigrated to Milton Keynes as MK Dons). (I hope you’re following this – I rather wish I had included Wimbledon and Cray Wanderers in my 7.1.17 blog post Level Playing Fields: Football Stadia & Planning).
The proposals included 9.6% affordable housing (all intermediate, shared ownership) with a review mechanism. The application was called in by previous Mayor Boris Johnson on 26 March 2016 (against GLA officers’ advice), but in an unusual twist, Mayor Sadiq Khan released it back to Merton on 19 August 2016 for Merton to approve. I had previously doubted (and possibly still do) whether it is lawful for a Mayor to release back an application which has previously been called in – there is certainly no express power to do so – but the Mayor’s reports set out the legal justification that he relies on. 
Bishopsgate Goodsyard, Hackney

There is one further Johnson hangover, the application for the mixed use redevelopment of Bishopsgate Goodsyard (including 1,356 residential units) which was called in by him on 23 September 2016 at the request of the applicant. Despite having been called in presumably with the intention of approving it, or at least reaching a determination more speedily than if it had been left with the London Borough of Hackney as local planning authority, the application then hit the buffers when a GLA officers’ report was published on 8 April 2016, recommending that he refuse it at the representation hearing arranged for 18 April 2016. The applicant decided to defer the hearing to address the issues and there it rests. The next twist is anyone’s guess. Will Khan even have to reach any decision or will we see withdrawal and resubmission?

We now come to two much more recent decisions, both on 10 March 2017. The Mayor’s draft SPG was obviously referred to in both cases and affordable housing review mechanisms imposed in both cases, with a cap of 50% – which is the borough-wide requirement applicable in both cases (albeit Haringey’s emerging local plan appears to be proposing a lower 40% borough wide target). 
Hale Wharf, Haringey
Haringey members had resolved, against officers’ recommendations, to refuse planning permission for this 505 residential unit scheme, within the Upper Lee Valley Opportunity Area and the Tottenham Housing Zone, on no fewer than eleven grounds. The Mayor called it in on 4 January 2017 and approved it on 10 March 2017 as recommended in his officers’ stage 3 report.
The position secured on affordable housing was as follows:
a minimum of 177 units (35% of overall units) to be affordable, with 20% affordable rent and 80% shared ownership by habitable room. 

Details of affordability will be secured. Review mechanisms as follows will secure the delivery of more affordable housing (up to 50% of the scheme or the level of grant funding) should it be viable: 
- 

Review mechanism (1): In the event that the development has not been substantially implemented within 2 years of the date of the decision, an updated viability assessment shall be submitted in order to establish if additional affordable housing can be provided and any such additional affordable housing shall be provided on site; 
- 

Review mechanism (2): A viability assessment shall be submitted prior to substantial completion of Phase 1 in order to establish if additional affordable housing can be provided and any such additional housing shall be provided on site; 
- 

Review mechanism (3): A viability assessment shall be submitted prior to substantial completion of Phase 3, to establish whether there is any surplus from the completed scheme which can be contributed towards off-site provision of affordable housing. 
- 

Review mechanism (4): Further review if development stalls for a period of more than 24 months.
It’s worth noting that there was already significant GLA funding being given for infrastructure for the scheme before the application was called in but the Mayor’s involvement appears to have secured £7.75m worth of affordable housing funding to a registered provider, so the review mechanism will be aimed at recovery and recycling of that grant funding.
Palmerston Road, Harrow

Harrow members resolved, again against their officers’ recommendations, to refuse an application by Origin Housing for a mixed use development within the Harrow and Wealdstone Opportunity Area and the Heart of Harrow Housing Zone to provide 187 residential units, within 5 buildings of between 1 and 17 storeys. Again, on 10 March 2017 the Mayor accepted the recommendations in his officers’ stage 3 report.
The affordable housing position secured is as follows: 
– a minimum of 74 homes (40% of overall units) on the site to be provided as affordable homes, with 30% affordable rent and 70% shared ownership (40% was proposed in the original application but the tenure mix is different);

– a viability review mechanism will secure the delivery of more affordable housing (up to a level of 50% of the scheme) should it be viable. 

 The affordable housing is with grant based on the Mayor’s Affordable Housing Programme 2016-21, with an early review mechanism if enabling works are not substantially commenced within two years. 

Conclusions

Of course the Mayor has to be selective as to how to use his powers. After all, the legal limits are clear from R (Spitalfields Historic Trust) v Mayor of London (Gilbart J, 10 May 2016), where Mayor Johnson’s use of the Mayoral call in power was tested and just about survived. However, so far, perhaps true to the man – and maybe no bad thing – we have seen a more cautious approach from Sadiq Khan:

– one direction of refusal where, who knows, a compromise may be on the cards

– one previously called in application returned to the borough to determine

– two applications called in and approved, but both schemes offering more than 35% affordable housing, with a review mechanism potentially to get to 50% – both schemes in opportunity areas and London housing zones where officers’ recommendations to approve had been overturned.

Administrations usually become more interventionist over time. I headed this piece London Calling, but with Mayor Khan we certainly haven’t yet seen The Clash. 
Simon Ricketts 18.3.17
Personal views, et cetera

 

 

 

Completion Notices: More Pointy, Still Pointless?

Completion notices have always been a blunt tool, little used by local planning authorities. The Housing White Paper proposes sharpening them, but to what end?
If we blow the dust off a bit we can remind ourselves that the current completion notice procedure in sections 94 and 95 of the Town and Country Planning Act 1990 is as follows:
– Development must have been begun within the time limit on the planning permission and that time limit must have now expired. 

– If the LPA considers that the development “will not be completed within a reasonable period” they can serve a completion notice stating that the planning permission will cease to have effect after a period specified in the notice which must be at least 12 months. 

– Any notice is only effective if confirmed by the Secretary of State, who may extend the 12 months’ period. Any person served with a completion notice who objects within a time limit set out on the notice (must be at least 28 days) has a right to a hearing before the Secretary of State before he reaches his decision.

– If the notice takes effect, the planning permission becomes invalid at the end of the specified period, but this does not affect any development carried out under the permission before the end of the period. 

The procedure is very seldom used, for various reasons:
– It doesn’t do what it says on the tin. It does not secure completion of the development. If development has stalled, the developer is already having pretty fundamental problems. The threat of a completion notice is not going to lead to a developer finding significant amount of money to overcome those problems – indeed it could jeopardise a solution being found if funders are spooked.  

– Instead, use of the procedure is likely to lead to an uncompleted development – it should perhaps be called an uncompletion notice. Furthermore, the courts have resisted to date any notion that if, by the end of the specified completion deadline, only part of a building has been built, the part built is in any way no longer unauthorised (Cardiff County Council v National Assembly for Wales, Davis J, 22 June 2006 – in that case, an unsightly part-built garage, which the Council sought unsuccessfully to enforce against after the deadline in the completion notice). 

– The test as to whether the development “will be completed within a reasonable period” is too vague, particularly in relation to major projects. What is it to be judged against?

– The need for approval by the Secretary of State adds to the potential for delay and uncertainty. 

So what is the Government now proposing? As part of its collection of “Holding Developers And Local Authorities To Account” measures, the white paper contains the following:
“2.42 We want to ensure local planning authorities have more effective tools to deal with circumstances where planning permission has been granted but no substantive progress has been made. We propose to simplify and speed up the completion notice process, whereby if development on a site has stopped and there is no prospect of completion, the local authorities can withdraw planning permission for the remainder of the site. This would make it easier for local authorities to serve a completion notice, helping to stimulate building or clear unused permissions from their planned supply of land. “

Views are sought by 2 May on two proposals:

“A.107 The Government proposes to amend legislation to remove the requirement for the Secretary of State to confirm a completion notice before it can take effect. Local authorities know their circumstances best, and removing central government involvement will help shorten the process, and give authorities greater control and certainty. The opportunity for a hearing will be retained where there are objections. 

A.108 We also intend to amend legislation, subject to consultation, to allow a local authority to serve a completion notice on a site before the commencement deadline has elapsed, but only where works have begun. This change could dissuade developers from making a token start on site purely to keep the permission alive. However, it is important that this would not impact on the willingness of lenders to invest.”

These proposals are hardly radical. The Government published a report on completion notices back in July 2001, that it had commissioned from Cardiff University and Buchanan Partnership, no longer on the web as far as I know, which back then made these recommendations (to which it appears the Government never responded):
* Greater thought should be given to tailoring the time period in the standard condition relating to the commencement of development to fit the situation. In particular, the period could be reduced to two years for minor development.
* The Government’s advice, then in Circular 11/95, against including a condition requiring that the whole of an approved development be completed should be reviewed.

* No justification for referral to the Secretary of State, and this should be replaced by a right of appeal.

* Better publicity for the system could lead to its greater use.

The first recommendation in the white paper echoes the 2001 report and is hardly controversial. There should be no reason to require confirmation by the Secretary of State if objections to the notice haven’t been received. 
The second recommendation is more worrying, when looked at in conjunction with the separate proposals in the white paper, that:
– the applicant should “provide information about their estimated ‘start date’ (month/year when a substantive start would take place) and ‘build out rate’ (the number of homes built per financial year) for all proposals for or including housing development
– developers should “provide local authorities with basic information (in terms of actual and projected build out) on progress in delivering the permitted number of homes, after planning permission has been granted”

– large housebuilders should be required to publish “aggregate information on build out rates”

Owners and developers are normally vigilant to keep planning permissions alive by carrying out a material operation prior to the implementation deadline on the permission, reflecting the frequent reality that detailed architectural and engineering work post-permission, as well as the funding structure to underpin a development, often including necessary pre-lets in the case of commercial floorspace, take longer than the deadline for implementation (in relation to which the default period is now proposed to be reduced to two years). Missing the deadline means going down a very long snake to submit a fresh application for planning permission. 
The white paper proposal envisages that an LPA could serve a completion notice at any time after the developer has carried out a material operation, even before the implementation deadline has expired. What would there be to prevent an LPA serving completion notices as a matter of routine where development appears to be slower than was previously indicated, or than housebuilder averages? The white paper itself questions whether this would “impact on the willingness of lenders to invest”. The answer is that it surely would as there would be no certainty for a lender that if the borrower developer defaults on its loan the lender will have time to step in and secure the completion of the development under the same permission – or work through another solution with the borrower. The underpinning certainty of the permission is lost. Two years to implement a permission is no period at all and if relatively minor works within that period may not suffice to keep the permission alive, banks will undoubtedly want to consider the risk profile vis a vis particular authorities very carefully. 
Why not look at more constructive opportunities with the information to be provided about actual or projected build out rates? For example:
– Remember the section 106BC procedure? Revised section 106 arrangements alleviating affordable housing requirements ceased to apply to those parts of the development that had not been completed within three years. That sort of structure could be considered by LPAs in section 106 agreements where justified.

– Any viability review mechanism could be expressed as only operable if specified amounts of development had not been achieved by defined milestones.

– Encourage LPAs to tie any funding they control, eg use of CIL monies for the benefit of the scheme, to timely build out progress.

So much can be achieved by planning obligations and conditions, instead of spending time working out how to hack at the problem with what is hardly the sharpest tool in the box.


Simon Ricketts 25.2.17

Personal views, et cetera

The Unfortunate Case Of The Council’s Sports Hub

It’s easy for a planning lawyer to summarise R (Boot) v Elmbridge Borough Council  (Supperstone J, 16 January 2017). The High Court confirmed what we already know from paragraph 89 of the NPPF – that “the provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it” is not inappropriate development, but that conversely, if harm is caused to the openness of the Green Belt, even limited harm, the development is inappropriate and permission should be refused save in very special circumstances.
The court duly quashed a planning permission granted on 26 January 2016 for the “Elmbridge Sports Hub” – a proposed athletics stadium, ‘league’ football pitch and training pitches (grass and artificial) for Walton Casuals FC, Walton and Hersham FC and Walton Athletics club to replace their current facilities, on a former landfill site in Waterside Drive, Walton-on-Thames.

However, scratch beneath the surface of any case and there are usually some interesting factors. 

This is not a developer-led proposal. It’s being promoted by Elmbridge Borough Council, on land that it owns. The development is proposed to be funded by the sale by the Council, for the development of 52 homes, of Walton and Hersham FC’s present ground at Stompond Lane. 
Most developers would not take the risk of starting construction work ahead of their permission being free from legal challenge. However, Elmbridge embarked on construction on 21 March 2016, despite the scheme already at that stage having become significantly controversial. Indeed the claimant’s solicitors, renowned claimant firm Richard Buxton & Co, were already on board for objectors and had previously scored an early blow by securing an EIA screening direction from the Secretary of State in July 2015, when the application had already initially gone to committee, requiring environmental impact assessment to be carried out. The Secretary of State ruled:
“Whilst this is a finely balanced case, the proposal does raise concerns to suggest the potential for significant environmental impacts through surface disturbance of the former landfill site, uncertainty about the extent of the contamination of the site and the potential for gas migration to both the River Thames and nearby residential properties.”
Why did development start when the permission was still at risk, presumably when proceedings had already been served, or at least a pre-action protocol letter? I don’t know any of the details but I do note that the local elections took place a little afterwards in May 2016. Was this at all relevant?
Rolling ahead to 2017, by the time that the permission was quashed, the construction project was significantly advanced. With the developer a local planning authority, responsible for planning enforcement, this is surely hardly a comfortable position.  

Image from Get Surrey website

Elmbridge had tried unsuccessfully to delay the court hearing, fixed for 6 December 2016, to allow a second planning application to be determined, for a revised version of the scheme, a request that was rejected by Ouseley J in November.  
The second application eventually went to committee on 17 January 2017, the day after the first permission was quashed and on the basis of a detailed officers’ report, resolved to approve it (perhaps no surprise there). Having delayed the scheme first on an EIA point and secondly on the council’s flawed approach to green belt policy, no doubt objectors will be looking for their next line of attack. 
So a straight-forward ruling by Supperstone J but the situation on the ground is plainly a mess. How does a local planning authority get itself into this sort of position? To what extent is this about financial or political imperatives and, against the backdrop of a construction project in mid flow (one dreads to think of the financial consequences under its construction contract if the authority now pauses or abandons the project), how easy was it for members to determine the second application with open minds but on the contrary how difficult it may be for objectors to prove to a court that minds were already made up?
Simon Ricketts 21 January 2017
Personal views, et cetera

The Rest Of The Iceberg: Delegated Decisions

What percentage of planning decisions would you say were made by officers, acting under delegated powers, rather than by members?
Back in 2002 the then Labour Government introduced a target that 90% of planning decisions should be delegated to officers but in recent times ministers appear to have gone quiet on the issue, despite greater use of delegated powers plainly leading to faster determination of applications. And if (big if) an LPA has an up to date local plan and/or neighbourhood plan, one of the benefits should be that decision-making on planning applications should be more straight-forward. 

The Planning Practice Guidance simply says: “The exercise of the power to delegate planning functions is generally a matter for individual local planning authorities, having regard to practical considerations including the need for efficient decision-taking and local transparency. It is in the public interest for the local planning authority to have effective delegation arrangements in place to ensure that decisions on planning applications that raise no significant planning issues are made quickly and that resources are appropriately concentrated on the applications of greatest significance to the local area.”  
So I was ready to write a blog post suggesting that perhaps there should be greater encouragement for delegation arrangements, whereby applications only need to go to committee unless there is genuine uncertainty as to the application of policy. After all there is a certain logic to a model where politicians arrive at the detailed plan for their area and then officers make depoliticised decisions in accordance with that plan.
However, the statistics are interesting. When one looks at the latest DCLG figures for England, for July to September 2016  published on 15 December 2016, 94% of decisions were taken by officers over the quarter. (There were 115,800 decisions in the quarter of which 108,500 were delegated). This is the same percentage as for the same quarter in 2015 and 2014, prior to which the proportion was significantly lower. 
94%! So the more major applications that many of us focus on are the tip of a very large iceberg. Do people think that there is scope for this proportion to go even higher?
The criteria for selection of applications that are to be determined by officers are of course set out in the LPA’s scheme of delegation, within its constitution. There can be significant differences as between the approaches of authorities. So long as the decision as whether an application is to go to committee or is to be determined by an officer is made within a valid scheme of delegation there is little scope for legal challenge – see for example R (Technoprint) v Leeds City Council (Wyn Williams J, 24 March 2010). 
However, nowadays the delegated decision-making process itself is more transparent. Regulation 7 of the Openness of Local Government Bodies Regulations 2014 (made under section 40(3) of the equally catchily titled Local Audit and Accountability Act 2014) provides as follows:
“(1) The decision-making officer must produce a written record of any decision which falls within paragraph (2). 


(2) A decision falls within this paragraph if it would otherwise have been taken by the relevant local government body, or a committee, sub-committee of that body or a joint committee in which that body participates, but it has been delegated to an officer of that body either—


(a) under a specific express authorisation; or



(b) under a general authorisation to officers to take such decisions and, the effect of the decision is to—

(i) grant a permission or licence; 


(ii) affect the rights of an individual; or


 (iii) award a contract or incur expenditure which, in either case, materially affects that relevant local government body’s financial position.




(3) The written record must be produced as soon as reasonably practicable after the decision-making officer has made the decision and must contain the following information—


(a) the date the decision was taken;


(b) a record of the decision taken along with reasons for the decision;



(c) details of alternative options, if any, considered and rejected; and



(d) where the decision falls under paragraph (2)(a), the names of any member of the relevant local government body who has declared a conflict of interest in relation to the decision.”
The High Court in R (Shasha) v Westminster City Council  (Deputy High Court Judge John Howell QC, 19 December 2016) recently held that this means that there is a duty to provide reasons where a decision is taken under delegated powers. He quashed a planning permission granted by Westminster City Council for development of a site at Portman Mansions, Chiltern Street on the basis that the officer’s report did not adequately deal with a number of material considerations. 
Of course this may be seen as strange given that, since 25 June 2013, LPAs are generally no longer required to give reasons for granting planning permission. The deputy judge dealt with that argument as follows:
“The suggestion that imposing a requirement to give reasons for the decision to grant planning permission under delegated powers with effect from August 6th 2014 under the 2014 Regulations sits ill with the earlier removal of the requirement in all cases to give summary reasons for the grant of planning permission on June 25th 2013 provides no reason to construe regulation 7 of the 2014 Regulations other than in accordance with its terms. The Explanatory Memorandum to Order which removed the requirement, the Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013, explained the change on the basis that officer reports typically provided more detail on the logic and reasoning behind a particular decision to grant planning permission than the decision notice and that the requirement to provide summary reasons for that decision added little to the transparency and quality of the decision making process but that it did add to the burdens on local planning authorities. It is at least consistent with such reasons for that change that reasons should nonetheless be required to be provided for delegated decisions. Whereas officer reports are almost invariably produced when decisions are taken by members of planning authorities, an equivalent document or one with the content that regulation 7(3) requires need not be produced when an officer takes a decision to grant planning permission. But, whether or not that provides an explanation for regulation 7 of the 2014 Regulations and whether or not the requirement it imposes may be thought anomolous given the removal of the requirement to give summary reasons in all cases, in my judgment there is no basis for reading the words “other than a planning permission” into regulation 7(2)(b)(i), where they do not appear, or to exclude decisions to grant planning permission from those falling within section 7(2)(a) or 7(2)(b)(ii) if they would also otherwise fall within those provisions.
Is it just me or is there an element of “I know it’s crazy, but…” about that explanation?
Whilst it must be right that we should know the reasoning for a decision to grant planning permission, is Shasha going to lead to a more cautious approach on the part of LPAs, with the length of officers’ delegated powers reports extending to the length of reports to committee, so as to guard against similar challenges, in turn leading to longer lead-in periods and greater calls on officer time (like the rest of the iceberg, surely they are going to be underwater)? And what about that reference in regulation 7(3)(c) to “details of alternative options, if any, considered and rejected“?  Now that would be an interesting case….


Simon Ricketts 13.1.17
Personal views, et cetera

Level Playing Fields: Football Stadia & Planning

Professional football throws up such planning dilemmas. Stadia developments, usually now accompanied by a panoply of other uses, are space-hungry beasts, with extreme peaks in terms of traffic movements and noise. Football clubs are powerful institutions, often not driven by rational economic considerations, able to generate letters of support for their proposals from around the globe and with inevitably strong local political connections. And each club is effectively a monopoly: if a club says it needs to move or expand, what is a council to do? Who is going to blow the whistle?
It’s a particularly interesting week ahead for sports planning fans:

Chelsea


Chelsea FC’s proposed redevelopment of Stamford Bridge to create a new 60,000 seat stadium, with a direct link to Fulham Broadway tube station, is to be considered by the London Borough of Hammersmith and Fulham’s Planning and Development Control Committee on 11 January 2017 with a recommendation for approval. Whilst there are a variety of objections from local residents and groups as well as objections from the Royal Borough of Kensington and Chelsea and the Royal Parks, 12,000 people signed and sent in standard form postcards supporting the development, including 6,449 from outside London as well as 2,481 from outside the UK – how much weight should be given to this sort of managed process?

Luton Town
Now here’s a curious situation. Luton Council’s submission version of its local plan, currently under examination, allocated a site just off junction 10 of the M1 for the relocation of league division 2 Luton Town FC from its Kenilworth Road Stadium. The site known as south of Stockwood Park, has been the club’s favoured relocation choice for many years. The club acquired it in 2015. There is a separate site in Luton town centre, known as the Power Court site, which is allocated for retail led development (although at submission stage the council made a modification to introduce the possibility of an element of use class D2 assembly and leisure). 
The club has now decided that it does not wish to build a 15,000 seat stadium on the south of Stockwood Park site and instead wishes to build a 17,500 (rising ultimately to to 22,500) seat stadium on the Power Court site. In August 2016 it made planning applications  for a stadium and associated development at the Power Court site and for retail and mixed use development at its out of town south of Stockwood Park site. The applications have not yet been determined.  
Luton Council wrote to the local plan inspector on 22 November 2016 to indicate that, as it has “clear and unequivocal statements from the landowner to the effect that a stadium will not be developed” at the junction 10 site it had decided at a council meeting on 15 November 2016 to remove from the south of Stockwood Park allocation references to a 15,000 seater stadium and related facilities. 
The local plan inspector is holding hearing sessions on 10 and 11 January 2017 to pick his way through the position and has issued supplementary questions for the sessions in the light of the turn of events. 

Millwall
The land surrounding Millwall’s New Den is the subject of a planning permission for the New Bermondsey mixed use development project, being promoted by Renewal Limited, which owns most but not all of the site. Renewal has been working with Lewisham Council to bring the scheme, which includes 2,400 new homes, community sports facilities, health centre, premises for a local church, business space and studios and enhanced public realm, to fruition. Renewal and Lewisham assert that the scheme will complement and support the club’s activities at the stadium. 

However, the club and its supporters oppose elements of the Renewal scheme, asserting that the proposals would jeopardise the status of its youth academy which would in turn jeopardise the future of the club at the New Den. The Council’s Mayor and Cabinet decided on 7 September 2016 that a CPO should be made but, following pressure (including the 27,000 signature Defend Our Den campaign), the decision was called in under the Council’s internal procedures and the Council’s cabinet is due to reconsider the decision at a meeting on 11 January 2017, albeit with, again, a recommendation that the Council should use its CPO powers. 
The issue has reached the national press, with a Guardian story  on 5 January breathlessly headlined “Millwall admit council scheme could force club to leave Lewisham”. The Council has published its own Questions and Answers  document.
Three different stories, from three different leagues. But familiar themes. How can clubs’ reasonable needs and the aspirations of their fans be mediated as against other planning objectives? And who determines need?
Simon Ricketts 7.1.17
Personal comments, et cetera

First World Problems: Basements

Does anyone actually need to excavate a basement? Despite, or because of, the cheek by jowl impacts on neighbours arising from the construction process and/or concerns as to structural implications, basement excavation does have one benefit – of regularly testing various areas of planning law. 
Permitted development rights
We have yet to see whether Team Javid/Barwell have the same enthusiasm for permitted development rights as Team Pickles/Lewis, with their three tier approach to development management: permitted development rights without the need for prior approval; permitted development rights with the need for prior approval where specific issues arise, and planning permission “for the largest scale development” (budget, 2014). 
Basement development exposes the difficulties with the permitted development process. Indeed the case of Eatherley v London Borough of Camden  (Cranston J, 2 December 2016) has blown a huge hole in the concept of permitted development rights as its conclusions could be applied to all but the most minor forms of development. It will surely have implications for the Government’s more ambitious, but currently stalled permitted development proposals summarised in my 15.6.16 blog post  .
As summarised by Cranston J, the central issue was “a question about the extent to which subterranean development can be carried out relying on the current regime of permitted development rights. The question is of general interest but arises particularly frequently in central London because of economic and social factors, in general terms, the increasing pressure for space. It is a matter of controversy in the planning world and there is a split between local planning authorities as to the correct answer”. 
Class A, Part 1, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 grants deemed permission for the “enlargement, improvement or other alteration of a dwellinghouse” subject to defined limitations. 
The judge held that the proposals involved excavation works which, as a matter of fact and degree, constituted “an engineering operation” which did not benefit from any permitted development right:
“In my judgment the planning committee asked itself the wrong question with its focus on the works being “entirely part” of the overall development, which would “by necessity” involve engineering works. It concluded that because this was the case it followed that the works did not constitute a separate activity of substance. That is not the approach laid down in the authorities. The Council’s conclusion that the engineering works were not a separate activity of substance followed from a misdirection. It should not have asked itself whether the engineering works were part and parcel of making a basement but whether they constituted a separate activity of substance. The Council needed to address the nature of the excavation and removal of the ground and soil, and the works of structural support to create the space for the basement.” 
So now, objectors to projects that are being pursued in reliance upon permitted development rights will be alert to elements of the works that can be said to be engineering works that would require a separate planning permission. 
The judgment is topical – in November 2016, DCLG published Basement Developments and the Planning System – Call for Evidence  which “seeks evidence on the number of basement developments being taken forward: how these developments are currently dealt with through the planning system; and whether any adverse impacts of such developments could be further mitigated through the planning process. This review is not considering whether or not basement development should be permitted, but rather how the planning process manages the impacts of that development where it is permitted. ” The deadline for consultation responses is 16 December 2016.
Other uncertainties of the (similarly worded) equivalent part of the predecessor Order were considered in Royal Borough of Kensington and Chelsea v Secretary of State  (Patterson J, 17 June 2015):
 – whether the limitation in the Order if “the enlarged part of the dwelling house would have more than one storey” is referring to the dwelling house as enlarged by development, i.e. includes the original dwelling house, or whether it is referring to that part of the dwelling house permission for which is given by Class A of the GPDO. The judge held that it was the latter, simply excluding anything more than a single level basement.
– whether the limitation in the Order if “the enlarged part of the dwelling house would be within 7 metres of any boundary of the curtilage of the dwelling house opposite the rear wall of the dwelling house” is referring to the dwelling house being developed, i.e. the application dwelling house, or to another dwelling house opposite the dwelling house being developed”. The judge held that it was the former. 

Article 4 directions
One clear flaw in the Government’s reliance on permitted development rights is the relative ease with which LPAs can disapply the process through Article 4 directions (without giving rise to any rights to compensation if the direction is expressed to come into force at least a year after it is made). In relation to both of the cases referred to above the relevant LPAs have now put directions in place.
On 3 October 2016 the London Borough of Camden confirmed a direction made under Article 4(1) of the GPDO, covering the whole of the borough. From 1 June 2017 planning permission will be required for basements. The direction covers: 
“The enlargement, improvement or other alteration of a dwellinghouse by carrying out below the dwellinghouse or its curtilage of basement or lightwell development integral to and associated with basement development, being development comprised within Class A, Part 1 of Schedule 2 to the Order and not being development comprised within any other Class.” 

The Royal Borough of Kensington and Chelsea made an Article 4 direction on 19 March 2015 which came into force a year later.
Restrictive policies
To the extent that planning permission is required, where the proposed works fall outside the scope of permitted development rights, LPAs have been tightening their policies so as to be able to take a more restrictive approach. 
Lisle-Mainwaring v Royal Borough of Kensington and Chelsea  (Lang J, 24 July 2015) was an application (supported by a basement excavation contractor!) to quash RBKC’s adoption of a revision to its development plan so as to include a basements planning policy  , claiming that the council and the plan inspector “failed to take account of a material consideration, namely the permitted development rights for basement development, and the risk of greater reliance on them if the BPP were adopted, without the benefit of any planning control over construction noise and loss of amenity”, failed to consider “reasonable alternatives” to the policy under the SEA Directive and failed to consult adequately on the new policy. (Ms Lisle-Mainwaring also of course painted her house in candy-cane stripes as part of a bizarre protest against opposition to her proposed three storey basement, thereby creating even more work for the planning bar). 
The 2015 basements policy prevented double basements in most circumstances and restricted the construction of basements under the garden to no more than 50% of the garden area (previously 85%). RBKC has since adopted, on 14 April 2016, a more detailed basements SPD  as well as a code of practice on noise, vibration and dust 
(Of course, policies should not be applied regardless of specific circumstances. By a decision letter dated 18 September 2015  an appeal was allowed for a double basement as part of the redevelopment of the former Kensington Tavern site, albeit partly on the basis of a fallback position by virtue of existing planning permissions). 
First world problems
Celebrity super basements are of course a particular headache for RBKC. 
Brian May continues to lobby  and litigate  against, we have had Jimmy Page reportedly  objecting to a super basement proposal by Robbie Williams, and of course the saga of Foxtons founder’s plans for “new subterranean space for leisure facilities to include a swimming pool and conversion of the existing undercroft into a car museum” at his home in Kensington Palace Gardens, opposed by, amongst others, the French and Japanese embassies and Indian High Commission. 
The dispute as to whether planning permission and listed building consent for the works had been validly implemented and whether lawful development certificates had been lawfully issued came to court in Government of the Republic of France v Royal Borough of Kensington and Chelsea  (Holgate J, 27 November 2015), with the court finding for Hunt. I believe that the case is now heading to the Court of Appeal.
It all makes for interesting press of course – and certainly interesting law – but would most of us would choose to spend our money three storeys down were we to win life’s lottery? 
Simon Ricketts 5.12.16
Personal views, et cetera