“We Can Take Some Of The Edges Off That Are Upsetting People”

A personal rant, with apologies. Did you see that quote in the Daily Mail about the long awaited Planning Bill?

“A Government source said ministers would be in ‘listening mode’ on the issue when Parliament returns in September, adding: ‘We’ll listen and we’ll move.

We can take some of the edges off that are upsetting people and still get some important changes through.

‘The bottom line is we have got to get more houses built. The average age of a first-time buyer is 34. We have to get that down and give younger people a chance to get a stake in society.’”

Listening to whom, do we think? Backbench Conservative MPs of course and voters in relevant constituencies of course. Anyone else? Shrugging shoulders emoji.

Does the Government really believe that it can make changes that materially accelerate the delivery of homes, without upsetting voters and therefore backbench Conservative MPs? (I’m only focusing on the Conservative party because it is in Government – Labour MPs are hardly falling over themselves either to support development in their constituencies, and as for the Liberal Democrats…). I see it all around me, the social norm/knee jerk reaction to a development proposal being to object and being to assume that everyone else will want to object too – whether green field development (it should be on a brown field site) or the development of a brown field site (oh not there, too high, setting, infrastructure etc etc). Of course it is hoped that exhortations as to design will make a difference in making development less unpopular, but, even travelling optimistically, that is going to take a long long time.

So what are the “edges” that are going to be taken off the white paper proposals?

It’s obvious isn’t it? No doubt the idea that national housing targets will actually, perish the thought, have to be planned for by each local authority on a local basis, let alone find their way through to consents and development, isn’t just out of the window, it’s jumped down onto the pavement and skipped half way down the street by now.

One leading rebel said: ‘If this ends up being a developers’ free-for-all, it will be utterly toxic for Tory MPs everywhere – not just in the South East.

‘If ministers get this wrong we can kiss goodbye to our new electoral success.

‘We will be doing the Lib Dems’ job for them across the Midlands, the South and the suburbs where we’ve had massive growth in recent years.

‘People are fed up. Being seen as the party concreting over our countryside or ramming housing estates into suburban green spaces will be electoral suicide. Boris needs to get a grip on this.’ Rebels want the idea of mandatory house-building targets replaced with voluntary ones.

They also want ministers to drop ‘growth zones’ in which planning applications would be automatically approved.”

Can we be clear: no-one I know in the development and planning world wants a fudged, bodged, old failed ideas re-branded, camel of a Planning Bill. Forget the whole thing rather than waste valuable time on a set of reforms based on political trade-offs and trying to be all things to all people. If as a politician you can’t focus on the objectives – climate change, providing everyone with a decent home, a functioning economy – because you’re just worrying about holding onto power and a job, forget it, don’t even start: with that frame of mind you will make things worse not better.

Without (1) a clear articulation of how many homes need to be built across the country, with a published evidence base to support that number (whether that’s 300,000 a year, or lower, or – probably – higher) and (2) those numbers somehow being divided out across the country without local opportunities for prolonged delays, obfuscation and special pleading (a year on from the white paper it is still really difficult to work out how this can be done), the system will continue to meander on its way – through the interminable plan making local politics, through the lengthy, unpredictable, too detailed and yet too light touch, examinations and through the inevitable court challenges.

The incoming coalition government in 2010 tore up top-down planning, in the form of the regional strategies, before the system even had time to prove itself. Yes it was an slow and over-engineered process, but there was at least the opportunity for democracy at the regional level in setting and apportioning numbers. The return to a bottom up approach, together with the let’s cross our fingers and rely on the duty (not really) to co-operate, and with a semi voluntary, almost unmappable, ad hoc patchwork of local authority combinations and alliances, has led to local plans being mired in endless debates as to numbers. Even with a supposedly standard method for calculating local housing need, those endless debates continue in every green belt local authority area – see Cherwell Development Watch Alliance v Cherwell District Council & Secretary of State (Thornton J, 30 July 2021) for the most recent example.

How are we going to get out of that mire, plan quickly and positively, stabilise spiralling house prices, reduce the age at which adult working offspring can leave the parental home to live somewhere convenient (let alone buy their own home – that’s a first world problem compared to the need for an affordable home in the first place), if local housing numbers are going to be left for local authorities and communities to determine?

Pray tell, “Government source”.

Simin Ricketts, 6 August 2021

Personal views, et cetera

Two great clubhouse Planning Law Unplanned events coming up:

⁃ 6pm Tuesday 10 August: Stonehenge road tunnel consent quashed: why, how, what next – discussion led by junior counsel to Save Stonehenge, Victoria Hutton. Link to invitation here.

⁃ 6pm Tuesday 17 August: AN END TO UGLY: The Office for Place & NMDC unpacked – special guests Nicholas Boys-Smith (chair, Office for Place), Dr Chris Miele (Montagu Evans) and Vicky Payne (URBED). Link to invitation here.

People In Houses…

…really don’t want other people to have houses, do they?

FT, 19 June 2021
Times, 19 June 2021
Telegraph, 19 June 2021

The prime minister can hardly be surprised when the affluent home-owning constituents of Chesham and Amersham register a protest vote against his plans for change, thinking that in some way he is coming for their beautiful part of the country, even though it bristles with statutory protections from development. First there has been the insensitivity with which HS2 has been forced through the Chilterns AONB with the case for longer tunnelling rejected (see my 30 July 2016 blog post HS2: The Very Select Committee) and secondly, as hitherto loyal Conservatives, they will have taken the prime minister at his word when with typical hyperbole he said in his foreword to last August’s white paper:

“Thanks to our planning system, we have nowhere near enough homes in the right places. People cannot afford to move to where their talents can be matched with opportunity. Businesses cannot afford to grow and create jobs. The whole thing is beginning to crumble and the time has come to do what too many have for too long lacked the courage to do – tear it down and start again.

That is what this paper proposes.

Radical reform unlike anything we have seen since the Second World War.

Not more fiddling around the edges, not simply painting over the damp patches, but levelling the foundations and building, from the ground up, a whole new planning system for England.”

“And, above all, that gives the people of this country the homes we need in the places we want to live at prices we can afford, so that all of us are free to live where we can connect our talents with opportunity.

Getting homes built is always a controversial business. Any planning application, however modest, almost inevitably attracts objections and I am sure there will be those who say this paper represents too much change too fast, too much of a break from what has gone before.

But what we have now simply does not work.

So let’s do better. Let’s make the system work for all of us. And let’s take big, bold steps so that we in this country can finally build the homes we all need and the future we all want to see.”

How easy it must be for other parties and for campaign groups to scaremonger when such coarse analogies are used – war, tearing things down, levelling foundations, building from the ground up.

The paper itself was not nearly as radical as the foreword would suggest and we have seen no further detail since. And so he is now on the defensive:

The Independent, 18 June 2021

“What we want is sensible plans to allow development on brownfield sites. We’re not going to build on greenbelt sites, we’re not going to build all over the countryside.”

[What does this even mean? Of course there will continue to be green field development, and of course some green belt development – as there is under the current system].

This is such an unnecessarily controversial issue, carelessly caused, cynically amplified. The planning system doesn’t need to be torn up and was never going to be torn up. But where have the ministers been to explain, to persuade, to engage? Instead, a resounding, almost embarrassed, silence since that August 2020 white paper. The news vacuum as to the form that changes are likely to take has of course been filled with media speculation and campaigners’ characterisations which have now served to make the whole question more political than it ever needed to be.

We all know that what is needed is for the current planning system to work better, largely through clearer carrot and stick policies, through specific process improvements and simplifications – and with better resourcing. So as to deliver, yes, more homes, yes economic growth, yes in a planned way, yes meeting environmental and social, not just economic, goals. But none of that’s going to happen now is it? Because politics is all about retaining power, and planning is dependent on politics. So if you are relying on the planning system to enable you to move out of your parents’ house or out of an HMO; to start a family, or to grow a business, you know what? Your needs don’t matter. Not against the needs of a politician who doesn’t want to be the next Peter Fleet.

All this of course means that the current system needs to continue to work as best it can. The good news is that at least this week we had that Colney Heath appeal decision letter to demonstrate that the entire system is in fact not in total meltdown. If an area is without an up to date plan, with a severe unmet housing need, with need for affordable housing and for sites for self build homes, planning permission may be granted even if the land is, horror of horrors, politicians look away, green belt. My firm Town (well, my colleague Paul Arnett) was pleased to play at least a small role in the appeal as planning solicitors for the appellant, negotiating a section 106 agreement with the St Albans and Welwyn Hatfield councils that secured a commitment that 45% of the 100 homes proposed would be affordable housing and 10% would be self-build, delivering a strategy first formulated by Chris Young QC and developed and implemented at the inquiry itself by Zack Simons (who kindly brought us onto the team). Russell Gray at Woods Hardwick was the lead planning witness and coordinated the team.

Inspector Christa Masters determined that the following were “very special circumstances” that justified inappropriate development in the green belt:

provision of market housing

“I am aware of the Written Ministerial Statement of December 2015 which indicates that unmet need is unlikely to clearly outweigh harm to Green Belt and any other harm so as to establish very special circumstances. However, in common with the appeal decision referred to, I note that this provision has not been incorporated within the Framework which has subsequently been updated and similar guidance within the Planning Practice Guidance has been removed. I can therefore see no reason to give this anything other than little weight as a material consideration.

It is common ground that neither SADC or WHBC can demonstrate a five year supply of deliverable homes. Whilst there is disagreement between the parties regarding the extent of this shortfall, the parties also agreed that this is not a matter upon which the appeals would turn. I agree with this position. Even taking the Councils supply positions of WHBC 2.58 years and SADC at 2.4 years, the position is a bleak one and the shortfall in both local authorities is considerable and significant.

There is therefore no dispute that given the existing position in both local authority areas, the delivery of housing represents a benefit. Even if the site is not developed within the timeframe envisaged by the appellant, and I can see no compelling reason this would not be achieved, it would nevertheless, when delivered, positively boost the supply within both local authority areas. From the evidence presented in relation to the emerging planning policy position for both authorities, this is not a position on which I would envisage there would be any marked improvement on in the short to medium term. I afford very substantial weight to the provision of market housing which would make a positive contribution to the supply of market housing in both local authority areas.”

⁃ provision of self-build

“In common with both market housing and affordable housing, the situation in the context of provision of sites and past completions is a particularly poor one. To conclude, I am of the view that the provision of 10 self build service plots at the appeal site will make a positive contribution to the supply of self build plots in both local planning authority areas. I am attaching substantial weight to this element of housing supply.”

⁃ provision of affordable housing

“The uncontested evidence presented by the appellant on affordable housing for both local authorities illustrates some serious shortcomings in terms of past delivery trends. In relation to WHBC, the affordable housing delivery which has taken place since 2015/16 is equivalent to a rate of 23 homes per annum. The appellant calculates that the shortfall stands in the region of 4000 net affordable homes since the 2017 SHMA Update, a 97% shortfall in affordable housing delivery. If the shortfall is to be addressed within the next 5 years, it would required the delivery of 1397 affordable homes per annum. In SADC, the position is equally as serious. Since the period 2012/13, a total of 244 net affordable homes have been delivered at an average of 35 net dwellings per annum. Again, this equates to a shortfall also in the region of 4000 dwellings (94%) which, if to be addressed in the next 5 years, would require the delivery of 1185 affordable dwellings per annum.

The persistent under delivery of affordable housing in both local authority areas presents a critical situation. Taking into account the extremely acute affordable housing position in both SADC and WHBC, I attach very substantial weight to the delivery of up to 45 affordable homes in this location in favour of the proposals.”

I recommend Zack’s 15 June 2021 blog post Notes from the Green Belt: what’s so very special about Colney Heath?

I also recommend Chris’ earlier paper Winning an inquiry: it’s the benefits, stupid.

More decisions such as Colney Heath are inevitable where authorities, admittedly struggling at times with a sclerotic local plans system, fail to deliver, which of course makes this scaremongering about a new planning system so nonsensical.

Topically, at 6pm this Tuesday 22 June our Clubhouse Planning Law, Unplanned theme is “How can we build enough, affordable, housing?”. Our special guests are Chris Young QC, Nick Walkley (ex Homes England chief executive), Claire Dickinson (director, Quod) and Ric Frankland (founder, wudl.). Please join us. A free link to the app and event is here.

Simon Ricketts, 19 June 2021

Personal views, et cetera

“Our Number One Domestic Priority”: Taking Stock

I tweeted that yesterday was the 5th anniversary of my first simonicity blog post. 273 posts later and 496,000 words (War and Peace = 587,000 words) and to what effect?

As I also said, it can be deflating to look back. So many posts expressing frustration about the same topics, yes obviously CIL, but also the recurring debates as to how to address the country’s housing crisis and as to what the obstacles are: is it the planning system or are other factors at play? Something Must Be Done. But what?

Unpacking Use It Or Lose It (16 July 2016) was one of my first posts. It referred to that week’s House of Lords Economic Affairs Committee’s report, Building More Homes.

“Paragraphs 129 to 139 of the report’s section on Planning Reform set out the “criticism made of the large house builders…that they hold land suitable and with permission for building, yet build at a slow pace and thus maximise the profit from each development”.

The conclusion is arrived at:

“139.We recommend that local authorities are granted the power to levy council tax on developments that are not completed within a set time period. This time period should be negotiated when planning consent is sought and be varied according to the size and complexity of a development. To ensure that the local authority also has an incentive to accelerate the process, the clock should start to run only when the local authority has signed off all conditions and obligations“.”

The allegation that house builders hold unnecessarily large land banks, going slow to maximise profits, was considered in detail by Oliver Letwin in his 2018 review. Incidentally, a constant theme of my blog posts over the last five years has been reviews commissioned by the Government the recommendations of which it then ignores – my first ever post, on 3 June 2016, was about the recommendations of the CIL independent working group (sensible recommendations, ignored by Government) – and Oliver Letwin’s recommendations in his final report (summarised in my 3 November 2018 blog post Oliver’s Twist: Letwin’s Proposals For Large Housing Sites) were of course similarly ignored, but perhaps the findings in his earlier interim report (June 2018) were more interesting, where he rejects that land banking allegation:

“5.40 It is of course true that, although the land market can be highly volatile, land (unlike most assets) does not depreciate, and has generally tended to increase in value across the cycle, and has a ‘real option’ value. By holding rights over land that benefits from (or is soon likely to benefit from) some form of permission to build houses, the company which holds that land obtains a valuable ability to make profit by building on it at whatever time is thought likely to maximise the profitability of doing so. It would therefore be perfectly possible for financial investors of a certain kind to seek to make a business out of holding land as a purely speculative activity.

5.41 But I cannot find any evidence that the major house builders are financial investors of this kind. Their business models depend on generating profits out of sales of housing, rather than out of the increasing value of land holdings; and it is the profitability of the sale of housing that they are trying to protect by building only at the ‘market absorption rate’ for their products. I have heard anecdotes concerning land owners who seek to speculate in exactly this way by obtaining outline permission many years before allowing the land to have any real development upon it – and I am inclined to believe that this is a serious issue for the planning system. But it is not one that is consistent with the business model of the major house builders.

And yet here comes the allegation again in an 8 May 2021 Local Government Association press statement: Over 1.1 million homes with planning permission waiting to be built – new LGA analysis. “The LGA is calling for councils to be given powers in a Planning Bill in the Queen’s Speech to incentivise developers to build housing more quickly. Latest figures show that 2,782,300 homes have been granted planning permission by councils since 2010/11 but over the same period only 1,627,730 have been built.”

And look at their proposal, which harks back (without reference to it) to the rejected idea in that 2016 House of Lords Economic Affairs Committee Report. They say:

While there will be in some cases legitimate reasons as to why development has stalled, and it is recognised that there is a time lag between permission being granted and homes being built, new build completions have only increased by just over half as much in that time. The LGA, which represents councils, says this shows that planning is not the barrier to house-building and that it is the housing delivery system that needs to be reformed.

To help councils get developers building more quickly, the Queen’s Speech should bring forward legislation that enables councils to charge developers full council tax for every unbuilt development from the point the original planning permission expires.”

Lichfields’ Matthew Spry rebuts the idea again in his 26 May 2021 blog post Use it or lose it: the taxing problem of undelivered homes.

The wider assertions in the Local Government Association press statement that sufficient planning permissions are already being granted to achieve the Government’s target of 300,000 net additional homes a year are tackled in Lichfields subsequent report, “Taking stock: The geography of housing need, permissions and completions”, published on 1 June 2021, commissioned by the Land Promoters and Developers Federation and the Home Builders Federation. Indeed they conclude that the necessary annual figure to achieve that target is 520,000.

The report represents the first stage of their work: “Analysis of how the number of homes with planning permission relates to housing need and delivery in different parts of the country through a comparison of housing need (either as per the standard method or recently adopted local plans), planning permissions and completions at a regional and housing market area level”.

We await stages 2 and 3:

“2. Assessing how the stock of permissions relates to housebuilder pipelines, rates of build out and the number of extra sites required to meet the government’s ambition; and

3. An analysis of what happens to the stock of permissions for a number of local authority case studies. This is a more in-depth ‘deep dive’ exploration on how the stock of permissions granted is linked to the number of homes completed within a given timescale by monitoring the land supply positions across the authorities over a five year period”

It is a great shame that MHCLG has not provided any detailed methodology to support the national target of 300,000 net additional homes a year. If anything it may be an under-estimate (see the 14 January 2021 House of Commons briefing paper Tackling the under-supply of housing in England) but surely it needs underpinning to avoid any assertion that it is too high. The background to the figure is mentioned in my 10 February 2018 blog post Nothing Was Delivered – the immediate context at the time being the first meeting of then prime minister Theresa May’s “housing implementation taskforce” (always good to have a taskforce). You recall Mrs May’s promise that the housing crisis would be her “number one domestic priority”? Roll forward three years: Theresa May leads Tory revolt over push for new housing (The Times, 12 May 2021).

What has got in the way of a sensible debate as to how we might resolve this country’s housing crisis since I started this blog? Politics. What might get us out of it? Action based on robust factual analysis.

Simon Ricketts, 4 June 2021

Personal views, et cetera

This week’s Clubhouse Planning Law, Unplanned discussion examines the Lichfields Taking Stock report. We will be joined by Lichfields’ Matthew Spry , together with the LPDF’s chairman Paul Brocklehurst, Lambert Smith Hampton’s Mary-Jane O’Neill, the BPF’s Sam Bensted, Blackstock Consulting’s Joshua Carson and our brilliant usual panel. Do tune in to join the discussion, or just to listen. This is a free invitation to the app.

Moving Into First Homes: 3 Key Deadlines

The Government’s First Homes announcements this week mean that we all need to understand the practicalities as to how this new form of discounted market sale housing will work and to plan around three key implementation dates.

On 24 May 2021 we had the formal ministerial statement together with the publication of MHCLG guidance providing “further detail on First Homes and their implementation”. For prospective purchasers there is also the Government’s Own Your Own Home website.

The three key dates are as follows:

28 June 2021

From the guidance: “ Local plans and neighbourhood plans submitted for examination before 28 June 2021, or that have reached publication stage by 28 June 2021 and subsequently submitted for examination by 28 December 2021, will not be required to reflect the First Homes policy requirement

(However: “Planning Inspectors should consider through the examination whether a requirement for an early update of the local plan might be appropriate.”)

28 December 2021

From the guidance: “The new First Homes policy requirement does not apply for the following:

sites with full or outline planning permissions already in place or determined (or where a right to appeal against non-determination has arisen) before 28 December 2021

28 March 2022

It also does not apply to “applications for full or outline planning permission where there has been significant pre-application engagement which are determined before 28 March 2022”.

So if you wish to avoid the new requirement and you are not in an area where a plan has been adopted under the transitional arrangements, you need to have submitted your application so that it will be determined (or so that that the statutory right to appeal on the basis of non-determination has arisen) by 28 December 2021 and if there is any doubt as to whether you will meet that deadline it would be prudent to have engaged in “significant pre-application engagement” such that the deadline for achieving permission is 28 March 2022.

“If an applicant wishes to amend a planning application to include First Homes which is already submitted and likely to be granted before these dates, the local planning authority should be flexible in accepting First Homes as an alternative type of tenure.

Local authorities should have flexibility to accept alternative tenure mixes for planning applications that are determined within the timescales identified above, although they should consider whether First Homes could be easily substituted for another tenure, either at 25% or a lower proportion.”

From the guidance:

What is a First Home?

First Homes are a specific kind of discounted market sale housing and should be considered to meet the definition of ‘affordable housing’ for planning purposes. Specifically, First Homes are discounted market sale units which:

a) must be discounted by a minimum of 30% against the market value;

b) are sold to a person or persons meeting the First Homes eligibility criteria […];

c) on their first sale, will have a restriction registered on the title at HM Land Registry to ensure this discount (as a percentage of current market value) and certain other restrictions are passed on at each subsequent title transfer; and,

d) after the discount has been applied, the first sale must be at a price no higher than £250,000 (or £420,000 in Greater London).

First Homes are the government’s preferred discounted market tenure and should account for at least 25% of all affordable housing units delivered by developers through planning obligations.”

….

“Who is eligible to purchase a First Home?

A purchaser (or, if a joint purchase, all the purchasers) of a First Home should be a first-time buyer as defined in paragraph 6 of schedule 6ZA of the Finance Act 2003 for the purposes of Stamp Duty Relief for first-time buyers.

Purchasers of First Homes, whether individuals, couples or group purchasers, should have a combined annual household income not exceeding £80,000 (or £90,000 in Greater London) in the tax year immediately preceding the year of purchase.

A purchaser of a First Home should have a mortgage or home purchase plan (if required to comply with Islamic law) to fund a minimum of 50% of the discounted purchase price.

These national standard criteria should also apply at all future sales of a First Home.”

…..

How should the remaining 75% of affordable housing be secured through developer contributions?

Once a minimum of 25% of First Homes has been accounted for, social rent should be delivered in the same percentage as set out in the local plan. The remainder of the affordable housing tenures should be delivered in line with the proportions set out in the local plan policy.

For example, if a local plan policy requires an affordable housing mix of 20% shared ownership units, 40% affordable rent units and 40% social rent units, a planning application compliant with national policy would deliver an affordable housing tenure mix of 25% First Homes and 40% social rent. The remainder (35%) would be split in line with the ratio set out in the local plan policy, which is 40% affordable rent to 20% shared ownership, or 2:1. 35% split in this way results in 12% shared ownership; and 23% affordable rent.

In another example, if a local plan policy requires 80% of units to be shared ownership and 20% to be social rent, a policy compliant application would deliver 25% First Homes units, 20% social rent and 55% shared ownership.

If a local authority has an up-to-date policy on cash contributions in lieu of onsite contributions, then a planning application compliant with national policy will align with this approach.”

The requirement will be secured by our trusty friend, the section 106 agreement (or unilateral undertaking). The guidance states: “The government will publish template planning obligations for this purpose, which the local planning authority can use as a basis for agreements prepared locally.” A workable template (stress the word “workable”) would be very useful indeed.

How will this policy mechanism work across very different housing market areas across the country and what might be the unintended consequences? I recommend an excellent Lichfields blog post, First Homes: dicing with the discount (Rachel Clements and Bethan Haynes, 27 May 2021).

They ask where can First Homes potentially have the biggest impact?

“First Homes have the potential to have the greatest impact in areas where first-time buyers are currently priced out of the open market (at the entry-level) but where First Homes would be within reach, when the minimum 30% discount is applied. We estimate this represents around one in five authorities in England – around 63 in total.”

Will it avoid the problems that caused the previous Starter Homes concept to fail (e.g see my 29 February 2020 blog post Starter Homes Were A Non Starter – What Future For First Homes?)? What do we make of this continuing political decision to intervene in the market in the interests of encouraging home ownership at the expense (where viability is impacted) of affordable housing for rent, for those on a lower rung of the housing ladder?

There is plenty more to say on the subject, for instance the new opportunity arising to bring forward First Homes exception sites on allocated land outside the green belt or designated rural areas. But for now, I suspect that developers and local planning authorities alike will be wanting to do some basic number-crunching and to bear those three deadlines in mind.

Simon Ricketts, 28 May 2021

Personal views, et cetera

This Tuesday evening’s Planning Law, Unplanned Clubhouse session (6pm, 1 June) takes on a more general subject: “Has work taken over your life? Life hacks, work hacks”. Do come along and share your views, or just listen to the chat. An invitation to the app is here.

Forthcoming Commercial To Resi Rules Tightened After Consultation

I have taken care over the heading of this piece about the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021, laid before Parliament on 31 March 2021, which introduces a new class MA into the GPDO, granting deemed planning permission for change of use from commercial and business use (class E) to residential (class C3) from 1 August 2021.

I have taken care because so much of the noise this week was about how the Government hasn’t listened to the responses it received to its 3 December 2020 consultation paper, whereas for me the news is that it has listened to much of the criticism it received. The final form of the regime is significantly constrained compared to the consultation version. Give credit where credit’s due!

I summarised the initial proposal in my 4 December 2020 blog post, E = C3, expressing a number of concerns. Responses to the consultation from all quarters expressed equivalent concerns – some of course going further, in questioning more fundamentally the role of the permitted development rights process.

Aside from the Order itself which saw the light of day later on that day, we have the 31 March 2021 press statement (at the now traditional one minute past midnight) and the Government’s response to the consultation process.

The RTPI and others were tweeting their reactions before the Order had even been published on line (although to be fair the headlines were in the press statement). A joint letter was sent yesterday, 1 April 2021, to the prime minister by the RTPI, RIBA, RICS and CIOB. I acknowledge that many have “in principle” concerns about the availability of fast-track permitted development rights procedures but isn’t the letter somewhat of an over-reaction? What do members of those organisations think? Call me a defeatist pragmatist, but the proposals could have been so much worse!

These were the Government’s objectives, as they were stated in the December consultation document:

“In his ‘Build, Build, Build’ statement of 30 June 2020 the Prime Minister said that we would provide for a wider range of commercial buildings to be allowed to change to residential use without the need for a planning application. To meet this aim, support housing delivery and bring more residential use into our high streets and town centres, boosting footfall and creating additional demand, we propose to introduce a new national permitted development right for the change of use from the new Commercial, Business and Service use class to residential use. The new right would help support economic recovery, housing delivery and the regeneration of our high streets and town centres.”

The proposals were always intended to be introduced much more quickly than the proposals in last year’s planning white paper – after all existing permitted development rights expire on 31 July 2021 in relation to changes of use from the classes that went to form the new class E:

“While Planning for the future sets out our longer-term ambitions, we want at the same time to continue to explore more immediate changes to the planning system to provide greater planning certainty and flexibility to ensure that it can effectively contribute to some of the immediate challenges facing the country.”

It is also worth remembering that the rights which expire on 31 July already include rights to convert offices (no floorspace limit), light industrial (500 sq m floorspace limit) and retail (150 sq m floorspace limit). The rules to be introduced from 1 August allow greater flexibility in a number of respects but are also significantly tighter than the existing rights in various ways.

My colleague Tom Brooks has prepared a detailed client summary in relation to all of the PD changes within the Order (this blog post is only dealing with class MA rather than the other excitements within). If you message or email me I will send it to you next week, but for the purposes of this blog post I set out below the Government’s summary of the proposed changes:

“We will introduce a new national permitted development right to create new homes through the change of use from Commercial Business and Service uses. The right will:

• have effect from 1 August 2021

• be subject to a size limit of 1,500 sq m of floorspace changing use

• apply to buildings that have been in Commercial, Business and Service uses for two years, including time in former uses now within that class

• apply to buildings that have been vacant for at least three continuous months

• apply in conservation areas, but not in other article 2 (3) land such as National Parks and Areas of Outstanding Natural Beauty

• be subject to prior approval by the local planning authority on specific planning matters

• attract a fee of £100 per dwellinghouse.”

The consultation proposals had:

• no size limit (and this size limit cuts back on what can already be achieved via the existing office to resi PD right)

• no requirement that the relevant building should have been in commercial , business and service uses (i.e. any of the uses that now make up class E) for the two years leading up to the date of the application for prior approval (for offices to residential, the cut off point in the existing rules is 29 May 2013).

• no requirement that the building must have been vacant for the three months leading up to the date of the application for prior approval (a requirement which has not existed in relation to existing PD rights).

There is also now an express carry-forward to 1 August 2022 of existing article 4 directions that restrict office to residential permitted development rights – addressing what would have been a significant loophole (see e.g. my 7 February 2021 blog post Art 4 Life).

Prior approval requirements will still include transport, contamination, flooding, noise, and adequate natural light. As trailed in the consultation proposals, prior approval will be required, where relevant, as to the impact on the character or sustainability of a conservation area caused by the change of ground floor use of a building within a conservation area. Where relevant, prior approval will also be required as to the impact on the intended residential occupiers if the area is considered important for “general or heavy industry, waste management, storage and distribution, or a mix of such uses” and as to the impact on local provision if there is a loss of services provided by a registered nursery or health centre.

Prior approval applications will need to include a floor plan indicating “the total floor space in square metres of each dwellinghouse” (and remember that the Government’s nationally described minimum space standard applies to any schemes which are the subject of a prior approval application from 6 April 2021 in any event).

For the first time, notices will need to be served on on any adjoining owner or occupier and, where the proposed development relates to part of a building, on any owner or occupier of the other part or parts of the building.

Remember that there is no exemption from CIL for permitted development, the usual rules apply – although most commonly the in-use buildings exemption will apply if at least part of the building has occupied for a use which is lawful for at least six months continuously in the last three years.

Mitigation cannot be secured as to matters that are not the subject of the prior approval process, so PD residential development is still free from affordable housing and other social infrastructure commitments (e.g. contributions to the cost of education facilities), but remember that the scale of development now permitted, with the 1,500 square metres cap, is far lower than the scale of conversions of office buildings that we have previously seen. The horse has bolted on that one.

The new rights do not limit in any way the need for planning permission for external works to the building that materially affect its external appearance, so finger-pointing as against the Government’s “beauty” aspirations is misdirected in my view.

What concerns are we left with? Yes, the new rules will allow residential development in potentially unsustainable locations. Yes, the new rules will allow commercial frontages in high streets to be converted to residential use in a way which may harm the traditional function of town centres (although subject to the need for a separate planning permission for the external treatment of the building). Yes, the new rules do limit in practice the role of the local planning authority in determining what are appropriate uses for a particular area. Yes, there will still be room for uncertainty and “gaming” of the system, particularly around the vacancy requirement. Set against these concerns, are the Government’s objectives in terms of enabling more homes to be delivered quickly and in finding new uses for redundant commercial floorspace and is the need for us all to acknowledge the various protections that are now (at last) in place, seeking to ensure that accommodation is to be delivered to at least a minimum standard (e.g. size of homes, light) and seeking to reduce the potential for the new rights to lead to unintended outcomes (e.g the floorspace cap, vacancy requirement).

Where does the balance lie? Are there now sufficient checks and balances? Are we going to see a final rush to make prior approval applications under the existing rules? Join a number of us on Clubhouse for a discussion on this very subject – from 6pm on Tuesday 6 April.

Simon Ricketts, 2 April 2021

Personal views, et cetera

London Plans

Surely planning becomes a democratic irrelevance when the plan making process is slower than the electoral cycle? That’s pretty much the position in London. After all, Sadiq Khan wouldn’t have managed it if he hadn’t been gifted a further year in post by virtue of the postponement of the May 2020 elections.

Election: 7 May 2016. First consultation document: October 2016. Adopted plan 2 March 2021.

But it doesn’t have to be that way. In fact, it shouldn’t be this way. The plan “must deal only with matters which are of strategic importance to Greater London” (section 334(5), Greater London Authority Act 1999).

My 23 April 2017 blog post Make No Little Plans: The London Plan heralded the imminent publication of initial non-statutory consultation in relation to the new London Plan. The hope at that stage was to have an adopted plan in place by Autumn 2019. I referred to the 400 pages or so of the then current plan and expressed the hope that its replacement would be shorter. Hmm, not so.

One of the issues with this process has certainly been of the Mayor’s making – the sheer bloated nature of the plan, with its excessive layers of detail. What can be done to make sure that this never happens again?

But the other issue has not entirely been of the Mayor’s making. For the whole of his period in office he has faced opposition from Government, which has been placing pressure on him to increase planned housing numbers well beyond the already ambitious and probably unachievable numbers that he has been planning for. See for instance the previous Secretary of State’s 27 July 2018 letter and Robert Jenrick’s 13 March 2020 letter directing that a series of amendments be made to the draft plan.

“I had expected you to set the framework for a step change in housing delivery, paving the way for further increases given the next London Plan will need to assess housing need by using the Local Housing Need methodology. This has not materialised, as you have not taken the tough choices necessary to bring enough land into the system to build the homes needed.

Having considered your Plan at length my conclusion is that the necessary decisions to bring more land into the planning system have not been taken, the added complexity will reduce appetite for development further and slow down the system, and throughout the Plan you have directly contradicted national policy. As you know, by law you must have regard to the need for your strategies to be consistent with national policies.

For these reasons I am left with no choice but to exercise my powers to direct changes.

Your Plan must be brought to the minimum level I would expect to deliver the homes to start serving Londoners in the way they deserve. However, this must be the baseline and given this, I ask that you start considering the next London Plan immediately and how this will meet the higher level and broader housing needs of London.”

Then most recently, only after the Mayor had chased on 9 December 2020 for a response from Government to his April 2020 proposed amendments to address those March 2020 directions, the Secretary of State wrote again on 10 December 2020 with further directions.

But, to accentuate the positive, we now have an adopted new London Plan (542 pages of it).

This is a good Lichfields blog post on it. I did also like this Tom Pemberton post that summarised some of its implications in seven slides.

The whole process will now have to start again, as soon as we are past the 6 May elections, given the Government’s expectation of an immediate review to take into account the current NPPF and the housing numbers deriving from the revised standard method (including indeed its additional 35% figure for London and other major towns and cities). The new numbers are truly challenging/unrealistic (93,500 per annum as against the 52,000 figure in the new plan and annual delivery of less than 37,000).

What a political dilemma for the next Mayor to face – to broker some sort of solution with Government, boroughs, communities, authorities surrounding London and, for so long as there are going to be the range of onerous requirements that are set out in the new plan, developers and funders. On top of all the other challenges post-pandemic, post- Brexit and in the midst of a climate emergency.

And yet numerous candidates have thrown their hats in the ring for 6 May 2021 and we haven’t yet reached the 30 March deadline for delivery of nomination papers (fancy a go?).

I’m chairing a Planning Futures hustings event at 2pm on 9 March 2021, where we will have a number of the candidates or their representatives. It will focus on planning/housing/built environment policies. The event is free so do register and join me.

In preparation I did a little googling to see what the main candidates might be saying that might give some hope that the scale of the challenges ahead are publicly acknowledged.

⁃ Sadiq Khan’s campaign was launched on 4 March, focusing on listing the achievements of his first term rather than setting out any significant new direction or pledges.

⁃ Conservative candidate Shaun Bailey’s campaign website – 100,000 shared ownership homes to be sold at £100,000 each – a London Infrastructure Fund to fund long-term transport projects.

⁃ Green Party candidate Sian Berry’s campaign website – would set up “a People’s Land Commission to find small sites for new homes, green spaces and community support”. “In addition to using existing powers including compulsory purchase orders, I will also continue to lobby central Government for a devolved or national “community right to buy” which will create new rights for local community groups to buy any land or property that is neglected, empty and needed for community uses”.

Liberal Democrat party candidate Luisa Porritt’s campaign includes “homes in the heart of the city”, “a green roadmap” and “reinvent the high street”.

⁃ Women’s Equality Party candidate Mandu Reid: “Stand with us to make sure no woman is turned away from refuge, to close the pay gap in a generation, to balance work and family life for everyone, and to make London the first gender equal city in the world.”

⁃ UKIP candidate Peter Gammons will “will focus on new housing in every borough, holding developers accountable for providing affordable housing and prioritising Londoners.” He has apparently written a book, “London – a road map for recovery”, although I couldn’t find it on Amazon.

I think we need to get beyond these platitudes, and that is what I shall attempt to do on Tuesday….

Simon Ricketts, 6 March 2021

Personal views, et cetera

London, 1572. Those were the days.

Art 4 Life

Article 4 directions are a small but essential cog in the complicated machine that is the English planning system. With the more widespread reliance by Government on permitted development rights, it falls to local planning authorities to make article 4 directions to disapply, where appropriate, those rights in relation to specific types of developments and/or in specific areas.

From 1 August 2021, we are potentially approaching a breakdown in this machine in the face of the proposed class E to class C3 permitted development right which I wrote about in my 4 December 2020 blog post E = C3.

But first a few basic points to note about the way these cogs work:

1. Article 4 directions do not have to be approved by the Secretary of State but he can intervene where he considers that a direction is inappropriate.

2. Unless an article 4 direction takes effect at least a year after it was first publicised, in certain circumstances the authority can be liable to claims for compensation where someone can show they incurred abortive expenditure or otherwise suffered loss or damage as a result of the direction.

3. For permitted development rights where prior approval of certain matters is required before the right can be relied upon, the prior approval needs to be secured before the direction takes effect and needs to be completed within three years of prior approval.

The role of article 4 directions has increased with the gradual spread of “resi conversion” permitted development rights since 2013.

The office to residential permitted development right was first introduced in May 2013. At that time the legislation included a specific list of “excepted areas” within which the right did not apply, for instance London’s central activities zone. The Government was not adverse to threatening intervention where authorities sought to introduce blanket article 4 directions in relation to other areas, for instance its well publicised spat at the time with the London Borough of Islington.

In 2016 the right was made permanent. The list of excepted areas was scrapped but only as from 30 May 2019 so as to give affected authorities time to put article 4 directions in place as appropriate (see Lichfields’ 14 March 2016 blog post Office to Residential Permitted Development Right Made Permanent.

There is now indeed a patchwork of article 4 directions across the country, disapplying “resi conversion” permitted development rights in relation to many areas of the country. Focusing on central London, here is how the “offices to resi” rights is disapplied in RBKC and in Westminster for instance.

When Class E was introduced from 1 September 2020 (see my 24 July 2020 blog post E Is For Economy for more detail) existing permitted development rights were kept in place until 31 July 2021 (applying to what the uses would have been categorised as prior to the creation of Class E) so as to give the Government time to introduce new permitted development rights that apply to Class E.

The consultation period on the proposed new development rights closed on 28 January 2021 and the Government has come under fire from many quarters for the intended breadth of the new rights (for instance, here is the British Property Federation’s response). The statutory instrument to introduce the new rights (and in part replace the old rights, which will expire) has not seen the light of day and we are now around six months away from what might be termed PD-Day, 1 August 2021.

Some big questions arise and discussions within Town with Duncan Field and other partners and colleagues have been really useful. I’m not going to give away for free our entire Town “house view” but I’m just going to state the obvious:

⁃ the existing permitted development rights that attached to uses now within Class E will fall away after 31 July 2021, the end of the “material period” in the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020, unless secondary legislation extends the material period for those purposes, as a stop gap.

⁃ it is questionable whether existing article 4 directions would restrict the operation of any new permitted development rights that are introduced, even where the change is still, say, offices to residential (and some changes that, according to the Government’s consultation proposals, will now be possible are entirely new, e.g. restaurant, indoor sports hall or creche to residential).

⁃ As a matter of principle an article 4 direction cannot be made in relation to a future permitted development right, so authorities’ hands are tied until the statutory instrument containing the new rights is actually made.

⁃ plainly there is no time for authorities to give a year’s advance notice in relation to any new article 4 direction that is to take effect from 1 August 2021, so any more immediate restrictions would expose authorities to the risk of compensation claims (unless there is some specific transitional arrangement in the new rights, for instance if the new rights would permit development that before 1 August 2021 have been restricted by an article 4 direction, but that will not be straight-forward at all).

It is interesting that when the “excepted areas” system was abolished in 2016 authorities were given sufficient time to put article 4 directions in place. In the rush this time round, either this issue has been overlooked or the Government is seeking to sidestep the article 4 direction process and create some kind of gold rush for prior approvals before directions can be introduced and take effect. After all its antipathy towards article 4 directions in the “resi conversions” area, save where exceptionally justified, is plain from its recent consultation on proposed changes to the NPPF:

Article 4 directions

“We also propose clarifying our policy that Article 4 directions should be restricted to the smallest geographical area possible. Together these amendments would encourage the appropriate and proportionate use of Article 4 directions.”

“The use of Article 4 directions to remove national permitted development rights should

• where they relate to change of use to residential, be limited to situations where this is essential to avoid wholly unacceptable adverse impacts

• [or as an alternative to the above – where they relate to change of use to residential, be limited to situations where this is necessary in order to protect an interest of national significance]

• where they do not relate to change of use to residential, be limited to situations where this is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 directions to require planning permission for the demolition of local facilities)

• in all cases apply to the smallest geographical area possible.”

The flexibility introduced by permitted development rights is necessary and welcome but let’s not focus on that lever without making sure that there isn’t going to be an almighty crunch when it is pulled. What am I missing here folks?

Simon Ricketts, 27 February 2021

Personal views, et cetera

PS If you’re on Clubhouse, I’ll be joined by some other friendly planning solicitors, barristers and planners to talk about this and other topical planning law issues at 6pm on Tuesday 2 March, details here. Do join us!

Tilt!

Tilt” in pinball is an example of a good rule: in order to discourage an unwanted outcome (cheating), transgression (sloping the table) leads to a predictable penalty (game over).

The purposes of the NPPF’s “tilted balance” (the phrase just being planners’ jargon) are to discourage local planning authorities from:

⁃ relying on out of date local plans

⁃ not maintaining (potentially with an additional buffer) at least five years’ housing land supply (now watered down to a minimum of three years’ housing supply if there is an up to date neighbourhood plan that allocates land for housing development) and

⁃ (since the introduction of the housing delivery test) not ensuring that a defined number of homes are delivered each year.

Where the tilted balance applies, it should in many circumstances be easier for developers to secure planning permission which is not in accordance with the relevant local plan and/or neighbourhood plan, in that paragraph 11 (d) of the NPPF provides as follows:

“(d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless:

i. the application of policies in this Framework that protect areas or assets of particular importance 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.

There is a footnote to “out-of-date”: “This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, as set out in paragraph 73); or where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years.

There is another crucial footnote, to (d)i: “The policies referred to are those in this Framework (rather than those in development plans) relating to: habitats sites (and those sites listed in paragraph 176) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets (and other heritage assets of archaeological interest referred to in footnote 63); and areas at risk of flooding or coastal change.

Already, that description surely begins to raise obvious questions:

⁃ Is the rule sufficiently clear and understood, such that the risk of the penalty actually influences council members’ and officers’ decision making so as to discourage those unwanted outcomes: to encourage up to date plans, the maintenance of an adequate housing land supply, sufficient homes being built? If the public doesn’t understand it, it’s going to have no effect at the ballot box – so how do we expect it to influence councillors, for whom being seen to protect their local areas from change will usually be a more potent vote winner?

⁃ To what extent can the authority avoid those unwanted outcomes in any event, given for instance the slowness of the local plans system even for a authority wishing to make swift progress and given the reliance on the private sector not only to promote suitable sites but then proceed to build them out?

⁃ The footnote to (d)i reduces the impact of the rule in constrained areas which usually turn out to be those where the documented need for housing is greatest.

⁃ Should there be a different penalty other than to make it more likely that development will take place in a way which is unplanned for and often unpopular? What are the most direct “carrots and sticks” that could be deployed?

Four years ago this month my thoughts were wandering in these directions, while sitting in the Supreme Court in the Suffolk Coastal case, acting for Richborough Estates (thank you Paul Campbell and Chris Young). The case was a turning point in the consideration of how the tilted balance is intended to work. It relates to the original 2012 version of the NPPF but the principles still hold true. The judgment in Suffolk Coastal District Council v Hopkins Homes Limited, Richborough Estates Partnership LLP v Cheshire East Borough Council (Supreme Court, 10 May 2017) is a masterpiece in cutting through what had been a series of conflicting rulings by the lower courts as to how the tilted balance was to be interpreted in order to pull us all back to the basic principles. I tried to summarise them in a blog post at the time, but for instance:

⁃ Let’s not overstate the influence of the test: the NPPF is no more than “guidance” and is no more than a “material consideration” for the purposes of section 70(2) of the 1990 Act: “It cannot, and does not purport to, displace the primacy given by the statute and policy to the statutory development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme”. (Lord Carnwath, paragraph 21) (i.e. there’s a get-out so that a decision maker can determine that, notwithstanding the tilted balance, planning permission should not be granted).

⁃ Deprecation of the “over-legalisation of the planning process, as illustrated by the proliferation of case law on [the tilted balance]. This is particularly unfortunate for what was intended as a simplification of national policy guidance, designed for the lay-reader.” (Lord Carnwath, para 23) (i.e. the court will always be reluctant to interfere with the judgment arrived at by the decision maker).

⁃ As long as decision makers apply it lawfully (which means they first have to understand it – not easy!) the application of the tilted balance test engages matters of planning judgement, not legal interpretation. (i.e. legal challenges to the decision maker’s judgment, have to be based on unlawful or irrational reasoning on the part of the decision maker – never easy).

⁃ the basis for the test arises from the importance that the NPPF places on boosting the supply of housing. “The message to planning authorities is unmistakeable”. (Lord Gill, paragraph 77). He refers to “the futility of authorities’ relying in development plans on the allocation of sites that have no realistic prospect of being developed within the five year period”. (paragraph 78). (i.e. the test has a real world objective which we must not lose sight of – boosting the supply of housing).

⁃ “If a planning authority that was in default of the requirement of a five-years supply were to continue to apply its environmental and amenity policies with full rigour, the objective of the Framework could be frustrated”. (Lord Gill, paragraph 83). (i.e. the outcome of the test may well be that planning permissions are granted notwithstanding an authority’s policies – that’s the whole point of it).

The cases have kept coming. Already, in 2021, there have been no fewer than three rulings from the Court of Appeal – on a test in a non statutory policy document – this is surely ridiculous. Does this arise from its unnecessary complexity and “angels dancing on the head of a pin” abstractions, or from the way that in practice the so-called tilted balance hardly seems to provide any tilt at all, even in areas with a severe under-supply of housing, perhaps contrary to the original objective?

Three 2021 Court of Appeal cases:

Gladman Developments Limited v Secretary of State (Court of Appeal, 3 February 2021)

The case raised “two main issues: first, whether a decision-maker, when applying the “tilted balance” under paragraph 11d)ii, is required not to take into account relevant policies of the development plan; and second, as a connected issue, whether it is necessary for the “tilted balance” and the duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 to be performed as separate and sequential steps in a two-stage approach. There is a further issue: whether the “tilted balance” under paragraph 11d)ii excludes the exercise indicated in paragraph 213 of the NPPF, which requires that policies in plans adopted before its publication should be given due weight, “according to their degree of consistency with [it]“.

Answers from the court: no, no and (on the further issue) no.

R (Monkhill Limited) v Secretary of State (Court of Appeal), 27 January 2021)

The case raised “one principal issue […]: whether the inspector was wrong to interpret the first sentence of paragraph 172 of the NPPF, which says “great weight should be given to conserving and enhancing landscape and scenic beauty” in an AONB, as a policy whose application is capable of providing “a clear reason for refusing” planning permission under paragraph 11d)i of the NPPF.

Answer from the court: no.

Paul Newman New Homes Ltd v Secretary of State (Court of Appeal, 12 January 2021)

Ever since a NPPF was first introduced in March 2012, the interpretation of its provisions has provided a fertile hunting ground for planning lawyers. The 2018 version was intended to produce greater clarity and simplicity, but unfortunately it has not been entirely successful. The effect of the appellant’s argument was that if there is only one relevant policy in the local plan, the developer gets the benefit of the tilted balance (absent the operation of one of the exceptions). Mr Lockhart-Mummery eschewed any suggestion that this was a “numbers game” but he also very fairly accepted that it is virtually unknown for a single policy in a local plan to embrace all the material considerations that would suffice to enable a decision-maker to determine a planning application, especially if that application is to build houses.”

Answer from the court: no. (“… at the end of the day there is nothing inherently unfair to an applicant or contrary to the overall scheme of the NPPF or the 2004 Act, both of which afford primacy to the local plan, about the balancing exercise being carried out under section 38(6) in circumstances where an experienced Planning Inspector has found that there is a policy in the development plan that is relevant, important and up-to-date. For those reasons I would uphold the interpretation of Paragraph 11d) adopted by the Judge and applied by the Inspector).”

Housing delivery test:

The Government has now published the results of its 2020 housing delivery test measurement (19 January 2021). The figures are important, because if the housing delivery test indicates that the delivery of housing was less than 85% of the housing supply requirement over the last three years, a buffer of 20% has to be added to that requirement. If delivery was less than 75% of the housing requirement over the previous three years, that is a trigger for the application of the tilted balance.

As an adjustment to recognise at least to some extent to effects of Covid this past year, authorities’ requirements this year were reduced by a month.

This year there are (by my count) 55 authorities for whom the tilted balance applies following these latest measurements.

Has that featured in the relevant local press? What are authorities doing about it? I would be pleased to hear.

And what of the obvious flaw, highlighted by Zack Simons in his 21 January 2021 blog post Elephants in the Room: Green Belts vs. the Housing Delivery Test – the obvious correlation between green belt authorities and those that are failing the delivery test?

I just wonder whether it might not be better to sweep all of this complexity away and replace it with a policy that provides for an enhanced presumption in favour of development if relevant housing land supply figures are not met: the higher the shortfall, the more weighty the presumption? Leave the detail to decision makers, including to inspectors on appeal – attempts at greater prescription are doomed to fail and are not understood by the public.

There should also be additional consequences for authorities that fail to meet these targets, and their councillors – but also a new transparency on the part of the Government as to (1) the basis for its national target and (2) the need for frank annual reporting to Parliament as to its performance as against that target.

To encourage desirable outcomes, we need rules that everyone understands. Plan positively = great places. A failure to plan positively = intervention, remedial steps.

But enough of this quixotic tilting.

Simon Ricketts, 6 February 2021

Personal views, et cetera

Quantity Street Fudge

On 16 December 2020 the Government abruptly abandoned its proposed revised standard method for calculating local housing need, in the face of political and media pressure from those who saw the method increasing substantially the figure for their particular areas. I covered the consultation as to the proposed revised method in my 29 August 2020 blog post, asking whether we might see a fudged outcome.

My piece referred to press pieces such as the article by Conservative MP for Harborough, Neil O’Brien, The next algorithm disaster – coming to a Conservative constituency near you. This time, it’s housing growth. (ConservativeHome, 24 August 2020)and Planning algorithm may destroy suburbia: Tory MPs warn Boris Johnson. (Times, 29 August 2020). “Mutant algorithm” they all said.

So the Government has decided to stick to its previous 2017 method (just as much of an algorithm, equally “mutant”), one based on out of date household formation figures from 2014 (2014!), but with a heavy handed readjustment of the figures to ensure that they still add up to 300,000 homes (a number which itself has no empirical basis – but reflective of the extent of the, plain to see, housing crisis). The heavy handed-adjustment? To increase the relevant figure by 35% for England’s 20 largest towns and cities, including London.

Imagine if a local planning authority attempted to include housing numbers in its plan in such a way, without evidence! (Or indeed if it introduced a blanket “approve it all” policy equivalent to the effect of the new class E to C3 PD right!).

If anyone knows about planning and housing, it’s Chris Young QC. He had put forward constructive suggestions for improving the proposals given the unduly low numbers the draft revised method would have achieved for much of the north. His subsequent LinkedIn post was incandescent:

“- Confused about the “new” Standard Method?

– Baffled why it fails to address levelling up across the North?

– Mystified why in an economic crisis, Govt would focus on the largest cities where apartment prices are falling?

– Troubled by the urban focus, when overcrowded housing is a key factor for the UK having the highest Covid 19 death rate in Europe?

Well, here’s what just happened

Govt introduced Standard Method 1 in 2017 to make housing targets simpler. But it added up to less than its own 300,000 annual target, and collapsed housebuilding in the North

In August, Govt consulted on a revised version. But it contained a double affordability uplift which piled the numbers into the Shires, causing a Tory revolt

Then experts in this field came up with a more appropriate set of numbers focussing on achieving 300,000 and levelling up the North.

And then Ministers bottled it

They decided to leave the formula, which they know doesn’t work, the same. But add 35% to the major constrained cities nearly all of which are Labour controlled, pinning their hopes on a collapse in the office market and town centres and the use of PD rights

Housing policy in this country is not about housing people. Its now 100% about politics”

I’ve no problem with an urban focus, but what really is the point when those higher numbers will not be achieved, meaning an inevitable failure to achieve the overall target?

Let’s take a step back (watch out for the Christmas tree though).

The Government’s NPPF tells local planning authorities this:

“To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.” (paragraph 60).

The new standard method is incredibly important, both for this purpose, and because it will form the basis for the new plan-making system proposed in the white paper, where local planning authorities will have to plan, without deviation, for the numbers handed down to them (numbers which will be based on this standard method and then tweaked by government by way of an as yet undevised process).

To understand the detail what has now been introduced, and the justifications given, there are four relevant documents, all published on 16 December 2020:

⁃ press statement, Plan to regenerate England’s cities with new homes 16 December 2020

written ministerial statement

changed planning practice guidance

the Government’s response to the local housing need proposals in “Changes to the current planning system”

The response document tries to downplay the role of the numbers – making them out not to be a “target” but a “starting point”:

“Many respondents to the consultation were concerned that the ‘targets’ provided by the standard method were not appropriate for individual local authority areas. Within the current planning system the standard method does not present a ‘target’ in plan-making, but instead provides a starting point for determining the level of need for the area, and it is only after consideration of this, alongside what constraints areas face, such as the Green Belt, and the land that is actually available for development, that the decision on how many homes should be planned for is made. It does not override other planning policies, including the protections set out in Paragraph 11b of the NPPF or our strong protections for the Green Belt. It is for local authorities to determine precisely how many homes to plan for and where those homes most appropriately located. In doing this they should take into account their local circumstances and constraints. In order to make this policy position as clear as possible, we will explore how we can make changes through future revisions to the National Planning Policy Framework, including whether a renaming of the policy could provide additional clarity.”

Weaselly words! Of course they are a target. This methodology can no longer be said to be a proper methodological assessment of local need based on demographics and household formation rates – if nothing else, the 35% uplift for the major towns and cities puts paid to that. The justification given for the uplift is a policy justification:

“”First, building in existing cities and urban centres ensures that new homes can maximise existing infrastructure such as public transport, schools, medical facilities and shops. Second, there is potentially a profound structural change working through the retail and commercial sector, and we should expect more opportunities for creative use of land in urban areas to emerge. Utilising this land allows us to give priority to the development of brownfield land, and thereby protect our green spaces. And third, our climate aspirations demand that we aim for a spatial pattern of development that reduces the need for unnecessary high-carbon travel.”

I quoted Chris Young earlier. For an equally brilliant, expert and authoritative analysis how about Lichfields? This is a superb post by Matthew Spry and Bethan Hayes Mangling the mutant: change to the standard method for local housing need on the day of the announcement, including indications as to what the new numbers will mean for the 20 largest towns and cities:

Courtesy of Lichfields

How quickly will the changes come into effect? The Government’s response document says this:

“From the date of publication of the amended planning practice guidance which implements the cities and urban centres uplift, authorities already at Regulation 19, will have six months to submit their plans to the Planning Inspectorate for examination, using the previous standard method. In recognition that some areas will be very close to publishing their Regulation 19 plan, these areas will be given three months from the publication date of the revised guidance to publish their Regulation 19 plan, as well as a further six months from the date they publish their Regulation 19 plan to submit their plan to the Planning Inspectorate for examination, to benefit from the transition period.

The standard method has a role not only in plan-making, but is also used in planning decisions to determine whether an area has identified a 5 year land supply for homes and for the purposes of the Housing Delivery Test (where strategic policies are more than five years old). Where this applies, the revised standard method (inclusive of the cities and urban areas uplift) will not apply for a period of six months from the publication of the amended planning practice guidance. After 6 months, the new standard method will apply.

For London:

“It is clear that in London, in the medium term, there will need to be a much more ambitious approach to delivering the homes the capital needs. The Secretary of State for Housing, Communities and Local Government expects to agree the London Plan with the Mayor shortly. This new plan, when adopted, will set London’s housing requirement for the next 5 years. The local housing need uplift we are setting out today will therefore only be applicable once the next London Plan is being developed. In order to support London to deliver the right homes in the right places, the government and Homes England are working with the Greater London Authority to boost delivery through the Home Building Fund. Homes England has been providing expertise and experience to support the development of key sites in London. Sites like Old Oak Common, Nine Elms and Inner East London provide opportunities to deliver homes on significant brownfield sites. The Secretary of State for Housing, Communities and Local Government will consider giving Homes England a role in London to help meet this challenge, working more closely with the Greater London Authority, boroughs and development corporations to take a more direct role in the delivery of strategic sites in London and the preparation of robust bids for the new National Homebuilding Fund.”

A final musing for the lawyers. It has become a bit of a knee jerk reaction to proposals to question whether strategic environmental assessment was in fact required but…was it?

The criteria were recently set out again in R (Rights : Community : Action) v Secretary of State (Divisional Court, 17 November 2020):

“From the statutory framework it can be seen that a plan or programme is only required to be the subject of an environmental assessment if all four of the following requirements are satisfied:-


(1) The plan or programme must be subject to preparation or adoption by an authority at national, regional, or local level, or be prepared by an authority for adoption, through a legislative procedure by Parliament or Government;


(2) The plan or programme must be required by legislative, regulatory or administrative provisions;


(3) The plan or programme must set the framework for future development consents of projects; and


(4) The plan or programme must be likely to have significant environmental effects.”

It was held in that case that the GPDO and Use Classes Order changes did not require SEA because they do not set the framework for future development consents.

The previous challenge to NPPF changes in Friends of the Earth v Secretary of State (Dove J, 6 March 2019) had also failed. Dove J held that, whilst it did set the framework for subsequent development consents, the NPPF was not a measure “required by legislative regulatory or administrative provisions“.

But what is wrong with the following analysis?

⁃ criterion 1 – standard method = a plan prepared by government

⁃ criterion 2 – standard method = a plan required by administrative provisions, i.e. required by NPPF paragraph 60

⁃ criterion 3 – standard method sets framework for local plans and for decision making – e.g. onus on the major towns and cities in their next plans to plan for 35% more homes or suffer consequences via the tilted balance and housing delivery test – indeed geographically specific in a way which the NPPF and PPG has previously largely avoided

⁃ criterion 4 – standard method likely to have significant environmental effects – of course.

In any event, wouldn’t some evidence be helpful, as well as a proper assessment of impacts and alternatives, before lurching to a new system that has moved a long way further away from being any methodological assessment of local housing need?

Merry Christmas!

Simon Ricketts, 19 December 2020

Personal views, et cetera

E = C3

Or, The Theory Of Residential-Rather-Than-Retail-Activity.

MHCLG’s consultation paper Supporting housing delivery and public service infrastructure (3 December 2020, consultation deadline 28 January 2021) sets out various proposed new permitted development rights, but, in what has been a disastrous week for traditional retail chains, guess which proposal has attracted the most attention?

The new class E was introduced into the Use Classes Order in July 2020 (see my 24 July 2020 blog post E Is For Economy) and took effect from 1 September 2020, forming a new, amalgamated commercial, business and service use class that includes the old A1 (with small exceptions), A2, A3, B1, some D1 and some D2).

It was always anticipated that new permitted development rights would be subsequently introduced that allowed changes from the new class E without the need for planning permission. At the moment, until 31 July 2021 the existing permitted development rights apply to whatever the relevant use would have been categorised as before class E was introduced.

But in updating the existing development rights so that they apply to the new class E from 1 August 2021, the Government now intends to allow significantly greater freedoms.

“It is proposed that the right would allow for the change of use from any use, or mix of uses, within the Commercial, Business and Service use class (Class E – see paragraph 12 above) to residential use (C3). The right would replace the current rights for the change of use from office to residential (Part 3, Class O of Schedule 2 to the General Permitted Development Order), and from retail etc to residential (Part 3, Class M of the General Permitted Development Order) which remain in force until 31 July 2021. (See also Part 3 of this consultation document in respect of consequential changes.) It will go significantly beyond existing rights, allowing for restaurants, indoor sports, and creches etc to benefit from the change use to residential under permitted development rights for the first time. The protections in respect of pubs, including those with an expanded food offer, theatres, and live music venues, all of which are outside of this use class, continue to apply and a full planning application is always required for the change of use to or from such uses.

The Commercial, Business and Service use class applies everywhere in all cases, not just on the high street or in town centres. In order to benefit from the right premises must have been in the Commercial, Business and Service use class on 1 September 2020 when the new use classes came into effect.”

So, there will for the first time be the right to convert restaurants, indoor sports centres, creches and so on to residential use.

But the radical part of the proposal is that there should be no size limit on the scale of the conversions allowed:

“Building on the delivery success of the permitted development right for the change of use from office to residential, it is proposed that there be no size limit on the buildings that can benefit from the right. The right would allow for the building, or part of the building, to change use, rather than lying vacant for example. It is recognised that some retail and office buildings in particular could be a substantial size, and therefore result in a significant number of new homes, the impacts of which would be managed through prior approvals. Permitted development rights do not apply to development that is screened as requiring an Environmental Impact Assessment.”

Whilst there is currently no size limit for conversion of offices, for retail and light industrial the limits are currently small (150 sq m and 500 sq m respectively). The new right would enable change of use of the very largest shops and light industrial buildings to residential, subject to similar prior approval requirements as presently apply. Whilst permitted development rights do not apply to development that would require environmental impact assessment, it will surely be very rare that the conversion of a building, however large, would require environmental impact assessment.

How better, it might be thought, both to find new uses for surplus floorspace and to add to housing stock? But of course such a right is going to have a huge effect on the real estate market and could itself help to accelerate the loss of retail where greater value can be extracted by residential conversion.

Unlike with most permitted development rights, this right would also apply in conservation areas. “However, in recognition of the conservation value that retail frontage can bring to conservation areas the right would allow for prior approval of the impact of the loss of the ground floor use to residential.”

These are proposed to be the necessary prior approvals:

“Similar to other permitted development rights for the change of use to residential:

• flooding, to ensure residential development does not take place in areas of high flood risk

• transport, particularly to ensure safe site access

• contamination, to ensure residential development does not take place on contaminated land, or in contaminated buildings, which will endanger the health of future residents

• To ensure appropriate living conditions for residents:

• the impacts of noise from existing commercial premises on the intended occupiers of the development

• the provision of adequate natural light in all habitable rooms

• fire safety, to ensure consideration and plans to mitigate risk to residents from fire

• To ensure new homes are in suitable locations:

• the impact on the intended occupiers from the introduction of residential use in an area the authority considers is important for heavy industry and waste management”

The usual concerns about the permitted development process remain, but now writ large, for instance:

⁃ How can the Government continue to justify not imposing on these permitted development schemes the requirements that would be applied by way of the section 106 planning obligations process to schemes that come forward by way of traditional planning application? Why no affordable housing requirements, or contributions to schools and other social infrastructure, and how is this fair for those developers struggling to deliver traditional projects in the face of policy requirements that permitted development schemes neatly sidestep?

⁃ How will associated applications for planning permission for external works to these buildings be dealt with? Coping with the fenestration, M&E and external aesthetic requirements arising from conversion of an office building is one thing, but imagine the challenges faced by the developer of a department store, supermarket or light industrial unit. And what of its curtilage? What principles should an authority adopt in determining such an application, so that adequate controls are maintained without making the right meaningless by giving the authority a de facto veto?

⁃ Aside from increasing their use of article 4 directions, how can authorities prevent the conversion of buildings in plainly unsustainable locations?

⁃ How can an authority influence its area by way of its development plan policies, when the authority is left with so little control?

⁃ To what extent will the use of the new right be stymied by conditions on existing permissions, disapplying the benefit of the General Permitted Development Order, or indeed Use Classes Order?

As it happens we are co-hosting a webinar with Landmark Chambers to answer questions such as these – and plenty of others that delegates have been sending in. Landmark’s Zack Simons will join Meeta Kaur, Victoria McKeegan and myself at 5.30 pm on 15 December, free registration here: https://us02web.zoom.us/webinar/register/WN_4SVkbXSeRsm6QJ9aDRBBDA .

Simon Ricketts, 4 December 2020

Personal views, et cetera