SOx On The Run

What a mess in South Oxfordshire, with the council now on a collision course with MHCLG over its submitted local plan, which it would dearly love to withdraw.

One of the last things that the previous Conservative administration at South Oxfordshire District Council did before purdah kicked in ahead of the May 2019 local elections was to submit its local plan to the Secretary of State for examination, on 29 March 2019.

The housing numbers in the plan were part of a funding deal that the Oxfordshire authorities had struck with MHCLG last March. Part of the deal was that the plan be submitted for examination by 1 April.

So far so good.

The Lib Dems and Greens fought the election on an anti housing growth ticket, seeking the withdrawal of the plan.

Be careful what you wish for. The council is now in Lib Dem control. As with a number of local authorities which changed political control in May, it has been placed with a dilemma, once political promises meet reality.

Its cabinet considered a report from its officers on 3 October 2019. Some highlights:

In March 2018, the Council and the other authorities in Oxfordshire signed the Oxfordshire Housing and Growth Deal (Deal). This committed the Councils to support the delivery of 100,000 new homes across Oxfordshire between 2011 and 2031. In return, over a period of five years, Government offered £215 million of funding; £150 million for infrastructure projects, £60 million for affordable housing, and £2.5 million for the preparation of a Joint Statutory Spatial Plan and £2.5 million for wider administrative costs associated with the Deal. The Deal committed the Oxfordshire authorities to submitting outstanding local plans for examination by 1 April 2019 (South Oxfordshire & Oxford City).

Paragraph 010 of the Guidance states that where a Deal is in place, it is appropriate for the Council to consider whether the Deal justifies uplifting our housing need beyond the standard method. The emerging Local Plan considered that the Deal justified an uplift in need to 775 homes per annum (in line with the SHMA recommendations for South Oxfordshire).

In March 2019, Oxfordshire County Council (OCC) was successful in bidding for £218 million of funding from the Government’s Housing and Infrastructure Fund (HIF). It is intended this will contribute toward providing new infrastructure costing £234 million across South Oxfordshire and the Vale of White Horse districts. OCC are finalising an agreement with Homes England (on behalf of Government) before they will secure any of the offered funding.”

“On 26 August 2019, the leader of the council received a letter (Appendix 13) from the Secretary of State for Housing, Communities and Local Government setting out his view that “the HIF is contingent on identified housing sites coming forward in an adopted Local Plan and, as the previous Housing Minister set out, the government expects progress on your Local Plan in order to access this funding”.”

Following further discussions, MHCLG wrote again. As summarised in the report:

“In the letter of 20 September 2019, it states that should the council choose to withdraw the plan “it would immediately put at risk the significant investment that the Government has made available to South Oxfordshire and the wider County, including jeopardising the £218m recently allocated through the HIF (Didcot Garden Town)”. The letter also says, “this is because the funding is dependent on the delivery of specific sites”.

However, the letter of 20 September 2019 is less categoric in relation to the Deal compared to the HIF, stating that “withdrawing the plan will also undermine the wider ambitions and commitments of the Housing and Growth Deal and therefore potentially impact future investment to support ambitions either directly or as part of the Growth Deal of Oxford-Cambridge Arc.”

The report put forward three options:

Option A) Allow the emerging Local Plan to continue through its examination. Any modifications proposed during the examination will be considered at the sole discretion of the Inspectors.

Option B) Withdraw the Local Plan from examination and make changes to it ahead of a further regulation 19 consultation and resubmission to the Inspectorate for examination. The extent of the changes to the Plan that would be possible under Option B would be limited to no significant changes, in comparison to those that could be made under Option C. Any representations made at that Regulation 19 would be reported to and considered by the Inspector and would not be within the control of the Council.

Option C) Withdraw the Local Plan from examination. The Council would commence work on a new Local Plan. This will allow the Council to prepare a significantly different plan (subject to compliance with the law, and national policies and guidance). The Council would need to undertake at least two rounds of public consultations (Regulation 18 and 19) before submitting the new plan for examination

Officers examined the advantages and risks of each option, together with the financial and legal implications, before concluding that “there are clear advantages over the disadvantages and officers therefore recommend Option A.

The Cabinet voted down the recommendation in favour of a resolution that reflected option C:

“MOTION

That Cabinet recommends Council to:

(a) withdraw the emerging South Oxfordshire Local Plan 2034,

for the following reasons:

the uplift above the standard method from 627 homes to 775 homes a year is excessive, and the existence of the Growth Deal should not be used as a justification for this uplift

the overall supply of homes in the Local Plan period is considered excessive as it is over 5,000 homes greater than the need identified for South Oxfordshire, even allowing provision for Oxford City’s unmet housing need.

the Local Plan does not give sufficient weight to responding to the climate emergency that we face as recognised by the decision of Council of 11 April 2019

concerns about site selection issues including:

that the scale of Green Belt release is not justified

flawed site selection having regard to the sustainability and deliverability of strategic allocations

concerns about the impact of the housing mix delivery and density policy

(b) withdraw from the Oxfordshire Statements of Common Ground linked to the emerging South Oxfordshire Local Plan 2034

(c) agree to commence work as soon as practicable on a new ambitious Local Plan, to seek to address the above concerns

(d) request a report on the merits of a joint Local Plan with neighbouring authorities

(e) request the Ministry of Housing, Communities and Local Government to provide financial support to support a new ambitious Local Plan

(f) explore other opportunities for funding

(g) bring forward revenue expenditure on a new Local Plan currently estimated at £2 million into the next Medium-Term Financial Plan period, representing the most cost-effective option

(h) ask officers to prepare a new Local Development Scheme and work programme and bring this to Cabinet for approval.”

The full council meeting to consider the resolution was to take place on 10 October 2019. If ratified, the submitted plan would be immediately withdrawn, as an authority is empowered to do at any stage prior to adoption pursuant to section 22 of the Planning and Compulsory Purchase Act 2004.

MHCLG was clearly rattled by the prospect of the plan being torn up and its consequences for Oxfordshire housing and infrastructure planning more generally. The Secretary of State wrote to the leader of the council on 9 October 2019 in these terms:

Following South Oxfordshire District Council Cabinet’s decision on 3 October to recommend withdrawing the emerging South Oxfordshire Local Plan (“the Plan”), I am considering whether to give a direction to South Oxfordshire District Council in relation to the Plan under section 21 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”).

The government remains committed to making sure every community has an up-to-date and sufficiently ambitious Local Plan. Withdrawing the Plan at this stage is instead likely to create uncertainty and expose communities to speculative planning applications.

Therefore, in exercise of the powers under section 21A of the 2004 Act (inserted by section 145(5) of the Housing and Planning Act 2016), I hereby direct South Oxfordshire District Council not to take any step in connection with the adoption of the Plan, while I consider the matter further. This direction will remain in force until I withdraw it or give a direction under section 21 of the 2004 Act in relation to the Plan.

I would like to work constructively with you to ensure that South Oxfordshire is able to deliver the high-quality homes and infrastructure required to support jobs and growth in the local community. As I set out in my letter to you on 26 August 2019, progressing the Plan is an essential step to delivering the Oxfordshire Housing and Growth Deal. I have therefore asked my officials to get in touch with your officers to discuss next steps and will keep you updated while I consider this matter further.”

The council’s chief executive responded the next morning, on 10 October in uncompromising terms:

As you are aware, s.21A gives you the power to make a holding direction only where you are considering making a direction under s.21 of the Act. Importantly, section 21 gives you the following powers:

(i) Where you think a local development document is unsatisfactory, to direct the local planning authority to modify the document in accordance with that direction (s.21(1)(a));

(ii) To direct the Local Planning Authority to submit the local development document to you for your approval (s.21(4)). In circumstances where (as here) the Plan has already been submitted for examination, the Inspectors would have to report to you (s.21(5)); or

(iii) To direct that the Plan be withdrawn (s.21(9)).

We cannot see how you could properly consider that any of the directions that you could make under s.21 would accord with your clearly stated view that it is essential that the plan should be progressed. In particular, we do not understand that you consider the plan to be unsatisfactory in any way (s.21(a)); that there is anything in the Plan that needs your approval (s.21(4)); or that you think the Plan should be withdrawn (s.21(9)). Section 21A does not give you the power to make a general holding direction – it must be tied to a proper consideration of whether you intend to make a direction under s.21. Given that it would be inconsistent with your stated position for you to issue a direction under any of the powers available to you under s.21, it appears that there was no proper basis for your decision to issue the direction under s.21A.

Given the importance of this matter we require a response to this letter no later than 3pm today, either explaining the basis on which you consider it might be appropriate for you to issue a direction under s.21, or (assuming you accept that there would be no basis for issuing such a direction) withdrawing the s.21A Direction.

The Secretary of State did indeed respond that day:

You are correct that a holding direction made pursuant to s.21A of the 2004 Act requires the Secretary of State to be considering whether to give a direction under s.21 of that Act. As your Cabinet have stated they wish to withdraw the plan, the Secretary of State is considering whether to give a direction under s.21(4) of the 2004 Act for the plan (or any part of it) to be submitted to him for his approval instead of the Council.

In summary, this was not an attempt to issue a ‘general’ holding direction but to allow time for the Secretary of State to consider whether to give a direction under s21(4) of the 2004 Act.

I hope this has clarified the situation for you.”

The council meeting went ahead, but the local plan item was pulled from the agenda.

So what next?

The leader has issued this statement:

Surely, the council’s reading of the legislation is correct – under section 21 the intervention power applies if “the Secretary of State thinks that a local development document is unsatisfactory”. I doubt whether section 21 can be relied up to prevent a plan from being withdrawn, which would mean that the holding power in section 21A is also not available.

However, I’m not sure that this assist the council in practice. Whilst the Secretary of State may be reluctant to take this step, if the council were to seek to challenge the lawfulness of the purported direction, wouldn’t he simply use his default power in section 27, available where the “Secretary of State thinks that a local planning authority are failing or omitting to do anything it is necessary for them to do in connection with the preparation, revision or adoption of a development plan document”? He may “a) prepare or revise (as the case may be) the document, or (b) give directions to the authority in relation to the preparation or revision of the document”. Does this cover the current circumstances? If it doesn’t then the Government certainly missed a trick when extending the Secretary of State’s intervention powers by way of the Housing and Planning Act 2016.

The section 27 procedure is referred to in my 18 November 2017 blog post Local Plan Interventions. Reasons need to be given, but it is pretty plain that other Oxfordshire authorities are not impressed at all at the South Oxfordshire volte face, evidenced for instance by a letter from West Oxfordshire District Council dated 10 October 2019.

With a nod to my 17 August 2019 blog post Gestation Of An Elephant: Plan Making, what is better: to let nature take its course, or intervention?

Simon Ricketts, 12 October 2019

Personal views, et cetera

Beauty & The Beast; Wheat & The Chaff

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

Two themes to this blog post:

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

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

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

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

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

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

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

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

“…I will simplify the system.

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

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

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

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

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

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

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

Motherhood is still good.

The next day we have his formal announcement:

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

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

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

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

Update as to the proposed Accelerated Planning green paper:

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

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

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

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

So what can we expect?

Further reform of the application fees system

Greater use of technology in the application process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Simon Ricketts, 5 October 2019

Personal views, et cetera

New Cabinet, Poor Doors, No Windows

La Sagrada Familia = our planning system. Never finished, it now has new architects.

I don’t know what new extrusions, reversals or pauses to expect from Robert Jenrick, Esther McVey and the rest of the MHCLG ministerial team yet to be announced.

I do know that Robert Jenrick was a member of the Commons Public Accounts Committee which published a report Planning and the broken housing market (19 June 2019). From the introduction:

The government has an ambitious target of delivering 300,000 new homes per year by the mid-2020s, but inherent problems at the heart of the housing planning system are likely to jeopardise this target. If the Government delivers 300,000 new homes per year, this would be a significant increase in the rate of house building, with the number built a year averaging only 177,000 in the period 2005–06 to 2017–18. While the Ministry of Housing, Communities and Local Government (the Department) has made some recent reforms to the planning system, much more needs to be done and it still does not have a detailed implementation plan for how it will scale-up house building.”

He knows something of the task ahead.

The report also says this:

We were concerned about poor quality in the building of new homes and of office accommodation converted into residential accommodation through permitted development rights. The Department stressed that it was critical that quality was good enough. It agreed that there are issues—particularly when dealing with large office blocks— that the number of homes created out of that office block can be too high, with inadequate space standards and build quality. The Department told us that it has committed to a review of permitted development rights which turn commercial properties into residential accommodation. This review will look at the quality of those homes and what should be built.

In the lead up to the new premiership, May’s Government seemed to have a renewed focus on the quality of homes and communities. I wanted to write something on the various strands within this theme, if only to capture a series of links to documents, before we lose the thread in a slew of new announcements.

Minimum dwelling sizes

My 23 March 2019 blog post We Have Standards referred to previous Secretary of State James Brokenshire’s March 2019 statement that he intended to “review permitted development rights for conversion of buildings to residential use in respect of the quality standard of homes delivered. […]. We will also develop a ‘Future Homes Standard’ for all new homes through a consultation in 2019 with a view, subject to consultation, to introducing the standard by 2025.”

Theresa May suggested in her 26 June speech to the Chartered Institute of Housing that, whilst it would ultimately be a matter for her successor, the nationally described space standard should apply “by regulation” to all new homes. As explained in my 23 March 2019 blog post, it is presently for each local planning authority to decide whether to incorporate the standard in their local plan as a policy requirement such that an applicant for planning permission then needs to demonstrate compliance.

I do not accept that, in 2019, we can only have sufficient and affordable housing by compromising on standards, safety, aesthetics, and space.

That is why I asked the Building Better, Building Beautiful Commission to develop proposals for embedding beautiful, sustainable and human-scale design into the planning and development process.

I look forward to reading the interim report next month.

It is why the Ministry of Housing will shortly be launching a consultation on environmental performance in new build homes, with a Future Homes Standard that will give all new homes world-leading levels of energy efficiency by 2025.

And it is why I want to see changes to regulations so that developers can only build homes that are big enough for people to actually live in.

It was the Addison Act that brought modern space standards to English housing law for the first time.

During the Bill’s second reading, the architect of the standards, Sir Tudor Walters, urged MPs to “take care that the houses planned in the future are planned with due regard to comfort, convenience, and the saving of labour”.

It is a message we would do well to return to today.

Because in the years since, the pendulum has swung back and forth between regulation and deregulation, leading to a situation today where England does have national standards – but ones that are largely unenforceable and inconsistently applied.

Some local authorities include the Nationally Described Space Standard in their local plans, making them a condition of planning permission.

But others do not.

And even where they are applied, as planning policies rather than regulations they are open to negotiation.

The result is an uneven playing field, with different rules being applied with differing levels of consistency in different parts of the country.

That makes it harder for developers to build homes where they are needed most.

And it leaves tenants and buyers facing a postcode lottery – if space standards are not applied in your area, there is no guarantee that any new homes will be of an adequate size.

Now I am no fan of regulation for the sake of regulation.

But I cannot defend a system in which some owners and tenants are forced to accept tiny homes with inadequate storage.

Where developers feel the need to fill show homes with deceptively small furniture.

And where the lack of universal standards encourages a race to the bottom.

It will be up to my successor in Downing Street to deal with this.

But I believe the next government should be bold enough to ensure the Nationally Described Space Standard applies to all new homes.

As a mandatory regulation, space standards would become universal and unavoidable.

That would mean an end to the postcode lottery for buyers and tenants.”

[Creating space for beauty: The Interim Report of the Building Better, Building Beautiful Commission was published in July 2019, sans its now reinstated chairman Sir Roger Scruton, who will be able to influence the tone of the Commission’s final report, due in December 2019. The interim report is a wide-ranging discursive read ending with 30 “policy propositions”. There is much good stuff about, in Theresa May’s words, “embedding beautiful, sustainable and human-scale design into the planning and development process”. None of its policy propositions urge prescription as to dwelling size, although there is this passage within its commentary:

Above all, polling and pricing data show that people are looking for homes that meet their needs and are in the right place. Every academic or commercial study we have been able to find has shown that, other things being held equal, bigger homes are worth more and so are better connected ones. For example, a study of every single property sale in six British cities showed that in, say, Liverpool, every additional bedroom brought an additional £15,000 of value. Similar patterns were visible in Leeds, Newcastle, Manchester, Birmingham and London. In their response to our call for evidence, the RIBA also highlighted their polling research into user needs that highlighted the importance of generosity of space, high ceilings, windows that flood principal rooms with light and detail that adds character”.]

Some I know disagree, but to my mind Theresa May’s statement missed the real target in relation to minimum dwelling sizes. At present authorities can apply the nationally described space standard if they so choose. But what authorities cannot prevent (other than by removing the relevant permitted development rights in the first place by way of Article 4 Direction) is the creation of very small dwellings pursuant to the General Permitted Development Order, the adequacy of the accommodation to be created not being one of the matters in relation to which prior approval is required under the Order. Either this needs to be a matter for which prior approval is required or it needs to be addressed by way of separate regulation.

Other minimum standards in relation to permitted development rights schemes

There is still so much misunderstanding as to the operation of permitted development rights. General horror has been expressed as to the permitted development appeal in Watford for the proposed conversion of a light industrial unit to apparently windowless bed-sit/studio accommodation, allowed by an inspector in his decision letter dated 5 July 2019:

Overall, I recognise that the proposed units are small and that, for example, living without a window would not be a positive living environment. However, the provisions of the GPDO 2015 require the decision makers to solely assess the impact of the proposed development in relation to the conditions given in paragraph PA.2. The appellant has also made clear that they are not proposing any external works at this stage.”

Photo: Watford Observer

The absence of any control over size of the proposed dwellings is indeed appalling, see my point above. But I am prepared to bet that the developer, now that he has prior approval to the use of the building as dwellings, will come back with an application for planning permission for the installation of windows and for the general recladding of the building. If it had all been applied for as one planning application, the authority would no doubt have objected to the principle of the change of use – just look at the sequencing of applications with most PD schemes and there is surely nothing wrong in that – the permitted development right just relates to use – and of course does not override other regulatory requirements.

Part B of the Building Regulations requires that every habitable room up to 4.5m from ground level either (1) has an openable window with dimensions of at least 45cm by 45cm, no more than 110cm above the floor or (2) (on the ground floor) opens directly onto a hall leading directly to an exit or (above the ground floor) with direct access to a protected stairway. Adequate ventilation is also required.

Since 20 March 2019 the Homes (Fitness for Human Habitation) Act 2018 also imposes specific requirements on landlords letting residential property for a period of less than seven years. In determining whether a dwelling is unfit for human habitation regard will be had to, amongst a range of matters, natural lighting and ventilation. MHCLG has published specific guidance for landlords as to the operation of the Act.

In considering whether further legislation or guidance is needed, ministers will need to consider carefully the extent to which the planning system should duplicate systems of protection provided in other legislation and where genuinely there are gaps that would allow unacceptable outcomes.

The Future Homes Standard

What of James Brokenshire’s reference in March of consultation on a proposed Future Homes Standard this year, with a view to introducing the standard by 2025? This was a reference to the commitment in the then Chancellor’s Spring budget to:

A Future Homes Standard, to be introduced by 2025, future-proofing new build homes with low carbon heating and world-leading levels of energy efficiency. The new standard will build on the Prime Minister’s Industrial Strategy Grand Challenge mission to at least halve the energy use of new buildings by 2030“.

There has not yet been any consultation. The House of Commons Business, Energy and Industrial Strategy Committee, in its 9 July 2019 report, Energy efficiency: building towards net zero, urged a greater sense of urgency:

We welcome the announcement of a Future Homes Standard. Any attempts by housebuilders to water down the standard should be blocked by the Government. The only barrier precluding housebuilders developing to higher standards before 2025 is a preoccupation with profit margins and shareholder returns. Despite receiving billions in taxpayer funds, most housebuilders will only raise the energy standards of their stock if forced to do so. Progressive housebuilders who want to go further are being held back by the laggards who actively lobby the Government to boost their profits, rather than help meet carbon reduction obligations.

We recommend that the Government legislates for the Future Homes Standard as soon as practically possible—and by 2022 at the very latest—to guarantee that no more homes by 2025 are built that need to be retrofitted. We recommend that the Government considers policy drivers at its disposal to drive early uptake. At a minimum, the Government should put in place a compulsory ‘learning period’ from 2022 in a subset of properties in preparation for the full-scale deployment. The Government should oblige bigger housebuilders to undertake regional demonstration projects to show how they will achieve the standard.”

Communities framework

MHCLG published a “communities framework” on 20 July 2019, entitled By deeds and their results:

How we will strengthen our communities and nation , expressed to be the “next step in refreshing the government’s aspirations for stronger, more confident communities. It provides a framework to build on a range of government activity that is contributing to stronger communities in different ways – from the implementation of the Civil Society Strategy and Integrated Communities Action Plan, to our efforts to boost productivity and inclusive growth through the Industrial Strategy and by supporting local industrial strategies across the country.

It promised that the Government will:

• Hold a national conversation with communities across England about their view of who we are as a nation, their vision for the future of their community and our country, and what local and national government can and should be doing to support their community to thrive.

• Establish a series of Civic Deal pilots to test how the Ministry for Housing, Communities and Local Government and the Department for Digital, Culture, Media and Sport put into practice the principles set out in this document in partnership with local areas.

• Publish a Communities White Paper to renew government’s focus on building stronger communities across England. The scope of the White Paper will be developed in partnership with communities and informed by the national conversation and Civic Deal pilots.”

Poor Doors

I referred in my 23 March 2019 blog post to widespread concerns over development projects where affordable housing tenants are prevented from using facilities provided for private market housing residents, for example children’s play areas and entrance/lift lobbies.

The basis for such arrangements may well be economically rational to the developer (preventing service charge leakage and/or preserving a sales premium in relation to the market units), to the registered provider (which would not be in a position to impose service charges high enough to cover the cost of the facilities provided for the market housing) and to the local planning authority (usually keen to protect the profitability of the development so as to secure the maximum amount of affordable housing that can be viably be delivered). But of course there can be wider, more damaging, implications.

On the same day as the communities framework was published, an MHCLG press statement Brokenshire unveils new measures to stamp out ‘poor doors’ announced there would be “measures to tackle stigma and help end the segregation of social housing residents in mixed-tenure developments…planning guidance will be toughened up and a new Design Manual will promote best practice in inclusive design.”

Meanwhile, as to we wait to see what the new ministerial team at MHCLG delivers, the Mayor of London’s new London Plan edges forward. We await the inspectors’ conclusions following their examination sessions but in the meantime the Mayor has published a Consolidated suggested changes version of the plan July 2019.

A specific policy has now been included to require that proposals likely to be used by children and young people should include good quality, accessible play provision that “is not segregated by tenure” (policy S4 B (f)).

Conclusion

With due deference to the list of banned words circulated by Mr Rees-Mogg:

Due to the ongoing change in ministers, with the old lot out, apparently unacceptable and no longer fit for purpose, I can only speculate as to the future of these initiatives. Hopefully I will ascertain more very soon.

I understand your concerns.

Simon Ricketts, Esq. 27 July 2019

Personal views, et cetera

Photo: Go UNESCO

Secretary Of State Throws Another Curve Ball

My 15 June 2019 blog post National Lottery: 2 Problematic Recovered Appeal Decisions focused on two appeals dismissed by the Secretary of State against inspectors’ recommendations.

Well, here is another one, in relation to the Chiswick Curve scheme on the Great West Road within the London Borough of Hounslow, the 19 July 2019 decision letter out just before Parliament rises on 25 July (by which date we will have a new prime minister). Another long inquiry (15 days), long delays (the initial application was made over three and a half years ago, the inquiry was a year ago), detailed analysis from an experienced inspector who had heard the evidence and seen the site first hand, ultimately counting for nothing.

The Secretary of State’s decision followed an inquiry held by inspector Paul Griffiths BSc(Hons) BArch IHBC, into appeals by Starbones Limited against the decisions of the London Borough of Hounslow to (i) refuse planning permission for a mixed use building of one part 32 storey and one part 25 storeys comprising up to 327 residential units, office and retail/restaurant uses, basement car and bicycle parking, residential amenities, hard and soft landscaping and advertising consent with all necessary ancillary and enabling works and (ii) refuse to grant advertising consent for 3x digital billboards. The applications were dated 11 December 2015 and amended in October 2016.

The differences of judgment as between the inspector and Secretary of State appeared to boil down to the following:

⁃ The Inspector considered “that the proposal would bring a massive uplift to the area around it” and would be in accordance with various local plan policies. “While the Secretary of State recognises that public realm improvements and the publicly accessible elements of the scheme…do offer some improvement to current conditions, in terms of accessibility and movement, he does not agree that this constitutes the massive uplift as described by the Inspector.

⁃ Both agreed that the harm to designated heritage assets (the Strand on the Green Conservation Area plus its listed buildings; Kew Green Conservation Area plus its listed buildings; Gunnersbury Park Conservation area plus its listed buildings and Registered Park and Garden, and the Royal Botanic Gardens Kew World Heritage Site plus its listed buildings) would be less than substantial but the Secretary of State disagreed with the inspector’s finding that the public benefits of the proposals would be sufficient to outweigh the harm.

⁃ The Secretary of State disagreed with the Inspector that there would be no conflict with a local plan policy concerning the impact of tall buildings proposed in sensitive locations such as conservation areas, listed buildings and their settings, and World Heritage Sites.

⁃ Accordingly the Secretary of State disagreed with the Inspector and found that the proposals did not comply with the development plan when read as a whole.

⁃ The Secretary of State “considers that the site has a strategic location, and he recognises the constraints and challenges associated with it. While he agrees with the Inspector […] that the proposed design seeks to respond to those challenges in a positive way, he does not find the proposal to be of such high quality as to be a brilliant response to its immediate context. He finds the scale and massing of the proposal to be such that the proposal does not relate to its immediate surrounding. While he recognises that attempts to minimise this impact have been taken with regard to glazing and fins, the building would still dominate the surrounding area. He considers the design to be a thoughtful attempt to respond to the challenges and opportunities of the site, but due to its scale, he disagrees with the Inspector […] that it is a significant benefit of the scheme.”

⁃ The Secretary of State considered that the proposals “would not provide the levels of private and communal amenity space that [the relevant local plan policy] requires. While he has found this to be a limited departure from this policy, the Secretary of State also recognises that the on-site provision, supplemented by the relative proximity of Gunnersbury Park does reduce the weight to be attached to this conflict.”

⁃ Given his finding that the proposals would not be in accordance with the development plan he went on to consider whether whether there were any material considerations to indicate that the proposals should be determined other than in accordance with the development plan. After a detailed analysis in paragraphs 34 to 38 of the decision letter, he concludes:

Overall, the Secretary of State disagrees with the Inspector […], and finds that the moderate weight to be attached to the benefits of the appeal scheme in terms of housing provision, workspace provision and economic benefits, are not collectively sufficient to outweigh the great weight attached to the identified ‘less than substantial’ harm to the significance of the above heritage assets. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.

Local MPs Ruth Cadbury (Labour) and Zac Goldsmith (Conservative) were recorded as having objected to the proposal. The objectors appearing at the inquiry included Historic England, the Royal Botanic Gardens Kew and the Kew Society (the first two instructing Richard Harwood QC and James Maurici QC respectively). Russell Harris QC and Richard Ground QC appeared for the appellant and for the London Borough of Hounslow respectively.

I note that on 19 July 2019, the Secretary of State also refused, against his inspector’s recommendation, Veolia’s called in application for planning permission for an energy recovery facility in Ratty’s Lane, Hoddesdon, Hertfordshire.

The Secretary of State accepted that there is an “urgent and pressing need” for the facility, that there is “no obvious alternative site”. “Given the urgent and pressing need, the Secretary of State considers that the provision of an ERF with sufficient capacity to accommodate the waste demands of the county carries substantial weight in favour of the proposal, and the climate change benefits of the proposal also carry substantial weight”. However, he considered that in view of the fact that the proposal was contrary to the development plan and there were unresolved concerns over highways matters, together with “significant adverse landscape and visual impacts”, the application should be refused. I thought that “need” means “need” but there we go.

Not much getting past this Secretary of State is there? An inference of his recent letter to the Planning Inspectorate (see my 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism) might be that he considers that inspectors may on occasion be too robust in their examination of local plans and yet an inference of his approach on recovered appeals and call-ins might be that he considers that on occasion inspectors are not robust enough in assessing development proposals that are before them at inquiry. For my part, neither inference would be justified.

Simon Ricketts, 20 July 2019

Personal views, et cetera

Another Green World: The South Coast Nitrate Crisis

Local authorities in south Hampshire have been advised by a Government body not to grant permission for most forms of residential development until further notice. Perhaps absurdly, but in desperation, authorities have even been exploring amongst themselves whether they could at least grant planning permission subject to a condition restricting the homes from being occupied, or simply risk the consequences of ignoring the advice – the position is that bad.

I’m not sure that anyone can blame the EU, or lawyers, or local authorities, or developers, but no doubt they will. Rather, the problem arises from the apparent lack of adequate measures to ensure that, by virtue of its nitrate content, sewage generated as a result of new development does not harm the integrity of coastal waters protected as special areas of conservation and special protection areas under the Habitats and Birds Directives. Nitrate enrichment causes green algae, harmful to protected habitats and birds, through a process known as eutrophication. The chickens (not those in my 1 June 2019 blog post, although the same by product) are coming home to roost following a lack of priority for too long on the need by the Government and water companies to ensure that we have adequately funded and operated waste water treatment processes (see for instance the 25 June 2019 Guardian story Southern Water faces prosecution after record £126m penalty).

The issue was raised in a House of Commons debate on 17 June 2019 by Suella Braverman, Conservative MP for Fareham, but worryingly more from the perspective of seeking to suspend affected authorities’ housing targets rather than resolving the underlying issue:

“Planning applications that could deliver hundreds of new homes in Fareham are in limbo following advice from Natural England, which has instructed that planning permission should be refused unless developments are nitrate-neutral, after two rulings from the European Court of Justice. Will the Government work with me to look at suspending house building targets while affected councils work to find a solution to avoid being unfairly treated at potential appeals?

I’m not sure how reassured she we are by the response from the relevant Under-Secretary, Jake Berry: “We will happily work with my hon. Friend as she sets out. I believe that the housing Minister is already looking into this issue, and I am sure he will be in touch with her in due course.”

In south Hampshire the problem arises from a legal opinion obtained by Natural England and shared with relevant authorities on a confidential basis. If there is a copy in public circulation then do let me know and I will add it to this post. The opinion draws upon recent case law, particularly the ruling of Court of Justice of the European Union in Coöperatie Mobilisation for the Environment UA, Vereniging Leefmilieu V College van gedeputeerde staten van Limburg and Stichting Werkgroep Behoud de Peel v College van gedeputeerde staten van Noord-Brabant (CJEU, 7 November 2018).

Thankfully it’s known as the “nitrogen deposition” or the “Dutch” case. Whilst the case concerned nitrogen deposition effects arising from agricultural activities, there are two particular (unsurprising) parts of the ruling which are relevant for our purposes:

1. The Habitats Directive does not preclude “national programmatic legislation which allows the competent authorities to authorise projects on the basis of an ‘appropriate assessment’ within the meaning of that provision, carried out in advance and in which a specific overall amount of nitrogen deposition has been deemed compatible with that legislation’s objectives of protection. That is so, however, only in so far as a thorough and in-depth examination of the scientific soundness of that assessment makes it possible to ensure that there is no reasonable scientific doubt as to the absence of adverse effects of each plan or project on the integrity of the site concerned, which it is for the national court to ascertain.”

2. An appropriate assessment under the Habitats Directive “may not take into account the existence of ‘conservation measures’ within the meaning of paragraph 1 of that article, ‘preventive measures’ within the meaning of paragraph 2 of that article, measures specifically adopted for a programme such as that at issue in the main proceedings or ‘autonomous’ measures, in so far as those measures are not part of that programme, if the expected benefits of those measures are not certain at the time of that assessment.

The most detailed account that I could find of the legal advice and underlying issues is in Portsmouth City Council report to cabinet 11 June 2019. It explains that the Integrated Water Management Strategy published last year by the Partnership for Urban South Hampshire (PUSH) authorities, Natural England and the Environment Agency recognised that there were “significant uncertainties beyond the year 2020 relating to water quality, quantity, the capacity for accommodating future growth and the impacts on European nature conservation designations.

Following the CJEU ruling, Natural England (NE), the government’s adviser for the natural environment, advises that, under the requirements of the Habitat Regulations, the existing uncertainty about the deterioration of the water environment must be appropriately addressed in order for the assessment of a proposal to be legally compliant. They recommend that this is addressed by securing suitable mitigation measures to ensure that proposals achieve ‘nitrate neutrality’. It is recognised that it would be difficult for small developments or sites on brownfield land (which form the majority of applications in Portsmouth) to be nitrate neutral.

NE has therefore advised [Havant Borough Council that ‘planning permission[s] should not be granted at this stage’ whilst the uncertainty around this issue means that a comprehensive assessment of the impacts of a proposal cannot be satisfactorily carried out and while an interim strategic solution is being developed for the sub-region’. Natural England’s advice is that proposals for new employment or leisure uses which do not entail an overnight stay are generally not subject to these concerns.

Officers sought advice from Queen’s Counsel on the matter, which confirmed the validity of Natural England’s position (as of 05.05.19). As per the legal advice received, and in the absence of any pre-existing mitigation strategy, the City Council has temporarily ceased granting planning consent for additional dwellings (or an intensification of dwellings), tourism related development and development likely to generate an overnight stay at this time. Such applications can still be considered on an individual basis if they are able to demonstrate that the development would be ‘nitrate neutral’. It is understood that other Local Authorities within the Solent catchment have also temporarily stopped granting planning consent for development affected by this matter whilst mitigation strategies are being developed.”

In a subsequent specific agenda item on the issue in its report to planning committee on 19 June 2019 members were updated:

“3.11  Immediate actions being progressed are as follows:

a)  Portsmouth and the PUSH authorities to lobby central government on the approach to the matter. There appears to be disconnect between government agencies on their advice to Local Authorities, including a clear conflict between the approach to the water quality issue and the pressure to meet the government’s housing delivery targets. We will be urging Government to examine the sources of the nitrates problem, including its own environmental permitting regimes and insufficient wastewater treatment practices by statutory undertakers, rather than solely focusing on the planning system/ development industry to present solutions.

b)  PUSH authorities have agreed to explore a strategic solution to the nitrates problem that can be used as mitigation by all authorities.

c)  Officers are identifying and exploring with Natural England and other relevant parties short term measures which could enable planning consents to resume in the short term while a more comprehensive and strategic solution is determined.

d)  Officers are arranging to meet with Southern Water to explore any existing capacity for improvements in the operation of the existing waste water treatment infrastructure and the scope, timescales and mechanisms to improve the existing treatment”

The Partnership for Urban South Hampshire (“PUSH”) comprises Hampshire County Council, Portsmouth, Southampton, Eastleigh, East Hampshire, Fareham, Gosport, Havant, New Forest, Test Valley and Winchester.

PUSH held a joint committee meeting on 4 June 2019. The minutes make interesting reading. The meeting was joined by Graham Horton from Natural England and Philip James from Southern Water. Philip James made it clear that any solution arrived at by Southern Water would need to be acceptable to its regulator, the Environment Agency. I suspect this issue is not going to be resolved quickly…

As discussion continued, Members sought views from Graham Horton whether there is a short-term solution which might mitigate risk but allow housing to be built. Members were advised that an option could be that Natural England prepares a form of words which, whilst it would not remove the risk of challenge, may give reassurance to legal advisers to support Local Planning Authorities deliver housing.

The suggestion was put to the meeting that a possibility could include Local Planning Authorities granting permission with conditions of no occupation until this matter is resolved and Graham Horton was asked whether if this approach was taken whether Natural England would challenge LPAs.

The Committee was advised that if Natural England agree and sign up to this then there would not be a challenge, but they will reserve judgment at this time until a joint position is developed and agreed which allows the issue to be resolved. This will not eliminate the risk but should give Local Planning Authorities some comfort and allow them to determine their planning consents.

At the conclusion of the discussion on this item, the Chairman summarised that it was a matter for individual Local Authorities whether they started to issue planning consents, that the best approach was to collectively work on a form of wording and it was agreed this would form joint working and the that the PUSH Planning Officers’ Group would take the lead on the preparation of this Assessment as a matter of priority. ”

It was further resolved that the Chairman should write “on behalf of PUSH to the Ministry of Housing, Communities and Local Government and the Department for Environment, Food and Rural Affairs to outline how we balance the need for housing and the need to protect the environment and to request consideration of respite from the Housing Delivery Test until this is resolved.”

I can foresee a practical veto for some time to come in relation to housing proposals in the area, bar those which are big enough so as to be able to incorporate their own measures to ensure nitrogen neutrality.

But is anyone focusing on this huge issue, an issue not just for the environment but for the breakdown in practice of the normal planning system in a number of authorities? There has been one piece in the mainstream media, a 14 June 2019 BBC report, Hampshire housing developments on hold over nitrate as well as a more detailed subsequent 19 June 2019 article in Planning magazine (which provided my way into much of this post, thank you Mark Wilding).

It’s not as if Parliament is blind to the issue. After all the House of Commons Environmental Audit Committee published a detailed and pretty direct set of recommendations in its 6 November 2018 report UK Progress on Reducing Nitrate Pollution.

But what chance of any solutions to the immediate crisis on the south coast, please?

Simon Ricketts, 29 June 2019

Personal views, et cetera

National Lottery: 2 Problematic Recovered Appeal Decisions

The exercise of the Secretary of State’s power to call in applications and recover appeals for his own determination is inherently politically charged.

This blog post focuses on two recent recovered appeals. The other reverse lottery, of call in, is for another day.

The Secretary of State’s policy as to recovering appeals is handily summarised in section 6 of the House of Commons briefing paper Calling-in applications (England).

Wavendon, Woburn Sands

If anyone thinks that the Secretary of State’s intervention in this case did anything other than, at the request of a fellow MP, frustrate or delay the delivery of homes in accordance with national policy, and in so doing place unjustified financial pressure on an SME housebuilder, then do let me know.

This relates to a relatively small proposal for the development of 203 homes at Woburn Sands, Buckinghamshire. The application was made to Milton Keynes Council in July 2016 and refused in December 2016, against officers’ recommendations.

The developer, Storey Homes, appeals. An inquiry takes place over six days in July 2017, with an extremely experienced inspector, David Cullingford.

The proposal is locally controversial, with various objectors appearing at the inquiry, including three councillors. I can only assume that objectors are spooked by the way the inquiry goes because in August 2017 the councillors then ask the then planning minister to recover the appeal for the Secretary of State’s own determination. The request is refused. But they don’t stop there.

As reported at the time in MK Citizen (2 November 2017) local Conservative MP Iain Stewart then writes a billet doux to the then Secretary of State:

The letter […] starts with ‘Dear Sajid’, and thanks him for his “kind” email on Mr Stewart’s election to the government’s transport committee.

It states: “I implore you to intervene in any way you can to at least delay the announcement of the Inspector’s decision.”

It ends: “Yours ever, Iain

Anyway the charm works, and the appeal is recovered on 31 October 2017.

There is then an elongated period of post-inquiry correspondence. The most significant issue was whether Milton Keynes Council could show five years’ housing supply or whether the NPPF tilted balance applied. All the evidence points to the position being as shown by the appellant at the inquiry – less than five years’ supply.

It turns out that the objectors were right to be worried by the way the inquiry had gone. When the Secretary of State published his decision letter on 5 December 2018, they could see that the inspector in his 2 February 2018 report had indeed recommended that the appeal be allowed, finding that there was less than five years’ housing supply and that taking all considerations into account he considered “that the planning balance in this case is firmly in favour of the scheme. The benefits of this sustainable housing proposal would significantly and demonstrably outweigh the adverse impacts elicited.”

But hey never mind, babychams all round, Mr Stewart’s intervention had done the job for the objectors because the Secretary of State’s decision was to reject the inspector’s recommendation and dismiss the appeal. On the basis of some not fully explained calculations, the Secretary of State determined that there was indeed five years’ supply: “Taking all these factors into consideration, he considers that on the basis of the evidence put forward at this inquiry, estimated deliverable supply is roughly in the region of 10,000– 10,500. The Secretary of State therefore considers that the housing land supply is approximately 5.9–6.2 years. He notes that on this basis, even if the emerging plan figure of 1,766 were used (1,854 with a 5% buffer added), as the agent proposes, there would still be an estimated deliverable housing land supply of over 5 years.”

This conclusion of course meant that the tilted balance in what is now para 11(d) of the 2019 NPPF did not apply, “the policies which are most important” for determining the appeal were not automatically to be treated as out of date and he could therefore find that the proposal “conflicts with development plan policies relating to development outside settlement boundaries and density. He further considers that it is in conflict with the development plan as a whole.

The Secretary of State considers that the housing benefits of the scheme carry significant weight and the economic benefits carry moderate weight in favour of the proposal.

The Secretary of State considers that the low density of the appeal proposal carries significant weight against the proposal, while the location in unallocated open countryside outside the development boundary of Woburn Sands carries moderate weight, and the impact on the character of the area carries limited weight. He further considers that the minimal harm to the listed building carries little weight and that the public benefits of the scheme outbalance this ‘less than substantial’ harm. The heritage test under paragraph 196 of the Framework is therefore favourable to the proposal.

The Secretary of State considers that there are no material considerations which indicate the proposal should be determined other than in accordance with the development plan. He therefore concludes that the appeal should be dismissed, and planning permission should be refused.”

Many would have given up this apparent lottery at that point, but all credit to Storey and to their legal team, Peter Goatley and James Corbet Burcher (No 5 chambers) together with Stephen Webb (Clyde and Co). The decision was duly challenged in the High Court and has now been quashed by Dove J in Wavendon Properties Limited v Secretary of State (Dove J, 14 June 2019)

The judge found the Secretary of State’s reasoning to be inadequate in relation to the critical question as to whether there was five years’ supply of housing land:

“All of these factors lead me to the conclusion that the reasons provided by the First Defendant in relation to the figure were not adequate in the particular and perhaps unusual circumstances of this case. By simply asserting the figures as his conclusion, the First Defendant has failed to provide any explanation as to what he has done with the materials before him in order to arrive at that conclusion, bearing in mind that it would have been self-evident that it was a contentious conclusion. Simply asserting the figures does not enable any understanding of what the First Defendant made of the Inspector’s conclusions which he accepted in paragraph 17 of the decision letter, and how they were taken into account in arriving at the final figures in his range.

“I accept the Claimant’s submission that the need for the range to be in some way explained is not requiring reasons for reasons, it is simply requiring reasons for a conclusion which was pivotal in relation to the application of the tilted balance in this case, and which derived from figures which had not been canvassed as an answer to the question of what the Second Defendant’s housing land supply was anywhere in any of the material before the First Defendant prior to the decision letter.”

In passing, there are two other interesting aspects to the judgment:

1. An analysis of what is meant in paragraph 11(d) of the NPPF, when, separate from questions of five years’ supply, you are considering whether “the policies which are most important for determining the application are out-of-date“. Unsurprisingly, Dove J concluded that this is “neither a rule nor a tick box instruction. The language does not warrant the conclusion that it requires every one of the most important policies to be up-of-date before the tilted balance is not to be engaged. In my view the plain words of the policy clearly require that having established which are the policies most important for determining the application, and having examined each of them in relation to the question of whether or not they are out of date applying the current Framework and the approach set out in the Bloor case, an overall judgment must be formed as to whether or not taken as a whole these policies are to regarded as out-of-date for the purpose of the decision.

2. The judge’s agreement with the Secretary of State that a section 106 planning obligation by the housebuilder to use its reasonable endeavours to build out the development within five years of the council approving the last reserved matters application was not a material consideration to be taken into account. One to return to, once perhaps we see the Government’s promised green paper on measures to improve delivery and other matters.

Of course the housebuilder is not yet out of the woods. Back the appeal will go to the Secretary of State of the day for redetermination as against whatever the housing supply position, and national policy position, happens to be at that time, whenever it will be. The problem doesn’t just lie in the arbitrary nature of the recovery process (it is particularly wrong that appeals can be recovered even after the inquiry has concluded) but with the glacial pace of appeals (until the anticipated brave new world of Rosewell) which means that no-one ever knows what the policy or housing supply/delivery position is going to be when any decision is finally taken, let alone which minister will be sitting at the relevant desk.

I note that an application by the housebuilder for specific disclosure against the Secretary of State did not need to be determined by the judge in the light of his ruling. No doubt this was for civil servants’ internal recommendations to ministers before those decisions were taken in relation to the appeal, including potentially its recovery in the first place. Now wouldn’t that make interesting reading?

Sainsbury’s, Cambridge Heath Road

Last week we saw another decision by the Secretary of State to dismiss an appeal against the recommendations of his inspector. This was the decision letter dated 10 June 2019 in relation to an appeal by Sainsbury’s following the non-determination by the London Borough of Tower Hamlets of its application for planning permission for “a replacement Sainsbury’s store, an ‘explore learning’ facility, flexible retail/office/community floorspace, 471 residential units arranged in 8 blocks, an energy centre and plant at basement level, 240 ‘retail’ car parking spaces and 40 disabled car parking spaces for use by the proposed residential units, two additional disabled units proposed at Merceron Street, creation of an east-west public realm route from Cambridge Heath Road to Brady Street and public realm provision and enhancements, associated highway works to Brady Street, Merceron Street, Darling Row and Collingwood Street and Cambridge Heath Road“.

Again, an experienced inspector, David Nicholson, had recommended approval in a nuanced report, following a lengthy inquiry. There was one issue where clearly he was not convinced by the proposals, namely the location of the affordable housing within the scheme:

In describing the main entrance to the AH as poor doors, it drew attention not only to the simple design but also to the position of these at the north end of the scheme. Unlike the private units, this would put them at the greatest walking distances from public transport, shops and services. The podium barrier would not only divide the types of tenure, but also separate the amenity and play space areas as well as extend the walking distances (although access to these could be addressed through condition 43). Although more than one witness was questioned on this, no persuasive explanation was given as to why the units were separated in this way.”

The inspector pragmatically recommended that if the Secretary of State were to share these concerns “then he should seek an alternative arrangement through a further s106 Agreement“.

To a very small extent this concern was addressed by the revised s106 Agreement which would include a few shared ownership units on the other side of the proposed barrier. Nevertheless, the location of vast majority of the AH, including all the rented housing, would be both at the far end of the site and altogether rather than integrated, and this counts heavily against the benefits of the AH“.

The Secretary of State in his decision letter appears to agree with almost all of the inspector’s conclusions but the “poor doors” concern appears to be the tipping point:

The Secretary of State has further considered the fact that the social rented housing is positioned at the north end of the scheme, at the greatest walking distance from public transport, shops and services, and that the podium barrier would not only divide the types of tenure, but also separate the amenity and play space areas. He notes the Inspector’s comment that no persuasive explanation was given as to why the units were separated in this way (IR11.33). He agrees with the Inspector that to a very small extent this would be addressed by the inclusion of a few shared ownership units on the other side of the proposed barrier, and has taken into account that condition 43 requires the measures for providing access to be approved. Nonetheless the location of the vast majority of the affordable housing, including all the rented housing, would be both at the far end of the site, and all together rather than integrated (IR11.34).

In assessing the implications of this, the Secretary of State has taken into account that the Framework aims not just to deliver raw housing numbers, but to achieve healthy, inclusive and safe places (paragraph 91). He considers that the separation of the affordable housing, amenity and place space areas is not in keeping with the aims of paragraph 91(a) to achieve inclusive places that promote social interaction, including opportunities for meetings between people who would not otherwise come into contact with each other. The Secretary of State considers that this carries substantial weight against the proposal.

The Secretary of State has considered the Inspector’s comment at IR11.33 that if the Secretary of State shares his concerns, then he should seek an alternative arrangement through a further s.106 agreement. However, the Secretary of State notes that previous concerns about this matter which were addressed by a revised s.106 agreement only resulted in the inclusion of a few shared ownership units on the other side of the proposed barrier (IR11.34). He therefore considers that a seeking more fundamental changes via further revisions to the s.106 agreement is unlikely to be successful. He has also taken into account that other matters also weigh against a grant of permission. Overall he does not consider that a ‘minded to allow’ letter would be an appropriate approach in this case.”

He dismisses the appeal.

Whatever the rights and wrongs of the proposal itself, was it right not to give the appellant a short opportunity to complete a further section 106 agreement so as to address this concern? On the one hand it could have led to an appropriate form of development that would deliver much needed housing. Or it could all have proved too much for the appellant to swallow, or too complicated without scheme changes, in which case at least the opportunity would have been given.

Presumably the scheme will now be reworked, at significant expense and delaying any start on site.

I thought we were in a housing crisis – more, better, faster? And yes of course the developer could have got the scheme “better” to begin with but no doubt with a hit to viability and therefore potentially the amount of affordable housing to be provided – that’s the balance.

But is there really no room for procedural solutions such as this? Or, in the case, of Woburn Sands, de-recovery?

Simon Ricketts, 15 June 2019

Personal views, et cetera

Calculating Education Contributions

We class schools, you see, into four grades: Leading School, First-rate School, Good School, and School. Frankly,” said Mr Levy, “School is pretty bad…”

(Evelyn Waugh, Decline and Fall)

The government has been fine-tuning its guidance as to the extent to which developers in England should be required to fund education provision.

Serendipitously for this blog post, the High Court last month handed down judgment in Thompson v Conwy County Borough Council (Dove J, 26 March 2019). Not only does the case provide an introduction to some of the existing uncertainties, but, as is clear from Dove J’s introduction, there is a link to one of the greatest comic literary depictions of a private school:

The site in question in relation to these proceedings is the Fair View Inn in Llanddulas. It appears that Evelyn Waugh was at one time a patron of the Fair View Inn when he taught at a nearby preparatory school. The Fair View Inn features as “Mrs Robert’s Pub” both in his diaries and also in his first novel, Decline and Fall.”

Remember that section in Decline and Fall, where Paul Pennyfeather gets sent to Llanabba Castle School in north Wales to teach subjects he knows nothing about, and his trips to Mrs Roberts’ pub with Captain Grimes? (If not, do put this blog post down and pick up D&F – much more entertaining).

One of the grounds of challenge to the grant of planning permission for residential development on the site of the Inn was that the planning committee, in approving the proposal on the basis of a commuted sum towards education provision, “were misled by inaccurate information being provided in relation to education school capacity.” It was submitted by the claimant (a representative of the campaign group Passionate about Llanddulas) that “although members were advised that the commuted sum would be used to improve existing school facilities in the near future, including the construction of a new school, the position […] is significantly different. [The claimant] contends that the position in truth is that the school in Llanddulas will remain over capacity on the basis that there is no guarantee at present that any new school would be secured through the provision of a commuted sum for education“.

The local school is indeed already oversubscribed. The education officer sought a financial contribution of £17,009, towards the costs of a new school in due course, based on approximately two additional nursery and primary pupils being added to the local school population. An internal email from the education officer was disclosed: “… we will be building a new school there in less than 5 years and the money will come in handy!

The claimant sought to rely on correspondence from the same officer that post-dated the permission and which set out the steps that would need to be taken to secure Welsh Government funding for a new school, the outcome of which was uncertain notwithstanding confidence expressed by the officer.

Dove J unsurprisingly took the position that “the question of whether or not officers misled members should be considered on the basis of the material as known to the officers at the time of the Committee report, rather than taking account of matters that arose or came to light after the decision was reached.”

But in any event he held that what was later set out by the officer in correspondence was “not in substance different from the succinct email he sent to Ms Roberts earlier in the year, namely that the Education Section of the Defendant has it in mind to use the commuted sum towards the redevelopment of the school in Llanddulas within five years. In my view it would subject the advice that the members were given to an illegitimate and overly forensic scrutiny to suggest that it was necessary also to spell out the further statutory and administrative processes which would be required before the new school would be open for use. The issue about which members were being advised was the question of whether or not there was a legitimate objective for the commuted sum in respect of education. The advice which the members were provided with accurately reflected the view of the Education Section given by Mr Jones and did not in my judgment mislead them. I am therefore satisfied on the basis of the information which has become available since the grant of permission that the members were not misled. Thus, even were account taken of material provided after the decision the position remains the same.”

No point appears to have been expressly taken as to whether the contribution failed the regulation 122(2) test within the CIL Regulations:

A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—

(a) necessary to make the development acceptable in planning terms;

(b) directly related to the development; and

(c) irly and reasonably related in scale and kind to the development.

Nor whether it offended the (soon to be abolished) pooling restriction in regulation 123.

Whilst the permission thereby survived the campaign group’s legal challenge, when you step back for a moment, the basis for requirements for contributions towards education provision, and the expensive uncertainty which developers and residents in new developments are expected to put up with, is faintly bizarre. New homes may contain children. Those children would need schooling somewhere regardless of the particular development. And yet, an application for planning permission for residential development is an opportunity that the Government pretty much requires local authorities to take in order to reduce the financial burden on the state and on direct taxation to secure financial contributions towards new and expanded schools. That cost reduces the financial viability of schemes, thereby reducing the amount affordable housing that the developer can subsidise (I’ve commented before on that logical disconnect conveniently ignored by successive Governments looking to minimise headline tax rates – so building market housing increases the amount of subsidised affordable housing that needs to be provided does it?). And, as in that Llanddulas example, where development proceeds on the basis of a financial contribution to something somewhere in the future, the developer and those who end up living in the development are at the whim of demographics and the education department’s forward planning and funds-securing nous as to whether, and where, necessary school places will become available. Rarely is the lack of available school places a reason to refuse planning permission.

But this is the policy environment.

Relevant passages in the Government’s Planning Practice Guidance were amended on 15 March 2019:

What funding is available for education?

Government provides funding to local authorities for the provision of new school places, based on forecast shortfalls in school capacity. There is also a central programme for the delivery of new free schools.

Funding is reduced however to take account of developer contributions, to avoid double funding of new school places. Government funding and delivery programmes do not replace the requirement for developer contributions in principle.

Plan makers and local authorities for education should therefore agree the most appropriate developer funding mechanisms for education, assessing the extent to which developments should be required to mitigate their direct impacts.

Paragraph: 007 Reference ID: 23b-007-20190315

Revision date: 15 03 2019

What contributions are required towards education?

Plans should support the efficient and timely creation, expansion and alteration of high-quality schools. Plans should set out the contributions expected from development. This should include contributions needed for education, based on known pupil yields from all homes where children live, along with other types of infrastructure including affordable housing.

Plan makers and decision makers should consider existing or planned/committed school capacity and whether it is sufficient to accommodate proposed development within the relevant school place planning areas. Developer contributions towards additional capacity may be required and if so this requirement should be set out in the plan. Requirements should include all school phases age 0-19 years, special educational needs (which could involve greater travel distances), and both temporary and permanent needs where relevant (such as school transport costs and temporary school provision before a permanent new school opens).

Plan makers should also consider whether pupils from planned development are likely to attend schools outside of the plan area and whether developer contributions may be required to expand schools outside of the area.


When local authorities forward-fund school places in advance of developer contributions being received, those contributions remain necessary as mitigation for the development.

Paragraph: 008 Reference ID: 23b-008-20190315

Revision date: 15 03 2019

The Department for Education published some detailed guidance for local authorities on 11 April 2019 to help them in securing developer contributions for education and on the approach to education provision in garden communities.

The guidance purports not to “advise the construction/development industry on its duties or responsibilities in paying for infrastructure” or to replace or override “policy/guidance produced by other government departments“. However, if you are negotiating section 106 agreement obligations, it is essential reading.

Securing developer contributions for education sets out the following principles:

• Housing development should mitigate its impact on community infrastructure, including schools;

• Pupil yield factors should be based on up-to-date evidence from recent housing developments;

• Developer contributions towards new school places should provide both funding for construction and land where applicable, subject to viability assessment when strategic plans are prepared and using up-to-date cost information;

• The early delivery of new schools within strategic developments should be supported where it would not undermine the viability of the school, or of existing schools in the area.”

Planning obligations should “allow enough time for developer contributions to be spent (often this is 10 years, or no time limit is specified“. But personally, I would push against such long timescales save where specifically justified!

In terms of the inter-relationship between government and developer funding:

5. Central government basic need grant, the DfE free schools programme and other capital funding do not negate housing developers’ responsibility to mitigate the impact of their development on education. When the DfE free schools programme is delivering a new school for a development, we expect the developer to make an appropriate contribution to the cost of the project, allowing DfE to secure the school site on a peppercorn basis and make use of developer contributions towards construction. National Planning Practice Guidance explains how local planning authorities should account for development viability when planning for the provision of infrastructure.2 There should be an initial assumption that both land and funding for construction will be provided for new schools planned within housing developments

6. While basic need funding can be used for new school places that are required due to housing development, we would expect this to be the minimum amount necessary to maintain development viability, having taken into account all infrastructure requirements Where you have a reasonable expectation of developer funding being received for certain school places,3 and you have declared this in your SCAP return (or plan to do so), then basic need funding should not be considered available for those school places other than as forward funding to be reimbursed by developer contributions later.

7. There are other options besides basic need grant for forward-funding school places, including the use of local authority borrowing powers where necessary. Where developer contributions have been secured through a planning obligation, you can recoup the borrowing costs from developer contributions later, provided these costs have been incurred as a result of housing growth. Local authorities can bid for funding under government grant programmes such as the Housing Infrastructure Fund (HIF) as they become available, while developers delivering schools directly as an ‘in kind’ contribution may be eligible for loan funding from DfE or Homes England, allowing a new school to be delivered at an earlier stage in the development than would have been possible otherwise.”

Pupil yield factors should be based on up-to-date evidence from recent local housing developments“. DfE is working on a detailed methodology.

All new primary schools are now expected to include a nursery. There must be sufficient primary and secondary education up to the age of 19 as well as special educational needs and disabilities (SEN) provision.

The assumed cost of mainstream school places should be based on national average costs published by the DfE, adjusted to reflect regional costs differences. The cost of early years provision should be assumed as the same as primary provision. Contributions to special school provision should be set at four times the cost of a mainstream school place.

All temporary and permanent education needs should be properly addressed, including school transport costs and temporary school provision. Where appropriate, both a preferred and “contingency” school expansion project should be identified in a section 106 planning obligation.

23. You may wish to safeguard additional land when new schools within development sites are being planned, to allow for anticipated future expansion or the reconfiguration of schools to create a single site. ‘Future-proofing’ can sometimes be achieved informally through a site layout that places open space adjacent to a school site. Where justified by forecast need for school places, additional land can be designated specifically for education use and made available for purchase by the local authority within an agreed timescale, after which the land may be developed for other uses.

24. While developers can only be expected to provide free land to meet the education need from their development, the allocation of additional land should also preclude alternative uses, enabling you to acquire the site at an appropriate cost. Land equalisation approaches can be used in multi-phase developments to ensure the development ‘hosting’ a new school (and any additional safeguarded land) is not disadvantaged. Nevertheless, the market price for the land will depend on its permissible uses. Land allocated for educational use in a local plan would usually have no prospect of achieving planning permission for any other uses. Independent land valuation may be required to establish an acquisition cost. National Planning Practice Guidance provides advice on land valuation for the purposes of viability assessment.

(There are elements of paragraphs 23 and 24 with which I would take issue or which may be too generally expressed. For example, if the reservation of additional land for a school (or for further forms of entry to an existing school) and the need for those additional school places is not generated by the development within which the land is situated, why should that land not be acquired at the development value it would otherwise have enjoyed?).

The guidance annexes advice on compliance with state aid and public procurement legislation.

There is specific guidance on strategic developments and new settlements (with more detailed separate guidance on garden communities), including on multiple phase school provision, the timing of provision and use of viability review mechanisms where the initial education contribution has been reduced on viability grounds.

Whether your education contribution is in the low tens of thousands of pounds as per the Llanddulas case or in the low tens of millions of pounds, as may be the case with a new settlement, arriving at efficient, practical solutions is key. Travelling optimistically, let us hope that the new guidance will assist in arriving at those solutions, rather than encouraging authorities to add to the current list of requests.

Simon Ricketts, 13 April 2019

Personal views, et cetera