Telephone Kiosks vs Homes

Does the flap of a butterfly’s wings in Brazil set off a tornado in Texas?” (Edward Lorenz)

Congratulations to Trudi Elliott for her well-deserved appointment as independent chair of the Planning Inspectorate’s board of directors on 1 April 2018. She is uniquely qualified for the role and it is such a crucial time for the Planning Inspectorate.

As far as I’m concerned PINS has been one of the country’s most impressive bodies, truly independent in its decision-making, rigorous and non partisan in its approach and in recent years increasingly open as to the targets it is working to and the challenges it faces. Sarah Richards appears to be a competent chief executive and in the best traditions of the organisation.

However, I am worried that all is not well. Current average performance timescales for appeals by way of written representations, informal hearings and inquiries are reported to be as follows, as at 20 March 2018:

– written representations are taking 24 weeks overall (with the first ten weeks being to start date)

– hearings are taking 36 weeks overall (with the first 17 weeks being to start date)

– inquiries are taking 49 weeks overall (with the first five weeks being to start date).

Whilst the numbers do not appear to be worsening materially over the last year or so, they are certainly not materially improving, at a time when you would think that the Government should be pulling every lever. Furthermore the most frustrating delays are between validation of the appeal and receipt of the ‘start date’ letter, which sets the procedural deadlines for the appeal process itself. Until the start date, you’re just sitting in the in-tray.

Whilst individual experiences are inevitably anecdotal, we are acting on one appeal, in relation to a scheme for around 70 apartments (refused by members against the officers’ recommendation), where an appeal was submitted on 14 December 2017, with the written representations appeal procedure requested, validated on 9 January and yet still no start date.

Not quite the flap of a butterfly’s wing, but I posted a frustrated tweet on 20 March commenting on the delay.

Various people responded to the tweet with their own similar recent experiences, which led Mark Wilding to write a good piece in Planning magazine on 28 March Why new inspectorate data substantiates complaints about lengthening appeal delay. That in turn for instance led to a former inspector writing to the magazine with his own speculation as to the reasons for the current problems.

After the Mark Wilding piece, I wrote on 3 April to Sarah Richards to provide more details about the particular appeal in case something could be done to unlock the continuing delay in obtaining a start date. Sarah responded very quickly on 6 April. She made clear that of course she could not intervene in the particular appeal but she took the opportunity to set out the challenges which PINS is currently facing. As she said in her response that she would do, she adapted the response into an open letter to Planning magazine which it published online on 12 April.

One particular passage in her letter was news to me:

The demand on our resources has been compounded by the unexpected receipt of more than 1,000 prior approval appeals for phone kiosks, and that number is likely to increase. Currently these have been absorbed into our normal planning appeal work, with consequent delays. We are now adopting a different model to process these appeals which will use our non-salaried inspectors, and this should release capacity back to mainstream work. This will have a positive impact on the overall time taken to determine appeals over the coming months.”

So one of the reasons that there are currently delays in the processing of appeals for housing and no doubt other forms of development is a deluge of prior approval appeals for phone kiosks??

Who uses a phone kiosk any more, I naively thought. Well of course advertising companies do, for a start.

I did a little digging and I now see that there is this huge drain on the resources of local planning authorities as well as PINS caused by somewhat of a gold rush.

The Local Government Association raised a concern earlier this year, LGA: call for crackdown on ‘trojan’ telephone boxes amid 900 per cent rise in some areas (27 January 2018).

Councils have been under sustained attack for some time from a variety of, usually pretty anonymous, companies, each with a licence to operate under the electronic communications code, each seeking approval for the erection of a large number of new style telephone kiosks. The main companies include such household names (not) as Maximus Networks Limited, Infocus Public Networks Limited, Euro Payphone Limited and New World Payphones.

Electronic communications code operators benefit from deemed planning permission for the installation of their telephone kiosks under Schedule 2, Part 16, Class A of the Town and Country Planning (General Permitted Development) Order 2015, subject to prior approval by the local planning authority of siting and appearance. Need, or the lack of it, is irrelevant (see for example a decision letter dated 14 November 2017 relating to an appeal in Hackney by Euro Payphone Limited).

Operators then have deemed consent under the Advertisement Regulations for non-illuminated advertisements on the kiosks, but often apply for express consent for illuminated advertisements (see for example a decision letter dated 12 January 2018 in relation to an appeal in Eltham by New World Payphones).

Councils often understandably seek to resist these proposals but it is clearly difficult. The BBC reported last June Westminster City Council’s rejection of 80 proposals by Maximus Networks Limited as well as proposals by other companies:

Councils block ‘ugly and unwanted advert space’ phone boxes.

Whilst the issue has raised concern in local areas and provoked comment, I have not tracked down any recent Parliamentary debate when plainly something is not quite right is it?

This from the ChiswickW4 website about Infocus Public Networks Limited (I haven’t verified its accuracy):

The phone boxes, which are wheelchair accessible, have been rejected by a number of local authorities, and critics say their primary purpose is for the display of advertising rather than making phone calls.

The Warwickshire-based company, Infocus Public Networks Ltd, applied for ‘prior approval’ to site the phone boxes on the pavement at 120, 96, 135 Chiswick High Road (outside Insider Dealings Interior Design , Sainsbury Local, and the former Ballet Rambert) .

Local authorities, including Hammersmith & Fulham, Kensington & Chelsea, and Westminster have all said ‘No’ to the kiosks on grounds of siting and appearance – the only grounds on which a local authority can refuse ‘prior approval’. Councils are not allowed to consider any advertising benefits which may accrue from the phone boxes as they are already the beneficiaries of ‘deemed consent’ from the regulatory body Ofcom.

Infocus, which describes itself as the UK’s third public payphone operator, has challenged a number of local authorities for refusing to allow the phone boxes in their area. An attempt by the company to install fifteen phone boxes in Swindon, which was turned down by Wiltshire council, was partly overturned by the Planning Inspector who ruled that nine phone boxes could be sited in the town streets.

The payphone kiosks use mobile telephony for connection to other networks and the company says there are no invasive pavement works involved. They say the large windows deter the use of the kiosks for antisocial and criminal activity, and that there is still a need for public payphones for tourists, and ethnic minorities and those in wheelchairs.

The old-style kiosks are not allowed to be installed because they do not comply with disability regulations from Ofcom. BT has also removed hundreds of kiosks from UK streets due to the growth of mobile phone use.

Wiltshire Council has asked the government to give local authorities greater powers over the control of advertising on public payphones, following the Inspector’s reversal of its decision, according to the Swindon Advertiser. The City of London also lost its attempt, on appeal, to prevent seven similar boxes in the Lambeth area.

Critics of the scheme say the phone boxes are a lucrative method of attracting commercial advertising to the company which installs them, and are not of any public benefit to disabled users as they take up more pavement surface than traditional kiosks and add to ‘street clutter’.

Incidentally Infocus has possibly the world’s least informative website.

These kiosks are prime advertising space as is clear from Clearchannel’s website.

Do these payphones serve a legitimate function? If they aren’t “for the purpose of the operator’s electronic communications network” the permitted development right doesn’t apply in the first place.And what of some data privacy concerns (according to a piece in Wired, Stop replacing London’s phone boxes with corporate surveillance which might be considered alarmist if we weren’t currently highly sensitised by the Facebook data mining scandal)? Doesn’t the Government need to form a view and quickly? In the meantime these applications and appeals (1,000 appeals!) risk jamming up the system, quite apart from unnecessarily cluttering our streets. Of course PINS needs to do what it can to avoid the problem contaminating its mainstream caseload but why should it be forced to employ external consultants, at taxpayer cost? If ever there were a case for appeal fees!

One of the roles of the PINS board is “ensuring the Planning Inspectorate delivers against its strategic objectives and ensuring sufficient resources are available to achieve those objectives”. A brief scroll through previous minutes of its meetings will demonstrate the level of scrutiny given to every aspect of its performance, although no reference yet to these wretched kiosk appeals! Trudi, you have a crucial role to play in ensuring that resources are correctly prioritised.

Simon Ricketts, 14 April 2018

Personal views, et cetera

Permitted Development: À La Recherche Du Temps Perdu

Feeling a little Proustian après MIPIM? Where did that time go?
Some minor changes have been made this month to PD rights, more significant changes are possibly still to come and some existing PD rights remain controversial.
The minor changes
The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2018 was made on 8 March 2018 and comes into force on 6 April 2018. It makes various detailed amendments to the existing regime, the most significant ones being:

– Extending the existing temporary right to change use of a building from a storage or distribution centre to a dwellinghouse, which was shortly to expire. The prior approval date must be by 10 June 2019 and the change of use must be completed within three years of the prior approval date. 
– Expansion of the permitted development right to change the use of agricultural buildings to dwellinghouses such that the maximum amount of floorspace that may be converted is increased from 450 sq m to 465 sq m and up to five dwellinghouses may be created from that floorspace rather than three. 

– Enabling the Secretary of State to pause the 28 day period for prior approval where he is considering calling in an application for his own determination. 

The more significant possible further changes
In my 15 June 2016 blog post Permitted Development: What Next? I speculated as to whether two further permitted development rights would be created, which the Government had previously contemplated, namely:

– Office demolition and residential rebuild
– Upward extensions in London
21 months later, the position is still uncertain in relation to both proposals. If they are introduced their scope could well be wider than initially envisaged, but will they? More lost time if they are introduced and prove to be successful in increasing housing supply. 
We had heard nothing on office demolition and residential rebuild since Brandon Lewis’ October 2015 announcement, and it was assumed that the idea was dead, until the unexpected announcement in the Autumn 2017 budget policy paper that “the government will consult on introducing… a permitted development right to allow commercial buildings to be demolished and replaced with homes“. 
Was the reference to “commercial buildings” intentionally wider in scope than just offices? What would be the prior approval requirements? Would there be a floorspace cap? I had hoped for an update alongside the draft revised NPPF announcements in February or alongside the Spring budget statement this month but still we wait. 
Similarly, we had heard nothing about the proposed PD right for upward extensions in London since a joint Mayor of London/DCLG consultation paper in February 2016. The ministerial policy statement on 5 February 2018 appeared to make it clear that the initiative (now across England, not just London) would be dealt with by policy, within the NPPF. But then Sajid Javid’s speech launching the draft revised NPPF on 5 March 2018 had this passage:
And there are also other areas in which we’re ready to go further to take the delivery of housing up a gear.

Including a new permitted development right for building upwards to provide new homes.”
I’m left scratching my head in relation to both proposals, frankly. 

Office to residential and other existing PD rights
The office to residential permitted development right remains controversial. Undoubtedly it has delivered in terms of increasing housing stock, although with a free ride for developers in terms of affordable housing and other contributions and in some areas jeopardising the stock of office floorspace. Quality of the conversions has been variable. But, in a housing crisis, has the end justified the means?
The Local Government Association published some campaigning research One in 10 new homes was a former office against the right on 18 January 2018.  

The current areas exempted from the right will lose that exemption from 31 May 2019 and many authorities are taking steps to remove it in any event by way of Article 4 Direction, for instance recently Westminster City Council (see its 26 January 2018 report to cabinet). Indeed, policy SD5 F of the draft London Plan supports that approach:
The Mayor will work with boroughs and support them to introduce Article 4 Directions to remove office to residential permitted development rights across the whole of the CAZ and the Northern Isle of Dogs (and those parts of Tech City and Kensington & Chelsea lying outside the CAZ)
It will be interesting to see how this tension with national policy is addressed at the examination into the draft plan.
In the meantime, inevitably given the complexity now of the PD rights regime and its advantages for developers in many situations over the traditional planning applications procedure, we have seen an increase in litigation as to the nuts and bolts of the prior approval procedure. 

Most recently, in R (Marshall) v East Dorset District Council (Lang J, 13 February 2018), prior approval for the erection of an agricultural building was quashed on the basis that the PD right excluded buildings for the accommodation of livestock, whereas the application for prior approval had indicated that one of the proposed uses of the building was to “winter house 45 ewes and their lambs through the winter period“!
Last year’s decision in Keenan v Woking Borough Council (Court of Appeal, 16 June 2017) is also interesting, on a similar theme, making clear that where the authority fails to respond to an application for prior approval within 28 days, such that there is a deemed prior approval, if the proposed development did not fall within the criteria of the relevant part of the General Permitted Development Order it does not as a result of the deemed approval become “permitted development”. 
Accordingly, whether or not you have prior approval, or deemed prior approval, your proposed development still needs to fit within all of the relevant restrictions and thresholds within the Order. 
To end with M Proust:
“...loopholes opened by disappointment. Dreams are not to be converted into reality, that we know; we would not form any, perhaps, were it not for desire, and it is useful to us to form them in order to see them fail and to be instructed by their failure.”
Simon Ricketts, 17 March 2018
Personal views, et cetera

Developer Contributions, CIL, Viability: Are We Nearly There Yet?

Bookends to this last week:
On Monday 5 March 2018 the draft revised NPPF , accompanying consultation proposals document and the Government’s response to the housing white paper consultation were all published, as well as the two documents I’ll focus on in this blog post:
Supporting housing delivery through developer contributions: Reforming developer contributions to affordable housing and infrastructure (which also addresses proposed reform to CIL); and 

Draft Planning Practice Guidance for Viability 
On Friday 9 March 2018 Draft Planning Practice Guidance: Draft updates to planning guidance which will form part of the Government’s online Planning Practice Guidance was published. 

The draft revised NPPF itself says very little on developer contributions, CIL and viability. 
On contributions, paragraph 34 of the draft (headed, in contrast to the “developer contributions” document, “development contributions” – consistency of terminology would be good!) states:
Plans should set out the contributions expected in association with particular sites and types of development. This should include setting out the levels and types of affordable housing provision required, along with other infrastructure (such as that needed for education, health, transport, green and digital infrastructure). Such policies should not make development unviable, and should be supported by evidence to demonstrate this. Plans should also set out any circumstances in which further viability assessment may be required in determining individual applications.”

On viability:

58. Where proposals for development accord with all the relevant policies in an up-to- date development plan, no viability assessment should be required to accompany the application. Where a viability assessment is needed, it should reflect the recommended approach in national planning guidance, including standardised inputs, and should be made publicly available.”
The Developer Contributions consultation document (responses sought by 10 May) addresses both contributions by way of section 106 planning obligations and by way of CIL. The document is accompanied by a research report commissioned from the University of Liverpool, The Incidence, Value and Delivery of Planning Obligations and Community Infrastructure Levy in England in 2016-17 which has some interesting statistics, underlining for me the scale of monies already being secured from development, over £6bn in 2016/2017:

It is clear from the consultation document that we are still on a journey to an unknown destination:
“The reforms set out in this document could provide a springboard for going further, and the Government will continue to explore options to create a clearer and more robust developer contribution system that really delivers for prospective homeowners and communities accommodating new development. 

One option could be for developer contributions [towards affordable housing as well as infrastructure] to be set nationally and made non negotiable. We recognise that we will need to engage and consult more widely on any new developer contribution system and provide appropriate transitions. This would allow developers to take account of reforms and reflect the contributions as they secure sites for development. 

The proposals in this consultation are an important first step in this conversation and towards ensuring that developers are clear about their commitments, local authorities are empowered to hold them to account and communities feel confident that their needs will be met.”
First step in a conversation??
Contributions via section 106 planning obligations
The document sets out perceived disadvantages of relying on section 106 planning obligations, including:
– delays (but there is no mention of how these could easily be reduced by prescriptive use of template drafts and more robust guidance and the Government’s previous proposal for an adjudication process to resolve logjams in negotiations has been dropped)
– the frequency of renegotiations, most frequently changing the type or amount of affordable housing (but with no analysis of why this is so – often in my experience for wholly necessary reasons, often linked to scheme changes or reflection of changed government affordable housing priorities or funding arrangements)

– a concern that they may “only have captured a small proportion of the increase in value” that has occurred over the time period covered by the University of Liverpool research report (but, aside from where the scale of contributions has been depressed from a policy compliant position due to lack of viability, why is this relevant? Planning obligations should be about necessary mitigation of the impacts from development, not about capture of uplifts in land value ). 

– lack of transparency. 

– lack of support for cross boundary planning. 

Despite these criticisms, the document does not propose significant changes to the section 106 process (or provide any timescale for the further review it alludes to) save for proposing to remove the pooling restriction (Regulation 123 of the CIL Regulations 2010) in areas:

* “that have adopted CIL; 


* where authorities fall under a threshold based on the tenth percentile of 
average new build house prices, meaning CIL cannot feasibly charged; 


* or where development is planned on several strategic sites

The Government is consulting on what approach should be taken to strategic sites for this purpose, the two options being stated as:
“a) remove the pooling restriction in a limited number of authorities, and across the whole authority area, when a set percentage of homes, set out in a plan, are being delivered through a limited number of large strategic sites. For example, where a plan is reliant on ten sites or fewer to deliver 50% or more of their homes; 

b) amend the restriction across England but only for large strategic sites (identified in plans) so that all planning obligations from a strategic site count as one planning obligation. It may be necessary to define large strategic sites in legislation.”
I would prefer to see the pooling restriction dropped across the board. If authorities choose not to adopt a CIL charging schedule but to rely on section 106 planning obligations to make contributions towards infrastructure then why not let them, subject to the usual Regulation 122 test? I thought we wanted a simpler system?
There are sensible proposals for summaries of section 106 agreements to be provided in standard form (although we do not yet have the template), so that information as to planning obligations can be more easily made available to the public, collated and monitored. 
Contributions via CIL
The Government’s thinking on CIL continues along the lines set out alongside the Autumn 2017 budget and summarised in my 24 November 2017 blog post CIL: Haven’t Found What I’m Looking For ie wandering dangerously away from the CIL review panel’s ideas of a simpler, more uniform but lower charge regime. The proposed ability for authorities to set different CIL rates based on the existing use of land is inevitably going to make an overly complex system even worse, introducing another uncertainty, namely how the existing use of the land is to be categorised. The Government recognises that risk:

Some complex sites for development may have multiple existing uses. This could create significant additional complexity in assessing how different CIL rates should be apportioned within a site, if a charging authority has chosen to set rates based on the existing use of land. 

In these circumstances, the Government proposes to simplify the charging of CIL on complex sites, by: 

* encouraging the use of specific rates for large strategic sites (i.e. with a single rate set for the entire site) 


* charging on the basis of the majority use where 80% of the site is in a single existing use, or where the site is particularly small; and 


* other complex sites could be charged at a generic rate, set without reference to the existing use of the land, or have charges apportioned between the different existing uses.”

One wonders how this would play out in practice. 

It seems that the requirement for regulation 123 lists (of the infrastructure projects or types of infrastructure which the authority intends to fund via CIL – and which therefore cannot be secured via section 106) is to be removed, which is of concern since regulation 123 lists (the use of which should be tightened rather than loosened) serve at least some degree of protection for developers from being double-charged. 
 The Government is proposing to address one of the most draconian aspects of the CIL process – the current absolute requirement for a commencement notice to be served ahead of commencement of development, if exemptions and the right to make phased payments (where allowed by the authority) are not to be lost, is to be replaced by a two months’ grace period. However, this does not avoid all current problems as any exemptions would still need to be secured prior to commencement.

A specific problem as to the application of abatement provisions to pre-CIL phased planning permissions is to be fixed. These flaws in the legislation continue to emerge, a function of the complexity and artificiality of the whole edifice, which the panel’s proposals would significantly have reduced. In the meantime, we are some way away from actual improvements to the system we are all grappling with day by day, with no firm timescale for the next set of amending Regulations. 
Viability
The thrust of the draft planning practice guidance for viability is understood and reflects what had been heralded in the September 2017 Planning for the right homes in the right places consultation document – focus viability consideration at allocation stage, standardise, make more transparent – but there are some surprising/interesting passages:
– Is the Government contemplating review mechanisms that don’t just ratchet upwards? Good if so:
It is important that local authorities are sufficiently flexible to prevent planned development being stalled in the context of significant changes in costs and values that occur after a plan is adopted. Including policies in plans that set out when and how review mechanisms may be included in section 106 agreements will help to provide more certainty through economic cycles. 

For all development where review mechanisms are appropriate they can be used to amend developer contributions to help to account for significant changes in costs and values over the lifetime of a development. Review mechanisms can be used to re- apportion or change the timing of contributions towards different items of infrastructure and affordable housing. This can help to deliver sites that would otherwise stall as a result of significant changes in costs and values of the lifetime of a development.”
– Review mechanisms are appropriate for “large or multi phased development” in contrast to the ten homes threshold in draft London Plan policy H6 (which threshold is surely too low). 
– The document advises that in arriving at a benchmark land value, the EUV+ approach (ie existing use value plus premium) should be used. The London Mayor will have been pleased to see that but will then have choked on his cornflakes when the Government’s definition of EUV+ is set out. According to the Government, EUV is not only “the value of the land in its existing use” (reflecting the GLA approach) but also “the right to implement any development for which there are extant planning consents, including realistic deemed consents, but without regard to other possible uses that require planning consent, technical consent or unrealistic permitted development” (which is more like the GLA’s approach to Alternative Use Value!). 
Then when it comes to assessing the premium, market comparables are introduced:
When undertaking any viability assessment, an appropriate minimum premium to the landowner can be established by looking at data from comparable sites of the same site type that have recently been granted planning consent in accordance with relevant policies. The EUV of those comparable sites should then be established. 

The price paid for those comparable sites should then be established, having regard to outliers in market transactions, the quality of land, expectations of local landowners and different site scales. This evidence of the price paid on top of existing use value should then be used to inform a judgement on an appropriate minimum premium to the landowner.”

I am struggling to interpret the document as tightening the methodologies that are currently followed, or indeed introducing any material standardisation of approach. 

The EUV+ position is covered in more detail by George Venning in an excellent blog post.
– There is a gesture towards standardisation in the indication that for “the purpose of plan making an assumption of 20% of Gross Development Value (GDV) may be considered a suitable return to developers in order to establish viability of the plan policies. A lower figure of 6% of GDV may be more appropriate in consideration of delivery of affordable housing in circumstances where this guarantees an end sale at a known value and reduces the risk.” However, there is no certainty: “Alternative figures may be appropriate for different development types e.g. build to rent. Plan makers may choose to apply alternative figures where there is evidence to support this according to the type, scale and risk profile of planned development.
More fundamentally, I am sceptical that viability-testing allocations at plan-making stage is going to deliver. At that stage the work is inevitably broad-brush, based on typologies rather than site specific factors, often without the detailed input at that stage of a development team such that values and costs can be properly interrogated and without an understanding of any public sector funding that may be available. If the approach did actually deliver, significantly reducing policy requirements, so much the better, but that isn’t going to happen without viability arguments swamping the current, already swamped, local plan examination process.
Indeed, as was always going to be the case with the understandable drive towards greater transparency, the process is becoming increasingly theoretical (think retail impact assessment) and further away from developers opening their books to demonstrate what the commercial tipping point for them is in reality, given business models, funding arrangements, actual projected costs (save for land), and actual projected values. “Information used in viability assessment is not usually specific to that developer and thereby need not contain commercially sensitive data“. 
The document contains more wishful thinking:
A range of other sector led guidance on viability is widely available which practitioners may wish to refer to.”
Excellent. Such as?
Topically, this week, on 6 and 7 March, Holgate J heard Parkhurst Road Limited’s challenge to the Parkhurst Road decision letter that I referred to in my 24 June 2017 blog post Viability & Affordable Housing: Update. The challenge turns on the inspector’s conclusions on viability. Judgment is reserved. 

We also should watch out for Holgate J’s hearing on 1 and 2 May of McCarthy and Stone & others v Mayor of London, the judicial review you will recall that various retirement living companies have brought of the Mayor of London’s affordable housing and viability SPG. 
The great thing about about writing a planning law blog is that the well never runs dry, that’s for sure. (Nothing else is). 
Simon Ricketts, 10 March 2018
Personal views, et cetera

Nothing Was Delivered

“Nothing was delivered/And I tell this truth to you/Not out of spite or anger/But simply because it’s true” (Bob Dylan)

It was the first meeting on 5 February of the prime minister’s housing implementation taskforce. The subsequent press statement summarises the event as follows:
Today the Prime Minister chaired the first meeting of the Housing Implementation Taskforce at Downing Street.

She stressed the integral role all Government departments have in helping to fix the broken housing market and deliver 300,000 additional homes by the mid-2020s.

The taskforce discussed the steps Government has already taken, including further investment at the Budget, planning reform, releasing land faster, the Housing White Paper and building more affordable housing. They emphasised the key role of Homes England in driving forward change, and also focused on the supply of new housing, public sector land sales, land banking, house-building skills and building the infrastructure needed for new housing developments.

The Prime Minister reiterated that a step change was needed right across Government and that all departments needed to think creatively about how they can contribute to building the homes the country needs.
That “300,000 additional homes by the mid-2020s” reference is an interesting one, reflecting the Government’s previous 11 January 2018 announcement of the creation of Homes England:
Homes England will play a major role in fixing the housing market by helping to deliver an average of 300,000 homes a year by the mid-2020s.
This is surely a tactical step back from the Conservative party’s 2017 manifesto commitment, with no longer any pre-2022 election target:
We will meet our 2015 commitment to deliver a million homes by the end of 2020 and we will deliver half a million more by the end of 2022.”
A significant proportion of the country’s homes will need to come forward in London – the Mayor of London’s draft London Plan sets a target of around 65,000 homes a year, a significant increase from the previous plan figure of 42,000. 
These figures are only going to be achieved with a large degree of consensus between central government, the Mayor, boroughs and local communities. If I were prime minister (perish the thought) I would be worrying that in many areas, but particularly in London, there is increasing “spite or anger” (in the words of Mr Dylan). Inevitably, in any year with borough elections, planning becomes politicised but this year, with the repercussions of the Grenfell tragedy, the predictions of Conservative council losses and the internal battles within the Labour party, this is particularly so. EG has tracked the number of refusals in London up to the end of 2017. It makes for uncomfortable reading and the position will only be worsening. 


Against that background, is there a crisp appeals process? Not at all. The Planning Inspectorate’s performance statistics are still poor:


Anecdotally, many developers and authorities are keeping politically controversial decisions away from committees until the other side of the 3 May local government elections, even though the formal purdah rules, summarised in a useful Local Government Association guide, largely allow for statutory processes to carry on.
The politically charged atmosphere in many boroughs isn’t just leading to refusals of permission against officers’ recommendations – leading in turn to officers having to spend time defending appeals, with inevitable repercussions for capacity to cope with other applications in the system – but it’s impeding the work of boroughs that seek to achieve housing development, particularly in relation to estate regeneration schemes, without which those London numbers are not going to be met. 
Progress on the Haringey Development Vehicle initiative, brought forward by Haringey Council with private sector joint venture partner Lendlease, has now been halted by leader councillor Claire Kober, with no further decisions to be taken before purdah commences on 26 March until after the 3 May local election. Given that, following sustained pressure over the project, she announced on 30 January that she will not be standing for re-election, its long term future may be in doubt. This was a strategy to bring about widespread development on sites in the council’s ownership, including the proposed delivery of up to 6,400 homes. The HDV would in due course formulate development proposals for sites and make planning applications, applications which would be assessed as against planning policy, with the power for the Mayor to intervene in the usual way, but plainly in Haringey even the nature of the vehicle to be used to bring about development, presumably because of the role to be played in it by a private sector developer, was seen by objectors as unacceptable. 
There is room for debate in a democracy as to the form that regeneration should take and the extent and types of affordable housing to be provided but if the HDV is not to happen, what will? In current political and financial reality, my fear is that an opportunity to increase housing at scale, including affordable housing, will be lost. It is vital that affordable housing, with tenures to meet needs, is provided. Will the collapse of the HDV render this more or less likely? What’s the alternative? What’s the objectors’ plan? To continue this position until a 2022 general election? 
Whilst the politics played out, unpleasantly according to Councillor Kober’s account, Ouseley J was writing his judgment in Peters v London Borough of Haringey. This was a crowdfunded judicial review that had been brought on behalf of campaign group Stop HDV, seeking to establish that the council had acted outside its powers in proceeding with the project. The hearing had taken place over two days in October 2017 but Ouseley J’s judgment, over 50 pages long, was only handed down on 8 February 2018. 
The main ground of challenge was a legalistic one if ever one there was: that the council had acted outside its powers in establishing with Lendlease a limited liability partnership as the vehicle to take forward its strategic aims, on the basis that section 4(2) of the Localism Act 2011 provides that where “a local authority does things for a commercial purpose, the authority must do them through a company“. The judge rejected the argument:
To my mind, there is no doubt but that the Council’s purpose in entering into the arrangements setting up the HDV and governing its operation, including the relationship between the two partners, cannot be characterised as “a commercial purpose” within the scope of the Localism Act. Even more clearly is its dominant purpose not commercial. Any commercial component is merely incidental or ancillary, and not a separate purpose.”

“…the phrases to which Mr Wolfe took me do not show a separate commercial purpose, whether minor or not. It is important to examine why this is all being done. The purpose behind the Council’s entering into the HDV and associated arrangements is not that of a property investor, simply seeking to make a profit or to achieve a return on development or improved rentals. The purpose of the Council is to use and develop its own land to its best advantage so that it can achieve the housing, employment and growth or regeneration objectives that it has laid down. In order to achieve as much as it can, it has to achieve the best consideration on any disposal of its land; and it must be in other respects financially prudent, to produce returns in various ways which can be used to further its policy objectives. Achieving the return is neither the activity nor its purpose of itself.”

“The acquisition of other land in the context of regenerating a large estate is a commonplace, and, backed by compulsory purchase powers, it demonstrates not one whit that a separate activity of property development is being undertaken.”
In any event, the judge considered that the challenge in relation to this ground and others (lack of consultation, Equality Act) had been brought out of time. I understand that the claimant is likely to seek permission to appeal. 
In another part of London, progress is still slow on another regeneration project that has been to the High Court and back, the Aylesbury Estate. I covered in my blog post Regeneration X: Failed CPOs the decision of the Secretary of State to decline to confirm Southwark Council’s CPO based on his concern as to the effects of acquisition on leaseholders, a decision which was subsequently quashed by consent following a challenge brought by the council. A second inquiry that has been taking place into the order was adjourned on 31 January 2018 to resume for a further two weeks on 17 April. Judging from a ruling by the inspector prohibiting further filming at the inquiry it has been a lively event so far. 

According to the council’s statement of case:
The acquisition of the Order Land will enable demolition of the existing buildings in order to replace the 566 existing units of social and privately owned housing with a mixed tenure development comprising 830 homes. Of these, 304 will be social rent, 102 will be intermediate (affordable homes available as shared ownership or shared equity) and 424 will be private (of which 48 will be for open market rent and the remainder for sale). Included in the social rent homes are 50 extra care units and 7 units for people with learning difficulties.”
Inevitably, whatever the gains in housing numbers to be achieved (and indeed the affordable housing of all tenures to be provided), there will be legitimately held concerns on the part of residents directly affected. The Mayor announced on 2 February 2018 “mandatory ballots of residents for schemes where any demolition is planned as a strict condition of his funding“. 
Meanwhile, elsewhere in Southwark, Delancey has continued to face resistance in relation to its proposed redevelopment of the Elephant and Castle centre. At a committee meeting on 16 January, members overturned an officer’s recommendation to grant planning permission. A final decision has now been deferred, following a revised offer as to affordable housing and other commitments reportedly made by the developer. 
Delivery of the right schemes, in a way which maximises the potential for affordable housing and the wide range of other requirements set out in the draft London Plan will not be easy. How will land owners and developers respond? Will the Mayor continue to intervene to direct refusal where the affordable housing proportion offered is considered to be less than the maximum reasonably achievable? Will he use his call-in powers where boroughs unreasonably withhold permission for schemes which would deliver homes at scale? The Government had proposed back in 2015 reducing the threshold above which the Mayor could intervene on planning applications from 150 to 50 homes but unless the Mayor is seen as using his existing powers regularly and proactively to increase housing delivery, this may remain on the Government’s to-do list. 
The housing numbers that the Government is targeting will not be achieved without an active and engaged private sector. What if land owners choose not to release their land? There is a remarkable degree of consensus between the Conservative and Labour parties as to the desirability of using compulsory purchase powers. I covered the Conservative party’s manifesto thinking in my blog post Money For Nothing? CPO Compensation Reform, Land Value Capture (20 May 2017), in which I tried to set out some of the complexities arising from any proposal to change CPO compensation principles so as to strip out planning “hope” value (as opposed to just being smarter about using CPO powers in a way that hope values haven’t arisen in the first place). There was much publicity this month arising from an announcement from Labour shadow minister John Healey reported in the Guardian on 1 February that “Labour is considering forcing landowners to give up sites for a fraction of their current price in an effort to slash the cost of council house building“. 
Landowners currently sell at a price that factors in the dramatic increase in value when planning consent is granted. It means a hectare of agricultural land worth around £20,000 can sell for closer to £2m if it is zoned for housing.

Labour believes this is slowing down housebuilding by dramatically increasing costs. It is planning a new English Sovereign Land Trust with powers to buy sites at closer to the lower price. 

This would be enabled by a change in the 1961 Land Compensation Act so the state could compulsorily purchase land at a price that excluded the potential for future planning consent.”
I haven’t seen any more detailed analysis of the proposal or indeed any fleshing out of the idea of an English Sovereign Land Trust. Personally I would prefer to see Homes England grasp the nettle, with their existing wide compulsory purchase powers, to acquire sites at a scale which would be difficult to achieve without compulsory purchase, thereby minimising “no scheme world” values. Labour’s English Sovereign Land Trust concept sounds very rural in concept and not a substitute for facing up to difficult challenges about maximising use in cities of public sector land, about densifying suburbs and about effective approaches to estate renewal. 
And given the supposed cross-party support for increasing housing delivery, wouldn’t it be good to try to depoliticise the process where we can, rather than demonise the participants whether from public or private sector? I’ve previously blogged about the multiplicity of reviews being undertaken, to which list can now be added the CLG Commons Select Committee’s land value capture inquiry, for which the deadline for evidence is 2 March 2018). What scope can we find for consensus, about priorities, about the respective roles of the public and private sector, about funding of social housing and about the appropriate use of compulsory purchase?
Simon Ricketts, 10 February 2018
Personal views, et cetera

Dear Mr Raab, This Case Illustrates Much Of What Is Wrong With Planning

Spare a thought for Dominic Raab, who was appointed minister for housing on 9 January 2018. (Is he also minister for planning as his predecessors were? Who knows?). Linklaters-trained lawyer, he may have thought that the EU was byzantine in its tiers of policy making but that is surely as nothing compared to the English planning system. 
I do hope that Mr Raab sits down to read Dove J’s judgment in Richborough Estates Limited (and 24 other co-claimants) v Secretary of State (12 January 2018). This is of course the challenge by various land promoters and house-builders to the written ministerial statement made on 12 December 2016 (without prior consultation) by Mr Raab’s predecessor but one, Gavin Barwell. I blogged about the WMS at the time (That Written Ministerial Statement, 29 December 2016). 
For me the case illustrates the unnecessary policy complexities arising from unclear statements, ad hoc glosses to previous policies and the unclear inter-relationship between the NPPF, PPG and written ministerial statements. It also evidences the obvious tension between on the one hand the Government’s desire to increase housing land supply by ensuring that failure by authorities to provide adequately has real consequences and on the other hand the Government’s desperation to retain public confidence in neighbourhood planning. If that wasn’t enough, you have within it the attempt by policy makers to take into account the implications of the Supreme Court’s ruling in Suffolk Coastal – that one should also definitely be on Mr Raab’s reading list. 
You will recall that, despite the policy in paragraph 49 of the NPPF that relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites (triggering the presumption in favour of sustainable development in paragraph 14), the WMS provided that relevant policies for the supply of housing in a neighbourhood plan should not be deemed to be ‘out-of-date’ where the WMS is less than two years old or the neighbourhood plan has been part of the development plan for two years or less; the neighbourhood plan allocates sites for housing; and the local planning authority can demonstrate a three-year supply of deliverable housing sites.
Effectively the five year housing land supply target was being significantly watered down, to a three year target, where an up to date neighbourhood plan, allocating sites for housing (however few) was in place. The policies in that plan would still have full effect. Following the Supreme Court’s ruling in Suffolk Coastal, which clarified the operation of paragraphs 14 and 49, the Government changed its PPG but policies in neighbourhood plans which met the criteria in the WMS were still to be given ‘significant weight’ notwithstanding there not being a five years’ housing supply. 

Richborough and the other claimants sought to quash the WMS on various grounds. They argued:

– the WMS was inconsistent with paragraphs 14 and 49 of the NPPF and in having the effect of amending paragraph 49 without explicitly doing so represented an approach which was irrational and unlawful;

– the Government had made errors of fact in the research that was relied upon in formulating the policy;

– the WMS was invalid for uncertainty and confused given a lack of clarity as to how the three years’ supply was to be calculated;

– irrationality in the face of the stated intention of the NPPF to “boost significantly the supply of housing“;

– breach of legitimate expectation that there would be public consultation before planning policy for housing was changed by the WMS. 

Dove J found for the Government on all grounds. He found that the Government has a very wide discretion in the way that it brings forward planning policy:
Provided […] that the policy produced does not frustrate the operation of planning legislation, or introduce matters which are not properly planning considerations at all, and is not irrational, the matters which the defendant regards as material or immaterial to the determination of the policy being issued is [sic] a matter entirely for the defendant“. 
The policy was capable of “sensible interpretation“: three years’ housing land supply was to be calculated using the same methodology as for calculating five years’ supply. 
The judge did not interpret the WMS, with the subsequent addition of the guidance in the PPG, as amending paragraph 49 or 14 of the NPPF, albeit that it did “change national policy in relation to housing applications in areas with a recently made [neighbourhood plan]“. I am still struggling with this one – undoubtedly the WMS has changed the application of the NPPF in areas with a neighbourhood plan that meets the NPPF criteria. Even if this is not unlawful, surely this approach to policy making is to be discouraged – the NPPF does not now mean what it says. 
The judge found that there was an adequate evidential basis for the WMS and errors of fact had not been made. The bar was low given that the WMS had only stated that ‘recent analysis suggests…“. 
As regards the suggestion of irrationality in the face of the stated intention of the NPPF to “boost significantly the supply of housing“, the judge noted that this “is not an objective which exists on its own and isolated from the other interests addressed by the Framework…Amongst the other concerns for which the Framework has specific policies is, of course, Neighbourhood Planning...”
The judge set out the circumstances in which a legitimate expectation to consultation arises and found that such an expectation did not arise because a limited number of other policy announcements in relation to housing and planning matters had not been preceded by consultation. I understand that the claimants are likely to seek permission to appeal on this last ground. 
So, there is disappointment for those of us who saw Gavin Barwell’s WMS as an inappropriate attempt to rewrite (without the consultation which would have been so helpful in arriving at a workable policy) a key protection that is within the NPPF against authorities that fail properly to plan for housing. The disappointment is reduced since the Suffolk Coastal ruling and the change to the PPG which followed (no doubt largely because the Government was faced with this litigation) where the Government sought to clarify that the WMS did not change the operation of paragraph 49, although “significant weight” should be given to the neighbourhood plan. 
But, stepping back, the planning system has become as tangled again as it was at the time of the great bonfire of the previous planning policy statements and circulars in 2012 – we are having to pick uncertainly through unclear passages in the NPPF, the PPG and the WMS, reliant on regular revelations from the courts as to what the documents actually mean; decision-makers are having to ascertain the relative weight to be applied to various, often inconsistent, policies at national, local and neighbourhood level, and in the meantime the Government apparently has carte blanche to change its policies without prior consultation (policies were meant to be just in the NPPF, guidance in the PPG if you remember…).
There is a heavy burden on the shoulders of those drafting the new NPPF, that’s for sure! And a massive and important job to do for our new housing minister.
Simon Ricketts, 12 January 2018
Personal views, et cetera

Brownfield Land Registers: A Bit Of Progress

I last blogged about the new brownfield land regime back in April 2017. Back then, the deadline of 31 December 2017 had been set for local planning authorities to publish their first registers. We were also waiting for the final set of regulations that would set out the procedure by which, if your land is listed in part 1 of the register, you can apply for “permission in principle” (if your land is in part 2 of the register it is automatic). 
This blog post takes a quick look at some of the registers that have been published to see the approaches that authorities are taking – after all, whilst authorities had the 31 December deadline for publishing their registers, there was no minimum number of sites to be included, whether on part 1 or part 2 and no procedure for appeal or independent scrutiny if a land owner considers that their land has been wrongly overlooked. 
In the longer term, I hope that something will be done about authorities that only pay lip service to the process, although it is difficult to see what, without a more prescriptive system, or other sticks and carrots being applied. DCLG’s planning update newsletter published on 21 December 2017 stated:
“DCLG will assess progress in January, and it will be important that published registers contain up-to- date information on brownfield land suitable for housing. 

In July we published planning guidance, a data standard, and a template , to support local planning authorities in preparing and publishing their registers, and to ensure registers are published in a consistent and open format which can be aggregated by users of the data.”
From a quick google, it seems to me that authorities have met the deadline. However:
– the sites included do not appear to go beyond sites which were already in play by virtue of either having permission, an allocation or having featured in the authority’s strategic housing land availability assessment
– sites have not yet been included in part 2

– whilst the government’s data standard and template have been followed, the supporting information is pretty sparse. 

These are three authorities that I chose to look at, by way of a random selection:
Elmbridge Borough Council’s register only contains sites that already have planning permission. 
Milton Keynes Council has decided not to include any sites on part 2 of its register. Its part 1 sites all come from its SHLAA as well as unimplemented planning permissions. 
The notes to Islington Council’s register set out uncertainties as to the required methodology:
“The Regulations and PPG are not clear about whether the 5 dwelling threshold for inclusion on the BLR refers to net or gross dwellings. Regulation 4 of the Regulations merely requires sites to be included if they have an area of at least 0.25 hectares or is capable of supporting at least 5 dwellings. This suggests the threshold is a gross figure. 

However, Schedule 2 of the Regulations requires sites on the BLR to set out the minimum net number of dwellings which, in the authority’s opinion, the land is capable of supporting. 

This is an important distinction as there are several sites – all extant permissions – which are less than 0.25 hectares, and permit 5 or more dwellings gross but less than 5 dwellings net. Hence the decision to enter these sites onto the BLR hinges on whether we assume the 5 dwelling threshold is net or gross. 

Islington have assumed that the Regulations refer to the gross figure in terms of assessing capability under Regulation 4, although a site’s net figure is used for the ‘MinNetDwellings’ column. The council will monitor changes to guidance and other boroughs BLRs for best practice, and may revert to a net figure in future in terms of assessing sites against the Regulations.”

Islington identifies all of the sites on its register as in unknown ownership:
The BLR identifies all sites as unknown ownership, which reflects the lack of access to up-to-date Land Registry records for these sites. Islington will aim to secure ownership data for sites on future iterations of the BLR.”
These approaches are not untypical and it is underwhelming. DCLG will need to turn the thumbscrews in time for the first annual update of the registers if this process is going to do anything other than round up the usual suspect sites. 
The formatting does at least allow for some useful data gathering, such as this map of London brownfield sites.

Barton Willmore have carried out some interesting analysis as to the numbers of homes identified by the Manchester authorities in their register. 

Of course one of the benefits of finding your land within part 1 of the register is the idea that you will be able to apply for “permission in principle” as a supposedly quick route to planning approval. However this is only relevant if the site is very small, given that the cap is nine dwellings – and given that the minimum size for inclusion on the register is five dwellings this is all pretty niche. Be that as it may, the Town and Country Planning (Permission in Principle) (Amendment) Order 2017 was laid before Parliament on 21 December 2017 and will come into force on 1 June 2018. The order sets out the procedure for applying for PiPs. Lichfields’ 2 January 2018 blog post Take a chance on me: what we know about permission in principle on application is a good summary, also covering the fee rates for applications. 

On reading my April 2017 blog post again, I was surprisingly optimistic about the brownfield land registers. Nine months on, I suppose at least we now have the initial registers in place but surely now we need to see:
– greater engagement between land owners and LPAs so as to begin to use the process to unlock sites which are not already in play.

– consultation in relation to moving appropriate sites onto part 2 so that they secure automatic permission in principle (and without the nine units cap there is in relation to part 1, although they must be below the threshold for EIA).

– a real incentive for development of sites on the register, including supportive policies in the forthcoming revised NPPF. 

Simon Ricketts, 5 January 2018
Personal views, et cetera

Planning Law In 2018: This Is Not A Love Song

This is not a proper simonicity blog post but a quick review of the year that was 2017, followed by a comment-free look at 2018, which promises, conversely, to be the year of the review.
2017: review of the year

To use the popularity or otherwise of simonicity blog posts during the year as a proxy, these were some of the main issues that engaged us:
NPPF Paras 49 & 14: So What Is The Supreme Court Really Saying? (1,588 views) (10 May 2017)
20 Changes In The Final Version Of The London Mayor’s Affordable Housing & Viability SPG (731 views) (20 August 2017)
Viability Assessment Is Not A Loophole, It’s A Noose (707 views) (4 November 2017)
Housing Needs: Assessed Or Assumed? (694 views) (20 September 2017)
Five Problems With Neighbourhood Plans (565 views) (19 February 2017)
Green Belt Policy: Will It Change?  (520 views) (11 November 2017)
Money For Nothing? CPO Compensation Reform, Land Value Capture (509 views) (20 May 2017)
Courts Interpret NPPF Paras 14, 133/134, 141 (But Couldn’t It Be Clearer In The First Place?) (492 views) (8 July 2017)
Slow Train Coming: Strategic Rail Freight Interchanges In The South East (442 views) (6 May 2017)
The New EIA Regulations (357 views) (29 April 2017)
2018: year of the review?
The policy agenda for the coming year includes:
* the Government’s green paper on social housing, announced by Sajid Javid in September 2017, which he described as a “wide-ranging, top-to-bottom review of the issues facing the sector, […] the most substantial report of its kind for a generation“. 
 • recommendations from a review panel, chaired by Sir Oliver Letwin “to explain the significant gap between housing completions and the amount of land allocated or permissioned, and make recommendations for closing it”. An interim report is expected for the Government’s Spring statement in 2018 and full report by the time of the Autumn budget in 2018. 

 • the Labour party’s review of the planning system, “People and Planning”, announced by Roberta Blackman-Woods at its 2017 party conference.

 • Nick Raynsford’s review for the Town and Country Planning Association “to identify how the Government can reform the English planning system to make it fairer, better resourced and capable of producing quality outcomes, while still encouraging the production of new homes.” A report is to be formally presented at all major party conferences in autumn 2018.

 • a revised version of the National Planning Policy Framework for consultation in the Spring of 2018 with a final version in the Summer.

 • a consultation process in Spring 2018 on detailed proposals to reform the Community Infrastructure Levy.

* further implementation of existing legislation as well as an amendment to the General Permitted Development Order to give deemed permission (subject to criteria and limitations yet to be spelt out) to the demolition of existing commercial buildings and their replacement with residential development.
Away from England:
* The Law Commission is consulting until 1 March 2018 on proposals to simplify and consolidate planning law in Wales at the request of the Welsh Government, which is drafting a planning code to consolidate existing planning legislation. 
* The Planning (Scotland) Bill was introduced into the Scottish Parliament on 4 December 2017, following an independent review of the system. As well as progress in 2018 on the Bill, which proposes wide-ranging changes to the planning process in Scotland, we can also expect an amended version of Scotland’s National Planning Framework.

All of this is going to take some unpacking.
Happy new year and thanks for continuing to read, comment, share and follow. Let’s continue to join the dots and call out the spin within this increasingly diffuse policy area. Not a love song – more of a wail…
Simon Ricketts, 30 December 2017
Personal views, et cetera