Feels Like We Only Go Backwards: Wealden, South Oxfordshire & Eastleigh Local Plans

It feels like I only go backwards, baby

Every part of me says, “Go ahead”

I got my hopes up again, oh no, not again

Feels like we only go backwards, darling

The seed of all this indecision isn’t me, oh no

‘Cause I decided long ago

But that’s the way it seems to go

When trying so hard to get to something real, it feels

(Tame Impala)

An Australian band singing about English local plans?

Wealden local plan

First the Sevenoaks plan was knocked back on failure of the duty to cooperate (see my 26 October 2019 blog post More Plans Grounded: West Of England; Sevenoaks; London), now Wealden.

As always, it is interesting to start with the “taking the moral high ground” toned press statement.

Throughout the Local Plan process, we have always tried to find the right balance between the need for growth in housing and employment land, and the need to protect our unique environment,” said Councillor Bob Standley, Leader of Wealden District Council.

“Our approach to protect the environment has been supported by our Councillors and many of our residents.

“Unfortunately, the Planning Inspector, following last summer’s Examination in Public of our Local Plan, has found that we put too great an emphasis on protecting the environment and that we need to do more to build houses in Wealden which our neighbouring councils cannot accommodate.

“Regrettably, this will inevitably have impacts on our communities. We acknowledge that there is already significant pressure on infrastructure; such as roads, doctors, dentists, schools and sports facilities. A requirement to build more homes will only have a greater impact on those facilities, which will require further investment.”

(Wealden District Council’s 6 January 2020 press release).

It is interesting then to turn to the forensic dissection of the council’s approach, its multiple failings laid bare in the inspector’s 20 December 2019 letter.

I wrote about Wealden’s previous run-ins with Natural England, adjoining authorities and the courts, all basically about the extent that the council is entitled to rely on environmental concerns to reduce housing numbers within its district, in my 8 April 2017 blog post Heffalump Traps: The Ashdown Forest Cases.

South Oxfordshire local plan

My 12 October 2019 blog post SOx On The Run explained the background to the Government’s intervention to prevent the new Lib Dem administration at South Oxfordshire from withdrawing the plan which the previous Conservative administration had submitted for examination.

Secretary of State Robert Jenrick has now written on 6 January 2020 to the council indicating that he is considering whether to use powers to ask Oxfordshire County Council to prepare the Plan.

In this context, I would like to take this opportunity to ask you to outline by 31st January 2020, if there are any exceptional circumstances as to why you do not have a plan in place that I should take into account when I make a decision on next steps.”

Eastleigh local plan

Eastleigh Borough Council is in the middle of an examination of its submitted local plan. It has not been uncontroversial locally:

Hundreds of campaigners, along with local TV crews, converged on the Botleigh Grange Hotel yesterday morning as Action Against Destructive Development (ADD) staged a demonstration on the second day of the public examination of Eastleigh’s Council’s Local Plan.

Organisers estimated 400 hundred people had braved the rain to attend the early morning “show of strength” as residents from Eastleigh’s Northern and Winchester’s Southern parishes united in opposition to council plans to build thousands of new homes and a motorway link road in countryside just North of Bishopstoke and Fair Oak.  It was reported that so many people had turned up, some were forced to park at the Ageas bowl two miles away.”

(from Hundreds protest at Local Plan hearing Eastleigh News, 23 November 2019).

31 year old career politician Paul Holmes was elected to represent the Eastleigh constituency in the December 2019 general election, replacing fellow Conservative Mims Davies, who is now MP for mid-Sussex. Ms Davies was a long-time opponent of the (Lib Dem) council’s plans – indeed oddly (and surely contrary to convention) there are still campaigning pieces by her about Eastleigh on her official website despite now representing another constituency:

Our community must be heard. Real democracy is missing across Eastleigh in the local planning process. Our beautiful green spaces are under direct threat from the plans of the Council. We need to use brownfield land first. That is why I joined with community groups to make a strong submission to the Eastleigh Local Plan process. The Council should serve Eastleigh residents and not developers.”

Mr Holmes has picked up the reins from Ms Davies with some verve…

Indeed he asked a question about the local plan at Prime Minister’s Questions on 8 January 2020:

My right hon. Friend has always been a vocal advocate of localism, so what advice can he give to my constituents who are concerned about the local Lib Dem council’s unwanted housing plan in Eastleigh, which would lead to even more overdevelopment without securing the vital infrastructure that Eastleigh needs?

The Prime Minister’s response:

I am not surprised by what my hon. Friend says about the cavalier behaviour of the Lib Dem council in Eastleigh. We will ensure that, in so far as we need to build many more homes, which we do, we will supply the infrastructure necessary and do it on brownfield sites.”

(Sigh, that brownfield sites reference. That’s what they all say, isn’t it? What did Mr Holmes do on the very first day in his new job? He objected to proposed development on just one such brownfield site, the GE Aviation site in Hamble Lane, and the application was duly refused by members in spite of officers’ recommendation to approve).

I wrote about other examples of MPs intervening in local plan processes in my 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism.

Let’s leave local plan examinations to the examiners!

Simon Ricketts, 11 January 2020

Personal views, et cetera

Image from Tame Impala video for Feels Like We Only Go Backwards.

Elephant, Dove, Old Oak, RICS

I thought I would start 2020 by trying to establish some common ground, before then mentioning what happened shortly before Christmas in relation to the Elephant & Castle and Old Oak projects, both controversial in different ways. The questions are long but I hope that the answers are short.

Do we all agree that…

1. more housing is needed for those who cannot afford homes that are being built by the private sector in their local area, even when these are required to be sold or let at significant discounts to market rates – and that what we call that housing (eg social housing/socially rented) and the nature of the body that delivers and manages it (housing associations or other registered providers, local authorities) are secondary issues?

2. the current system of seeking to require developers to deliver that housing (whoever then manages it) is not working and is hugely inefficient, in that: (1) local policy expectations set out in local plans are often not met, due to those expectations being determined not to be viable – leading to prolonged negotiations and local objection (2) the complexities and multitude of inputs to any negotiated section 106 affordable housing package, often including intricate mechanisms to provide for later reviews of the viability position, are at best a costly distraction for all parties (needing to be tooled up with valuation and QS professionals) and at worst are prone to lead to huge delays and, over time, the prospect of renegotiation where the negotiated outcome is not sufficiently attractive to funders, or where (almost inevitably) circumstances have changed during the long course of the process?

3. it is in the public interest for communities within developments to be socially and economically diverse?

4. the system worked more easily when much more Government money was available to support affordable housing by way of grant (without grant obviously a requirement to deliver social housing has a huge impact on the viability of a scheme) and that we need to get back to a system that (1) is simple (2) delivers housing that is truly affordable for those who need it (3) is efficient and (4) does not delay development more generally?

5. government (ie our) money needs to be spent where it can have most beneficial impact and is most needed?

There has been a lot of government tinkering but don’t we have to get back to those fundamentals? I’m not sure that the Government’s promised Social Housing White Paper is going to get us there, given the absence of relevant detail about affordable housing in the Conservatives’ manifesto – talk about owning first homes is a world away from the very different challenges faced by so many.

I’m sorry to be a cracked record – see my 28 May 2017 blog post Affordable Housing Tax or 4 November 2017 blog post Viability Assessment Is Not A Loophole, It’s A Noose. We could look at the idea of expanding CIL to include a social housing contribution, so that local authorities can deliver or procure it, with the option of provision on site counting as works in kind? But I’ve previously been against further rolling out another complex and inefficient regime, ie CIL, and most authorities, hollowed out and stretched as they are, are not currently in any position to deliver or procure social housing at scale. Instead, personally I would simply prefer that we go back to the old way – grants to providers so as to reduce the impact on viability for the developer of providing social housing.

In the meantime, we have to make the current system work. My 8 June 2019 blog post The Bottom Line: Updates On CIL And Viability reported on the RICS professional statement on financial viability in planning, which came into effect on 1 September 2019, and mentioned the revisions made to viability passages of the PPG by the Government on 9 May 2019, reflecting changes to the NPPF that seek to ensure, amongst other things, that detailed viability examination takes place at plan-making stage rather than when applications come forward.

The RICS professional statement sets out the professional responsibilities of the surveyor in the viability appraisal process, to seek to ensure that the surveyor operates with professional independence and integrity throughout. The RICS is now consulting from 13 December 2019 until 9 February 2020 on a draft guidance note Assessing financial viability in planning under the National Planning Policy Framework for England, 1st edition that seeks to set out the methodology to be applied by those professionals, so as to give effect to Government policy.

We are not seeking comments contrasting the government framework with a market-based appraisal. Comments should focus on whether our draft guidance gives effect to government policy and practice guidance, in an administratively efficient way, in order to deliver the objectives of the NPPF.”

Make your views known.

In the meantime…

Elephant & Castle

Delancey’s proposed redevelopment of the Elephant & Castle shopping centre and London College of Communication has long been controversial. It proposes a large mixed-use development comprising a range of buildings of up to 35 storeys, with a mix of uses including 979 dwellings (proposed to be for rent rather than sale) and accommodation for retail, office, education, assembly and leisure along with a remodelling of the London Underground station. One of the lines of attack for objectors, including the 35% Campaign, has been the perceived lack of “genuinely affordable” housing.

Planning permission was granted by the London Borough of Southwark on 10 January 2019. Just before Christmas, in Flynn v London Borough of Southwark (Dove J, 20 December 2019), the High Court rejected a crowdfunded challenge to the permission brought on behalf of the 35% Campaign. The grounds of challenge all turned on the affordable housing deal that Southwark struck in the section 106 agreement with the developer.

The case doesn’t turn on any particularly interesting legal principles or make any new law. But the facts, set out in careful detail by Dove J, illustrate precisely the concerns that lay behind my attempt just now to establish some common ground:

The policy background is not straightforward, with a changing position both at borough level and at London Plan level.

The Mayor has set out criteria in his 2017 affordable housing and viability SPG for different tenures of affordable housing, including social rent (target rents determined through the national rent regime), affordable rent (rent controls requiring a rent of no more than 80% of the local market rent), intermediate (available for rent or sale at a cost above social rent but below market levels – and eligible only to households whose annual income is within a defined range) and intermediate London Living Rent (only available to households renting with a maximum income of £60,000 without sufficient current savings to purchase a home within the local area).

The adopted London Plan requires boroughs to seek the “maximum reasonable amount of affordable housing…when negotiating on individual private residential and mixed use schemes, having regard to” a number of factors, including “development viability” and the “availability of public subsidy”.

Within the Elephant & Castle area, Southwark’s adopted plan seeks a minimum requirement of 35%, on the basis of a split of 50% social rented and 50% intermediate housing. Its emerging plan seeks, in relation to build to rent developments, a different tenure split for the 35%: social rent equivalent (ie social rent level but not managed by registered provider) 34% minimum, affordable rent (aka discount market rent) capped at London Living Rent equivalent 52% minimum, affordable rent (aka discount market rent) for household incomes between £60,000 and £90,000 per year 14% minimum. The lack of social rent reflects the specific nature of build to rent developments, where it is more efficient for all of the housing to remain under single management rather than for a separate registered provider to be introduced.

At the time Delancey’s application first went to committee on 16 January 2018, its proposal was 36% affordable housing based upon habitable rooms, with the 36% made up as follows: 10% social rent equivalent, 46% London Living Rent, 43% discount market rent. The non policy compliant offer (in terms of tenure split) was based on an agreed viability assessment. Despite a recommendation for approval, members deferred a decision until a meeting scheduled for 30 January 2018 at which they intended to formulate reasons for refusal. The day before the follow-up meeting the developer made further proposals in relation to the affordable housing offer and the application was deferred to a subsequent meeting.

The revised proposal was to replace 33 social rent equivalent units with 74 socially rented units, all to be located on the western part of the development and to be owned and operated either by the borough or by a registered provider. This changed the tenure split (of the 35% affordable housing dwellings) to: social rent 24.9%, London Living Rent 27.9%, discount market rent 47.2%.

In June 2018 the offer was increased again. The developer’s consultants indicated that following “in-principle agreement from the GLA to provide grant funding towards the proposed scheme” the number of social rent units could be increased to 116 homes, or 38.1% of the 35% of the units that were to be affordable.

The application was approved at a committee meeting on 3 July 2018. It was acknowledged in the report that the proposed tenure split was still not policy compliant but was justified by way of the agreed viability appraisal. The report also noted that there would need to be a fallback arrangement in the section 106 agreement to cater for the possibility that the developer might choose after all to develop the western part of the development on a for sale rather than for rent basis (in which case the affordable housing requirement for that part of the site would return to 50% social rented, 50% intermediate).

If all of this does not start to give an idea of the inevitable complexity of negotiations on a scheme such as this, then consider the viability appraisal. As is common with a significant longterm development, where application of the more straightforward benchmark land value plus developer’s profit approach does not reflect accurately the financial modelling of a project over time, viability was judged against a minimum internal rate of return for the developer.

The latest RICS draft guidance defines internal rate of return (or “IRR”) as follows:

The rate of interest (expressed as a percentage) at which all future project cash flows (positive and negative) will be discounted in order that the net present value (NPV) of those cash flows, including the initial investment, be equal to zero. IRR can be assessed on both gross and net of finance.”

However, unless I have missed it, there is no guidance anywhere as to when an IRR approach is appropriate and how to arrive at and test the inputs and modelling.

The agreed benchmark was 7.15% IRR, with annual growth to 11% over the construction period. Review mechanisms in the section 106 agreement provide that 50% of any excess are to be applied to increasing the affordable housing provision up to a policy compliant level/tenure split.

The claimant had three grounds of challenge. The first turned on an alleged inaccuracy in the way that the GLA’s offer of funding had been reported – it had not been formally confirmed and discussions were at an “in principle stage”. The second alleged that one of the detailed mechanisms in the section 106 agreement departed from the relevant head of term in the committee resolution. The third related to the mechanism in the section 106 agreement for determining the affordable housing to be provided if the western part of the site turned into a “for sale” development, but a deed of variation had been entered into after the challenge was brought, largely correcting the error that had been identified.

Dove J rejected each of the grounds, whilst accepting that each was arguable. (1) The report did not materially mislead members. (2) The section 106 mechanism was not outside the scope of the committee resolution (“True it is that the solutions arrived at are not a literal interpretation of paragraph 364 [of the report to committee], in that they do not include for the provision of land and a substantial cash dowry to construct the social rented units but, in my judgment, that was not required in order to remain within the scope of the delegation granted by the members”). (3) The approach to the fallback (“for sale”) scenario was “entirely rational and appropriate”. Part of the claimant’s criticism of the arrangements turned on whether the additional affordable housing in these circumstances should be social rented units rather than the social rented equivalent units provided for. The judge saw nothing relevant in the distinction:

In terms of the matters raised by the Claimant the quality of tenure enjoyed by tenants in social rented equivalent properties are, as the nomenclature suggests, equivalent to those in social rented properties. Of course, there may well be nuanced differences between them as a consequence of them being separately defined. Furthermore, they will be managed in different ways as the definition implies. Be all of this as it may, in my view the important point is that the requirement of the officers’ report was a review in terms of affordable housing, and whether the additional habitable rooms were to be provided as social rented or social rented equivalent accommodation was not identified as being in any way a critical point upon which the delegation to the officers of authority to enter into the section 106 obligation turned. Put another way, whatever may be the nuanced differences between social rented equivalent property and social rented units that was not identified as a key requirement in relation to the review mechanism contemplated were the developer to take up the fall-back scenario.”

Will the new guidance make any of this more straight forward? I doubt it. Would proper funding for social rent and social rent equivalent housing? Of course it would.

Old Oak and Park Royal Local Plan

The recent NPPF and PPG changes of course seek to move the viability spotlight to the point at which sites are allocated for development. The Old Oak plan was examined last year under the previous NPPF but viability matters were still centre stage and the inspector’s findings may be an indicator of the detailed scrutiny that is likely to be given to the viability in particular of strategic sites (taken together with proposed policy requirements in terms of infrastructure delivery and affordable housing).

One of the key issues for the inspector was whether the proposed allocation of the 54 acre Cargiant site for residential and associated development was viable. Cargiant had itself attempted development of its site in the past. It had concluded that it would be unviable to contemplate relocating or extinguishing its business and carrying out the development – and took the position that there was no reasonable prospect within the plan period of the Old Oak and Park Royal Development Corporation (“OPDC”) being in a position to carry out such proposals, even by resorting to compulsory purchase and even with the benefit of £250m Housing and Infrastructure Fund monies which had been agreed in principle to be allocated by MHCLG.

My firm acted for Cargiant and so I will restrict myself to pointing out the level of detail to which the inspector went in his interim findings on viability of Cargiant site proposal (10 September 2019) before concluding that the allocation would be unviable and therefore unsound.

The day after the general election, on 13 December 2019, the OPDC announced that it would change its proposals, which will now leave Cargiant in place:

New focus for Old Oak and Park Royal regeneration:

The Old Oak and Park Royal Development Corporation (OPDC) has today set out a revised approach to deliver tens of thousands of new homes and jobs through collaboration with major public sector landowners.

The regeneration of Old Oak, Park Royal and surrounding areas in west London, has the potential to deliver 25,500 new homes and 65,000 jobs over the next 30 years. OPDC has already approved plans for over 5,000 homes including 1,500 already completed or being built.

The shift in approach has been triggered by recent, rapid increases in industrial land values in west London which mean that it is currently not financially viable to deliver OPDC’s early regeneration plans at Old Oak North. This area, close to the planned new HS2 interchange station, includes the 54-acre site that is owned and operated by Cargiant, which had originally been earmarked for development.

Earlier this year, the Planning Inspector, in his interim report on the OPDC’s draft Local Plan, de-designated the Cargiant site from Strategic Industrial Land, but also concluded that Old Oak North had become commercially unviable for residential-led development at this time.”

Whilst this situation might be taken to be an example of how viability matters can indeed in practice be taken into account at the plan-making stage, I do have concerns:

⁃ There is now a bigger onus on authorities to carry out proper viability work, including work to a sensible level of detail on strategic sites (albeit often with assistance from those promoting those sites for development), and is it actually going to be done?

⁃ Where it is not done, delays will occur in the examination process. At Old Oak, the necessary work had not been done and there was a significant hiatus whilst it was commissioned.

⁃ Development proposals are often not sufficiently worked up, at the stage that the plan is being prepared, so as to enable a sensible viability appraisal to be undertaken. And will developers be prepared always to come clean at the allocation stage as to the challenges they are facing in making the numbers stack up?

⁃ Will there always be participants in the local plan examination process with the motivation and resources to put authorities to proof on the work that has been carried out? If Cargiant hadn’t taken its stance (entailing lawyers and a team of consultants to challenge much of the inputs) I suspect the allocation would have been confirmed without challenge – and then proved over time to be undevelopable.

The next blog post will be shorter, I promise.

Simon Ricketts, 4 January 2020

Personal views, et cetera

Pic credit: Bizarro Comics

Blue Christmas

Duncan Field, Victoria McKeegan and I were speculating in our 16 December 2019 planorama vlog as to what the new Government’s legislative programme and policy priorities are likely to be in relation to planning, infrastructure and the environment

We now have the blueprint, in the form of the Queen’s Speech on 19 December 2019 and particularly the 151 pages of background notes published the same day.

There is going to be an “ambitious” planning white paper in due course, but what is promised in the meantime in this very blue paper that these notes represent? The government has little excuse not to deliver on what it has set out, given the size of its majority. The most relevant references are as follows:

Housing (pages 48 to 50):

My government will take steps to support home ownership, including by making homes available at a discount for local first-time buyers.”

The Government will support people to realise the dream of homeownership. One of the biggest divides in our country is between those who can afford their own home and those who cannot.

The Government will shortly launch a consultation on First Homes. This will provide homes for local people and key workers at a discount of at least 30 per cent – saving them tens of thousands of pounds.

The discount on First Homes will be secured through a covenant. This means these homes will remain discounted in perpetuity, supporting people now and in the future who aspire to own a home of their own.

The Government will also renew the Affordable Homes Programme, building hundreds of thousands of new homes for a range of people in different places. This will help us prevent people from falling into homelessness while also supporting further people into homeownership.

We will introduce a new, reformed Shared Ownership model, making buying a share of a home fairer and more transparent. This new model will be simpler to understand and better able shared owners to buy more of their property and eventually reach full ownership.

To deliver on the homes this country needs, the Government is committed to building at least a million more homes over this Parliament. In the coming months we will set out further steps to achieve this, including an ambitious Planning White Paper and funding for critical infrastructure.

The Planning White Paper will make the planning process clearer, more accessible and more certain for all users, including homeowners and small businesses. It will also address resourcing and performance in Planning Departments.

The new £10bn Single Housing Infrastructure fund will provide the roads, schools and GP surgeries needed to support new homes. Alongside First Homes, this will ensure local people truly benefit from house building in their area and build support for new developments

To help those who rent, the Government will build a rental system that is fit for the modern day – supporting landlords to provide high quality homes while protecting tenants. The Government’s Better Deal for Renters will fulfil our manifesto commitments to abolish ‘no fault’ evictions and to introduce lifetime deposits, alongside further reforms to strengthen the sector for years to come.

The Government is taking forward a comprehensive programme of reform to end unfair practices in the leasehold market. This includes working with the Law Commission to make buying a freehold or extending a lease easier, quicker and more cost effective – and to reinvigorate commonhold and Right to Manage.

The Government will ensure that if a new home can be sold as freehold, then it will be. We will get rid of unnecessary ground rents on new leases and give new rights to homeowners to challenge unfair charges. The Government will also close legal loopholes to prevent unfair evictions and make it faster and cheaper to sell a leasehold home.

For those in the social rented sector, we will bring forward a Social Housing White Paper which will set out further measures to empower tenants and support the continued supply of social homes. This will include measures to provide greater redress, better regulation and improve the quality of social housing.

This Government has committed to end rough sleeping by the end of this Parliament. The Government will continue to invest in key rough sleeping interventions, building on the progress that we made last year in reducing rough sleeping numbers. The Government will also continue to support those at risk of homelessness and rough sleeping through the continued enforcement of the Homelessness Reduction Act.

Building Safety Bill (pages 51 to 53):

New measures will be brought forward…to improve building safety.

An enhanced safety framework for high-rise residential buildings, taking forward the recommendations from Dame Judith Hackitt’s independent review of building safety, and in some areas going further by:

Providing clearer accountability and stronger duties for those responsible for the safety of high-rise buildings throughout the building’s design, construction and occupation, with clear competence requirements to maintain high standards.

Giving residents a stronger voice in the system, ensuring their concerns are never ignored and they fully understand how they can contribute to maintaining safety in their buildings.

Strengthening enforcement and sanctions to deter non-compliance with the new regime, hold the right people to account when mistakes are made and ensure they are not repeated.

Developing a new stronger and clearer framework to provide national oversight of construction products, to ensure all products meet high performance standards.

Developing a new system to oversee the whole built environment, with local enforcement agencies and national regulators working together to ensure that the safety of all buildings is improved.

We will also legislate to require that developers of new build homes must belong to a New Homes Ombudsman.

Fire Safety Bill (pages 54 to 55):

New measures will be brought forward…to improve building safety.”

Clarifying that the scope of the Fire Safety Order includes the external walls of the building, including cladding, and fire doors for domestic premises of multiple occupancy.

Strengthening the relevant enforcement powers to hold building owners and managers to account.

Providing a transitional period for building owners and managers (the “responsible person”) and Fire and Rescue Services to put in place the infrastructure for these changes.”

National Infrastructure Strategy (pages 90 to 91):

My government will prioritise investment in infrastructure…”

The National Infrastructure Strategy will be published alongside the first Budget, and will set out further details of the Government’s plan to invest £100 billion to transform the UK’s infrastructure.

The Strategy will set out the Government’s long-term ambitions across all areas of economic infrastructure including transport, local growth, decarbonisation, digital infrastructure, infrastructure finance and delivery.

The Strategy will have two key aims:

To unleash Britain’s potential by levelling up and connecting every part of the country. Prosperity will be shared across all of the UK, and long- standing economic challenges addressed, through responsible and prudent investment in the infrastructure.

To address the critical challenges posed by climate change and build on the UK’s world-leading commitment to achieve net zero emissions by 2050.

The Strategy will also provide the Government’s formal response to the National Infrastructure Commission’s 2018 National Infrastructure Assessment, which made a series of independent recommendations to government across all sectors of economic infrastructure (transport, energy, digital, waste, water and flood management).”

Rail reform and High Speed Rail 2 (West Midlands – Crewe) Bill (pages 101 to 103)

Last year the Government launched a ‘root and branch’ review of the railways led by Keith Williams. The Review is the first comprehensive assessment of the rail system in a generation and is tasked with making ambitious proposals to reform the rail industry.

The Review is focused on reforms that will put passengers at the heart of the railway, provide value for taxpayers and deliver economic, social and environmental benefits across Britain.

The Government will publish a White Paper informed by the recommendations next year. Among other things, this will end the complicated franchising model to create a simpler, more effective system.

The Government has also committed to a number of major investments in the railway, including:

o Midlands Rail Hub, to improve services around Birmingham and throughout the West and East Midlands;

o Northern Powerhouse Rail;

o Reopening a number of the lines and stations closed under the

Beeching cuts in the 1960s; and,

o Significant upgrades to urban commuter and regional services outside London.

Separate to the wider review of the railway system, the Government awaits the review, of the High Speed Two (HS2) network led by Doug Oakervee which is looking at whether and how to proceed with HS2, including the benefits and impacts; affordability and efficiency; deliverability; and scope and phasing, including its relationship with Northern Powerhouse Rail.

Without prejudice to the Oakervee Review’s findings and any Government decisions that follow, it is expected that the High Speed Rail (West Midlands – Crewe) Bill will be revived in this Parliament. The Bill was first introduced in Parliament in July 2017 and will enable Phase 2a of HS2. The Bill passed through the House of Commons and had completed Second Reading in the House of Lords before the dissolution of the previous Parliament. Following revival it would begin its next stages in the House of Lords.

English Devolution (pages 109 to 110):

My government…will give communities more control over how investment is spent so that they can decide what is best for them.”

We are committed to levelling up powers and investment in the regions across England and allowing each part of the country to decide its own destiny.

This means proposals to transform this country with better infrastructure, better education, and better technology.

We will publish a White Paper setting out our strategy to unleash the potential of our regions, which will include plans for spending and local growth funding.

It will provide further information on our plans for full devolution across England, levelling up powers between Mayoral Combined Authorities, increasing the number of mayors and doing more devolution deals.

These increased powers and funding will mean more local democratic responsibility and accountability.

We remain committed to the Northern Powerhouse, Midlands Engine, and Western Gateway strategies.

Business rates (page 111):

To support business, my government will…bring forward changes to business rates.

The Government is committed to conducting a fundamental review of business rates.

The Government recognises the role of business rates as a source of local authority income and will consider input from the sector as part of the review of business rates. Further details on the review will be announced.

We are committed to increasing the retail discount from one-third to 50 per cent, extending that discount to cinemas and music venues, extending the duration of the local newspapers discount, and introducing an additional discount for pubs.

We will also progress legislation to bring forward the next business rates revaluation by one year from 2022 to 2021 and move business rates revaluations from a five-yearly cycle to a three-yearly cycle. This will allow the Government to press ahead with delivering an important reform that has been strongly welcomed by business.

More frequent revaluations will ensure that business rates bills are more up- to-date reflecting properties’ current rental values. Moving to three-yearly revaluation will make the system more responsive to changing economic conditions.

Environment Bill (pages 112 to 114):

To protect and improve the environment for future generations, a bill will enshrine in law environmental principles and legally-binding targets, including for air quality. It will also ban the export of polluting plastic waste to countries outside the Organisation for Economic Co-operation and Development and establish a new, world-leading independent regulator in statute.

Establishing new long term domestic environmental governance based on: environmental principles; a comprehensive framework for legally-binding targets, a long term plan to deliver environmental improvements; and the new Office for Environmental Protection.

Improving air quality by setting an ambitious legally-binding target to reduce fine particulate matter (PM2.5), the most damaging pollutant to human health. The Bill also increases local powers to address sources of air pollution and brings forward powers for the Government to mandate recalls of vehicles when they do not meet legal emission standards.

Protecting nature by mandating ‘biodiversity net gain’ into the planning system, ensuring new houses aren’t built at the expense of nature and delivering thriving natural spaces for communities. We will improve protection for our natural habitats through Local Nature Recovery Strategies and give communities a greater say in the protection of local trees.

Preserving our resources by minimising waste, promoting resource efficiency and moving towards a circular economy. These measures include extended producer responsibility, a consistent approach to recycling, tackling waste crime, introducing deposit return schemes, and more effective litter enforcement. We will also ban the export of polluting plastic waste to non- OECD countries, consulting with industry, NGOs, and local councils on the date by which this should be achieved.

Introducing charges for specified single use plastic items. This will build on the success of the carrier bag charge and incentivise consumers to choose more sustainable alternatives.

Managing water sustainably through more effective legislation to secure long- term, resilient water and wastewater services. This will include powers to direct water companies to work together to meet current and future demand for water, making planning more robust, and ensuring we are better able to maintain water supplies.

Climate change (pages 115 to 118):

My government will continue to take steps to meet the world-leading target of net zero greenhouse gas emissions by 2050. It will continue to lead the way in tackling global climate change, hosting the COP26 Summit in 2020.”

We will build on our progress with an ambitious programme of policy and investment, with our first Budget prioritising the environment. This will help deliver the green infrastructure needed to improve lives and achieve Net Zero, including by investing in carbon capture, offshore wind, nuclear energy, and electric vehicle infrastructure so that individuals are always within 30 miles of a chargepoint. We will make sure we help lower energy bills investing in the energy efficiency of homes, schools and hospitals. And away from home, we will use our £1 billion Ayrton Fund to develop affordable clean energy for developing countries.

The government will continue to use our position as a global leader in this area by hosting the UN Climate Change Summit in Glasgow in 2020 (COP26). We will ask our partners to match the UK’s ambition.

With a focus on nature based solutions at our upcoming COP summit, at home we will be substantially increasing our tree-planting commitment and creating a £640 million new Nature for Climate fund.

Our natural environment is one of our greatest assets, and can play a crucial role in the fight against climate change. This government will:

introduce a landmark Environment Bill – the first one in twenty years – that will create an ambitious environmental governance framework for post Brexit, as well as banning the export of plastic waste to non-OECD countries;

establish a new £500 million Blue Planet Fund to help protect our oceans from plastic pollution, warming sea temperatures and overfishing;

lead diplomatic efforts to protect 30 per cent of the world’s oceans by 2030; and,

in our trade negotiations, never compromise on our high environmental protection

We will also ensure that we are protecting our citizens by investing £4 billion in flood defences and lowering energy bills by investing £9.2 billion in the energy efficiency of homes, schools and hospitals.

We will increase our ambition on offshore wind to 40GW by 2030, and enable new floating turbines.

We will support decarbonisation of industry and power by investing £800 million to build the first fully deployed carbon capture storage cluster by the mid-2020s; and £500 million to help energy-intensive industries move to low-carbon techniques.

Constitution and democracy (pages 126 to 127):

A Constitution, Democracy and Rights Commission will be established. Work will be taken forward to repeal the Fixed-term Parliaments Act.”

Setting up a Constitution, Democracy & Rights Commission that will:

Examine the broader aspects of the constitution in depth and develop proposals to restore trust in our institutions and in how our democracy operates. Careful consideration is needed on the composition and focus of the Commission. Further announcements shall be made in due course.

It’s a blue, blue, blue, blue Christmas.

The usual askew perspectives and commentary will continue here in 2020.

Simon Ricketts, 21 December 2019

Personal views, et cetera

Unsuccessful Attacks On Guildford & Waverley Local Plans

Two recent salutary lessons from Surrey for campaigners tempted to resort to the courts, having failed to persuade the relevant local plan inspector.

Guildford local plan

In Compton Parish Council v Guildford Borough Council (Sir Duncan Ouseley, 4 December 2019), three separate claimants, Compton Parish Council, a Mr Julian Cranwell and Ockham Parish Council, “opposed the principle and extent of land which the submitted Plan proposed to release from the Green Belt, as well as the allocation for development of specific sites proposed for release from the Green Belt.

The main general issue (numbered 2 in the list used by the parties) was whether the Inspector had erred in law in his approach to what constituted the “exceptional circumstances” required for the redrawing of Green Belt boundaries on a local plan review. This had a number of aspects, including whether he had treated the normal as exceptional, and had failed to consider rationally, or with adequate reasons, why Green Belt boundaries should be redrawn so as to allow for some 4000 more houses to be built than Guildford BC objectively needed. The scale of the buffer did not result, it was said, from any consideration of why a buffer of such a scale was required but was simply the sum of the site capacities of the previously allocated sites. There were two other general issues (1) and (7): (1) had the Inspector considered lawfully or provided adequate reasoning for not reducing the housing requirement, leaving some needs unmet to reflect the Green Belt policy constraints faced by Guildford BC? (7) Did Guildford BC breach the Environmental Assessment of Plans and Programmes Regulations 2004 SI No.1633, in deciding not to reconsider what might be reasonable alternatives to the proposed Plan when, in 2018, the objectively assessed housing needs figure was reduced from 12,426 to 10,678, with housing land supply allocations totalling 14,602. It was submitted that it ought to have considered alternatives such as removing the development allocation in the Green Belt from one or more of the contentious large sites.”

But there were also site specific grounds of challenge. The first site specific issue, (4), relating to the former Wisley airfield, was the adequacy of reasons given by the Inspector in his report on the PE for reaching conclusions which, it was said, were inconsistent with the views expressed by an Inspector, accepted by the Secretary of State, on an appeal against the refusal of planning permission for a major residential development at the former Wisley airfield, taking up most of the Local Plan allocation there. The appeal Inquiry began before the PE and the decision emerged in the course of the PE. The second site specific issue at Wisley, (5a), concerned the extent of land removed from the Green Belt yet not allocated for development, termed “white land”; issue (5b) concerned the lawfulness and effect of the submission of the 2017 version of the Plan, when the further consultation on it was restricted to the 2017 changes, and did not encompass unchanged aspects of the 2016 version, upon which there had already been consultation in 2016. The third issue, (8), concerned the lawfulness of the approach by the Inspector to the air quality impact of the Wisley allocation on the Thames Basin Heaths Special Protection Area, the SPA. It was initially said that the Conservation of Habitats and Species Regulations 2017 SI No.2012 required the decision-maker to leave mitigation and avoidance measures out of account; but the argument was refined so that it attacked the assessment that there would be no adverse effects, on the basis that there would still be exceedances of critical thresholds, even though the baseline levels of pollution would have reduced.

The site-specific issues raised in respect of the Blackwell Farm allocation were, (3), that the local exceptional circumstances relied on by the Inspector were not legally capable of being regarded as “exceptional”, and that strategic and local “exceptional circumstances” overlapped, leading to double counting of exceptional circumstances. The other issue at Blackwell Farm was, (6), whether the Inspector erred in law in the way he considered the new access road. This would have to climb the escarpment to link to the A31, and a section of which would pass through the part of the Surrey Hills Area of Outstanding Natural Beauty, the AONB, which lay to the north of the A31. Should he have concluded that this would be “major development” in the AONB and so face a policy obstacle to its approval which could put the allocation at risk, or even prevent its being delivered? He should at least have taken this risk into account.”

After assessing the extent of local housing need the inspector concluded that there was “to strategic-level exceptional circumstances to alter the Green Belt boundary to meet development needs in the interests of the proper long-term planning of the Borough.

Some highlights:

Issue 1: did the Inspector consider and provide legally adequate reasons for his conclusion that the objectively assessed need for 10678 dwellings should be met in full, notwithstanding the consequent need for the release of land from the Green Belt?

There is no definition of the policy concept of “exceptional circumstances”. This itself is a deliberate policy decision, demonstrating that there is a planning judgment to be made in all the circumstances of any particular case; Calverton Parish Council v Nottingham City Council [2015] EWHC 1078 at [20], Jay J. It is deliberately broad, and not susceptible to dictionary definition.”

“”Exceptional circumstances” is a less demanding test than the development control test for permitting inappropriate development in the Green Belt, which requires “very special circumstances.” That difference is clear enough from the language itself and the different contexts in which they appear, but if authority were necessary, it can be found in R(Luton BC) v Central Bedfordshire Council [2015] EWCA Civ 537 at [56], Sales LJ. As Patterson J pointed out in IM Properties Development Ltd v Lichfield DC [2014] EWHC 2240 at [90-91 and 95-96], there is no requirement that Green Belt land be released as a last resort, nor was it necessary to show that assumptions upon which the Green Belt boundary had been drawn, had been falsified by subsequent events.”

“Mr Kimblin put forward Mr Cranwell’s contention that the supply of land for ordinary housing, even with the combination of circumstances found here to constitute exceptional circumstances by the Inspector, could not in law amount to “exceptional circumstances.” I cannot accept that, and I regard it as obviously wrong.”

“The Inspector has already considered the pressing needs, and the consequence of them not being met. Here he considers whether the consequence of those needs being met, through releases of Green Belt land, mean that they should nonetheless not be met. His conclusion is clear: there is no justification for applying a restriction on the quantity of development. His reasoning is clear and adequate: land can be found within the Green Belt, through boundary changes, with relatively limited impacts on openness, elaborated elsewhere in the Report, and without causing severe or widespread harm to its purposes. He also considered whether further land could be made available in the urban areas; IR 81-2; these had been thoroughly investigated; significant constraints existed; any extra yield from sites which could have potential not yet earmarked, “would fall a long way short of making the scale of contribution towards meeting overall development needs that would enable the allocated sites in the Green Belt to be taken out of the Plan.”

“I reject the Claimants’ first ground of challenge. This issue and whether a policy restraint should be applied to the OAN was considered and the Inspector’s conclusion that there should be no restraint below OAN was supported by ample reasoning.”

“Issue 2: Was the conclusion that there were exceptional circumstances justifying the allocations of housing land, released from the Green Belt, to provide headroom of over 4000 dwellings above the 10678 OAN lawful, and adequately reasoned?”

“…in my judgment, once meeting the OAN is accepted as a strategic level factor contributing to “exceptional circumstances”, as it has to be for the purpose of this Issue in the light of my conclusions on Issue 1, it follows that the provision of headroom against slippage and for flexibility to meet changes, “future-proofing” the Plan, as the Inspector put it, would also contribute to such circumstances.”

“...having read the strategic and Local-level exceptional circumstances, which have to be taken together, I had no sense of having read something illogical or irrational, or which strained the true meaning of “exceptional circumstances.” I can see that a different approach to the quantity of headroom might have commended itself, but that was plainly a matter of planning judgment.”

Issue 7 Sustainability Appraisal”

“The Claimants contended, through Mr Harwood, that once the OAN was reduced from 12426 to 10678 as a result of the publication in September 2018 of the 2016 household projections, there should have been a further SA examining reasonable alternatives which matched allocations to the OAN figure of 10678, with the Wisley airfield allocation in mind in particular however.”

“I cannot accept these arguments. No complaint is made of the SA process before the effect of the 2016 household projections was considered. First, the objectives of the Plan had not changed; the objective was not the provision of 10,678 dwellings; it was not simply the provision of the OAN plus an appropriate buffer. I have set out how the objective was phrased in the earlier versions of the SA. An updated SA, confining itself to the provision of 10,678 dwellings, omitting any buffer, would not have been a reasonable alternative, as previous SAs concluded, and would have been for an objective other than that of the Plan.

The judgment that an OAN without any buffer was not a reasonable alternative, was a reasonable judgment for Guildford BC to make. It could only be attacked on rationality grounds; see Spurrier and Others v Secretary of State for Transport and Others [2019] EWHC 1070 (Admin) at [434]. That would be untenable.

Second, whether the effective increase in the headroom or buffer, but without change to the level of housing allocation, was a significant change or one likely to have significant effects was a matter for the judgment of Guildford BC, as the decision-maker. It is clear that the overall level of housing supply was within the range already considered. All the housing allocations had already been evaluated. The judgment that the change was not significant or likely to have significant effects which had not already been considered, was reasonable.

Third, the only point in considering further alternatives would have been whether one or two large sites should be removed from the allocations. The smaller, sequentially less preferable Green Belt releases around villages, totalling 945 dwellings, could not have been omitted from any reduced buffer because of their importance in meeting the five-year housing supply in the early years of the Plan after adoption. Guildford BC and the Inspector did in fact consider whether the increased level of buffer in the same total supply, with a reduced OAN, was appropriate. They each concluded that it was, and that no large Green Belt site allocation should be now omitted. The arguments for deleting one or more of the 3 large sites were raised; indeed there was an obvious issue about whether that would be an appropriate response. Guildford BC and the Inspector considered it. Guildford BC was entitled to conclude that a further round of SA was quite unnecessary. The Inspector agreed, in his Report. There was no misdirection as to the law; it was for Guildford BC to judge whether there had been a change in circumstances or in the plan which warranted a further SA. This judgment can only be challenged on public law grounds; the only one available would be irrationality. There was no irrationality in the decision.”

Even if there had been an error, and assuming that the omission of one or two of the large sites would have been a reasonable alternative to consider, it is perfectly obvious that the allocations in the adopted plan would have been the preferred choice. That issue was considered by both Guildford BC and by the Inspector. Omission of a further SA would have been a procedural error causing no prejudice, let alone substantial prejudice to anyone. Even if one going to vires, I would have exercised my residual discretion to take no action, given that it is perfectly obvious that it could have had not the slightest effect on the outcome of the Plan.”

“Issue 4: the Wisley airfield appeal decision and the way in which the Inspector dealt with it.”

“I do not consider that it was necessary for the LP Inspector to take the AIR and analyse all its views against his views on the various topics. There is perhaps a difference in emphasis in the LP IR comments on the Green Belt releases in general “relatively limited impacts on openness” and their not causing “severe or widespread harm”, and the AIR comment that there would be “very considerable harm” to the Green Belt from the Wisley allocation. However, as IR 182 makes clear, on a comparative basis, the Wisley site was of medium sensitivity. Its development would avoid putting pressure on other Green Belt areas of greater sensitivity. This comparative exercise, underpinned by the Green Belt and Countryside Study, was not a task which the appeal Inspector could undertake or attempted to undertake; but was essential for the LP Inspector. The same applies to the assessment of the degree of visual prominence: the LP IR comments on the allocation as “fairly self-contained visually,” being on a plateau and not prominent, whereas the AIR thought it visible along its length to highly sensitive receptors, though quite well screened in certain respects. But the sites they consider differed in an important respect and with an adverse effect for the appeal scheme. It is obvious from the AIR that the narrowness of the appeal site exacerbated the prominence of the appeal development. The LP Inspector also considered that specific design objectives, should be in the Plan, via a Main Modification, Policy A35.The effect on the character of the area is referred to in IR 181, but is a factor outweighed by the compelling strategic-level exceptional circumstances. The LP Inspector obviously considered the appeal decision, but found the circumstances he had to deal with, compelling.”

“Accordingly, I reject the contention that it is not possible to see why the LP Inspector reached the conclusion he did, having considered, as he obviously did, what the AIR and Secretary of State had to say. In the circumstances known to all participants about the differing tasks, the reasons are sufficient. There was no need to identify, issue by issue, where the LP Inspector did or did not, to some degree, agree or disagree with the appeal Inspector. Such differences as there may be are explained by the different focus of their tasks and the different cases they were considering.”

Issue 8: The air quality impact of the allocation at the former Wisley airfield”

“It is perfectly clear, in my judgment, that Guildford BC, whose task it was to undertake the HRA, did consider whether significant adverse effects were likely from the development proposed in the Local Plan; it then undertook an appropriate assessment to see whether there would be no adverse effect on the SPA. That could not be answered, one way or the other, by simply considering whether there were exceedances of critical loads or levels, albeit rather lower than currently. What was required was an assessment of the significance of the exceedances for the SPA birds and their habitats. Guildford BC did not just treat reductions in the baseline emissions or the fact that with Plan development, emissions would still be much lower than at present, as showing that there would be no adverse effect from the Plan development. The absence of adverse effect was established by reference to where the exceedances of NOx and nitrogen deposition would occur, albeit reduced, and a survey based understanding of how significant those areas were for foraging and nesting by the SPA birds. The approach and conclusion show no error by reference to the Regulations or CJEU jurisprudence. I have set out the 2019 HRAs at some length. The judgment is one for the decision-maker, as to whether it is satisfied that the plan would not adversely affect the integrity of the site concerned; the assessment must be appropriate to the task. Its conclusions had to be based on “complete precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effect of the proposed works on the protected site concerned”; People Over Wind. But absolute certainty that there would be no adverse effects was not required; a competent authority could be certain that there would be no adverse effects even though, objectively, absolute certainty was not proved; R (Champion) v North Norfolk District Council [2015] UKSC 52 at [41], and Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174 at [78]. The same approach applies, following the Dutch Nitrogen case, to taking account of the expected benefits of measures not directly related to the plan being appropriately assessed.”

Issue 6: The access road at Blackwell Farm and major development in the AONB

“The issue before me was whether the Inspector reached a conclusion on whether the access road was “major development” in the AONB, to which NPPF [116] applied; a contrary conclusion was said to be irrational. If he had reached no conclusion, he ought to have considered the risk to the allocation, and hence to its deliverability, which would arise when a planning application was made, and a decision could be reached that it was indeed “major development”, with all the weight, adverse to the development, which would have to be given to such a conclusion.”

“I can see the force in the argument from Mr Findlay and Mr Turney that the Inspector has in substance concluded that, with the Main Modifications, the means have been provided for the access road to be constructed in such a way that it would not constitute “major development.” However, he has not expressly so concluded, and it would not have been for him to express the decisive view on the point, or to do so in advance of the detailed design of the road. He has reached the view that the road would not inevitably be “major development”, and that it could be designed and landscaped so that the risk of a significant hurdle to the delivery of the allocation is minimised. I do not consider that he needed to go further. In effect, the degree of risk, with the modification, was not such that it made him find the allocation to be unsound. He considered the issue; his language makes his view clear that he sees no significant risk, and is adequately reasoned.

But it cannot be ignored that he has included an extent of headroom, complained of by the Claimants, in part because he recognised the difficulties which larger sites face. This issue was not expressly part of his consideration of the justification for the headroom, but hurdles and delays in the way of approving infrastructure would have been well within his contemplation of the sort of problems which larger sites face.”

Three days in court, eleven barristers, all claims rejected.

Waverley local plan

In CPRE Surrey v Waverley Borough Council (Court of Appeal, 31 October 2019) CPRE Surrey and POW Campaign were appealing against the dismissal of their applications at first instance which had sought to challenge the adoption of the Waverley local plan. They contended that “the council erred in law in adopting the Local Plan Part 1 because the inspector who carried out the examination of it under section 20, when identifying the objectively assessed need (“OAN”) for housing in the borough of Waverley, took an unlawful approach to the treatment of the unmet housing need in the neighbouring borough of Woking. CPRE Surrey also complain that the relevant reasons in the inspector’s report were inadequate. The crucial point, common to both appeals, concerns the inspector’s recommended Main Modification 3, which the council accepted, whose effect was to increase the annual housing requirement figure in Waverley by 83 dwellings per annum – 1,575 dwellings over the whole plan period – to address unmet housing need in Woking.

There were four issues: “first, whether the inspector’s approach to the assessment of unmet housing need in Woking was unlawful and his conclusion unreasonable; second, whether his assessment was vitiated by a failure to seek further information; third, whether he was obliged to recommend a review of the Local Plan Part 1; and fourth, whether his reasons were inadequate”.

At paragraph 35 of his judgment Lindblom LJ sets out the principles applying where there is a challenge to a planning decision-maker’s assessment of housing need, by reference to the relevant case law.

He addresses the claimants’ arguments that the inspector had adopted an incorrect approach in failing to assess Woking’s objectively assessed need before deciding to increase Waverley’s housing requirement figure:

“I cannot accept those submissions, skilfully presented as they were. The fatal weakness in such arguments is that they draw the court beyond the line dividing the role of the judge from the role of the planning decision-maker – territory where the court will not intrude. In my view the judge’s analysis is consistent with the general principles recognized and applied in the authorities. As she held, the inspector’s approach to the issue of unmet housing need in Woking was lawful, and his conclusion did not exceed the range of reasonable planning judgment.”

“In the circumstances he was entitled to conclude, as a matter of planning judgment, that it was reasonable to calculate the necessary uplift to Waverley’s OAN by taking 50% of “the figure for unmet need identified through the [2015 SHMA] process”. This conclusion entailed not merely his judgment on the appropriate proportion, but, in effect, a composite judgment on both amount and proportion: hence the figure of 83 dwellings per annum. Another inspector might have reached a different conclusion on the same evidence, but this does not mean that the conclusion he did reach was legally bad. The conclusion that the appropriate proportion was 50% – rather than, say, 60% or 70% or 75% – was comfortably within the bounds of reasonable planning judgment. In judging this to be the appropriate proportion, the inspector took care not to overstate the amount of Woking’s unmet need that should be met in Waverley. This was a cautious judgment, which deliberately allowed for the uncertainties to which he had referred. The ingredients of the calculation itself were clear. They had been identified at the examination, and were explained in the inspector’s conclusions (paragraphs 26 and 29 and footnote 9). And the figure it produced was specific enough for its purpose. It was not unreasonably approximate.”

As for the attack on the adequacy of his reasons:

Generally at least, the reasons provided in an inspector’s report on the examination of a local plan may well satisfy the required standard if they are more succinctly expressed than the reasons in the report or decision letter of an inspector in a section 78 appeal against the refusal of planning permission. As Mr Beglan submitted, it is not likely that an inspector conducting a local plan examination will have to set out the evidence given by every participant if he is to convey to the “knowledgeable audience” for his report a clear enough understanding of how he has decided the main issues before him.

But the crucial point here is that the inspector explained sufficiently why he had concluded that 50% of Woking’s unmet housing need should be planned for in the Local Plan Part 1. His reasons leave no room for sensible doubt on that issue. He did not have to set out the representations in which various possible conclusions – a wide range of them – were put forward, or summarize the relevant evidence. Participants in the process were familiar with the submissions and evidence. The inspector’s reasons had only to set out the main parts of his assessment and the essential planning judgments in it. They did that.”

That reasoning is clear, adequate and intelligible. Nothing that ought to be there is left out. Nothing is obscure. The appellants disagree with the outcome of the inspector’s assessment. But they cannot say that the reasons he gave in those four paragraphs of his report left them unable to see why he concluded as he did.

Simon Ricketts, 6 December 2019

Personal views, et cetera

Image courtesy of Surrey Life

Planning Or Politics? Significant London Planning Decisions 2019

Here is the skeleton of a presentation I am giving at the RTPI London Annual Summit 2019 on 20 November 2019. You’ll have to come along for the flesh, as it were.

I just wanted to do a basic trawl of what has been happening over the past year in terms of:

• Mayoral directions to refuse

 

• Mayoral directions that he is to be the local planning authority

 

• Secretary of State call-in decisions

 

• Secretary of State decisions on recovered appeals

 

Mayoral directions to refuse

 

Former Tesco car park, Conington Road/LB Lewisham

Affordable housing provision, viability review mechanism

Direction 9 March 2019

 

The Tulip/City of London

Urban design, historic environment (including Tower of London world heritage site), strategic views, pedestrian movement, cycle parking

Direction 15 July 2019

 

Harrow School/LB Harrow

Direction 29 November 2018 – no very special circumstances for development in MOL

Secretary of State allowed on appeal 31 October 2019, with costs award against Mayor

 

Mayoral directions that he is to be the LPA

 

Former Biscuit Factory, Bermondsey/LB Southwark – 1,342 build to rent units and other uses

Direction 7 May 2019 – housing and affordable housing

Public consultation on scheme amendments including to increase housing to 1,548 build to rent units and affordable housing from 27.5% to 35%

No representation hearing yet arranged

 

Osiers Road/LB Wandsworth – commercial with 168 resi units

Direction 10 June 2019 – housing and affordable housing

Raised AH offer from 39% habitable rooms to 100%

Representation hearing and planning permission 18 October 2019

 

100 West Cromwell Road/RB Kensington & Chelsea – 145 affordable housing units, 282 market residential units and other uses

Direction 1 July 2019 – housing and affordable housing

Revisions to scheme including increased quantum of affordable housing (427 total of which 186 affordable), reduced parking and improved community leisure offer. Increased height and other design changes

Representation hearing anticipated February 2020

 

Homebase site, Manor Road/LB Richmond-upon-Thames – 385 residential units and other uses

Direction 29 July 2019 – housing and affordable housing

No representation hearing yet arranged

 

Kidbrooke Station Square/LB Greenwich – new bus station interchange, commercial, 619 residential units – applicant Notting Hill Genesis & TfL

Direction 5 August 2019 – housing and affordable housing

Representation hearing was to be 31 October 2019

 

Kensington Forum Hotel/RB Kensington & Chelsea – hotel, service apartments, 46 affordable housing units (100%)

Direction 5 November 2018

RBKC JR, direction quashed by consent order 16 April 2019

2nd Direction 23 April 2019 – visitor economy, housing and affordable housing

Public consultation on scheme amendments including increase in residential units from 46 to 62

Representation hearing and planning permission 21 June 2019

2nd JR by RBKC, going to full hearing 21 November 2019

 

Secretary of State call-in decisions

 

No London call-in decisions in 2019 but:

 

Purley Baptist Church/LB Croydon – 106 residential units and other uses

Refused by Secretary of State by 3 December 2018 decision letter , following 12 April 2017 call-in

Quashed by consent of parties March 2019, back with Secretary of State for redetermination

 

Vauxhall Cross Interchange/LB Lambeth – hotel and 677 residential units

Called in by the Secretary of State, May 2019

Inquiry commences 17 December 2019

 

Holocaust Memorial, Victoria Tower Gardens/Westminster CC

Called in by Secretary of State, November 2019, at request of applicant following WCC non-determination

 

Secretary of State decisions on recovered appeals

 

Slade Green SRFI/LB Bexley & Dartford BC

Dismissed 7 May 2019, following inspector’s recommendations

 

1 Cambridge Heath Road/LB Tower Hamlets – replacement foodstore, 471 resi units and other uses

Dismissed 10 June 2019 against inspector’s recommendations

• Fails to meet NPPF’s aims of creating an inclusive place

• Harm from loss of daylight and sunlight

 

The Curve, Great West Road/LB Hounslow – up to 325 residential units and other uses

Dismissed 19 July 2019 against inspector’s recommendations

• Harm to setting of designated heritage assets

Decision subject to legal challenge, permission to proceed to a full hearing, no hearing date yet

 

Harrow School (see earlier)

 

Simon Ricketts, 15 November 2019

Personal views, et cetera

Pic courtesy of https://commons.m.wikimedia.org/wiki/User:Colin/London .

More Plans Grounded: West Of England; Sevenoaks; London

My 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism commented on the previous Secretary of State’s 18 June 2019 letter to PINS, which stressed the need for pragmatism on the part of local plan inspectors.

MHCLG must be careful not to shoot the messenger. Inspectors are continuing to point out basic flaws in plans which, in most cases, have been pretty clear to the planning community for some time. Aside from the passive aggressive approach of that letter, which I hope will not be supported by the new Secretary of State, inspectors are also facing increasing hostility from some local political leaders.

West of England joint spatial strategy

I referred in my 17 August blog Gestation Of An Elephant: Plan Making to the inspectors’ letter dated 1 August 2019, which was provisionally recommending withdrawal of the West of England joint spatial strategy. Since then the inspectors have set out their detailed reasoning in a subsequent letter dated 11 September 2019 which focuses on the “key points which have led us to conclude that there are very substantial soundness problems with the plan.

The plan had identified that 17,000 dwellings needed to be provided at 12 “strategic development locations”. The inspectors pointed out that despite the fact that the plan comprised two housing market areas and despite evidence as to various local housing needs, “no requirement figures (either precise or indicative) have been considered or identified for any individual settlements, for each local authority area or for any other sub- area of the West of England as a whole. Thus, we understand that the SDLs were selected on the basic presumption that any candidate SDL anywhere within the plan area could meet the plan area’s housing needs just as well as any other candidate.” There was no robust assessment of reasonable alternatives.

[We] conclude that robust evidence has not been provided to demonstrate that the 12 SDLs proposed in the plan have been selected against reasonable alternatives on a robust, consistent and objective basis. Consequently, given that the SDLs are an integral part of the plan’s spatial strategy, we cannot conclude that the spatial strategy is itself sound. Additionally, the absence of a robust SDL selection process or a strategy which is not based on specific SDLs means that there is not a clear basis on which to select alternative/additional SDLs (either in a review of the JSP or in local plans) should this be necessary if one were to “fall away” (eg because of deliverability problems) or if the quantum of development needs were to change over time.”

The inspectors plainly were aware of that need for “pragmatism” (indeed the advice is acknowledged paragraph 49 as a matter to which they attached “great weight”). They say this:

We first set out our concerns about the spatial strategy and the SDL selection process in June 2018, a few weeks into the examination. In the spirit of pragmatism and recognising the desirability of getting a sound plan in place, we gave you the opportunity to prepare a considerable amount of further evidence in an attempt to address these concerns. Unfortunately, this has not been successful and for the reasons detailed above our concerns remain and, indeed, have deepened. In the light of this we consider that any further work to simply re-justify the selection of SDLs included in the plan or any change in the way the existing strategy is merely articulated in the JSP, could not now be considered to be anything other than retrospective justification of the plan. Consequently, it would be very unlikely to persuade us that the SDLs, and thus the spatial strategy overall, were selected on a robust, consistent and objective basis.

The approach to SDLs was not the only issue. The inspectors also set out their concerns as to:

⁃ “the approach to, and policy steer on, the purpose, amount and distribution of non-strategic growth; and

⁃ the plan’s proposals for overall employment land provision if, as we believe is likely, we were to conclude that policy 4 is not sound, including proposals for, or the policy steer on, growth at Bristol Port and Bristol Airport if, as we believe is likely, we were to conclude that the plan is not currently sound in these particular respects.”

Furthermore:

Additionally, if we were to conclude that the contended OAN of 102,800 is significantly underestimated, there would be a need to provide for a significantly higher objective-assessed need for housing in the plan.

Moreover, each of these elements cannot be considered in isolation, as the preferred and justified approach in relation to one is likely to impact on at least some of the others. Furthermore, there would need to be robust justification that there are exceptional circumstances to justify any proposed alterations of the Green Belt boundary for housing or any other purposes. It is also very likely that key policy decisions would need to be taken in respect of most or all of these elements of the plan.”

Finally, there is recognition of the confusion caused to local communities by endless stages of re-consultation in relation to flawed plans:

At the hearings we heard from a number of examination participants who were already confused by the processes of, and multiple rounds of consultation undertaken in, getting the plan to this stage. This was particularly so given the parallel processes of developing and consulting on the emerging local plans for each authority and the Joint Local Transport Plan 4. Continuing with the examination along the, undesirable, lines detailed above would also be likely to be more complicated in consultation and public participation terms than returning to the plan preparation stage, thus potentially hindering the community’s ability to comment on and influence the plan.

Consequently, whilst we recognise that the Councils’ preference might be to continue with the examination if at all possible and, although we will not reach a final decision on the way forward until we have had the opportunity to consider the Councils’ response to this letter, we remain of the view that withdrawal of the plan from examination is likely to be the most appropriate option.”

Sevenoaks district local plan

The Sevenoaks plan is another one that has pretty much crash-landed on take off. The hearing sessions started on 24 September 2019. On 17 October 2019, the inspector wrote a one and a half page letter to the council to indicate that she has “significant concerns about a number of aspects of the Plan, both in terms of legal compliance and soundness.

She states:

“My main concern relates to the lack of constructive engagement with neighbouring authorities to resolve the issue of unmet housing need and the absence of strategic cross boundary planning to examine how the identified needs could be accommodated. Indeed, the Council did not formally ask neighbouring authorities if they were in a position to address its unmet housing need until just before the Local Plan was submitted for Examination. I am not satisfied, therefore, that the Council has addressed this key strategic matter through effective joint working, but has rather deferred it to subsequent Plan updates. This is evidenced by the ‘actions’ set out in the Statements of Common Ground with neighbouring authorities submitted to the Examination. I consider this to be a significant failure in the Council’s Duty to Co-operate. Any failure of the Duty to Co-operate cannot be rectified during the Examination and therefore the only option is for a Report recommending non-adoption to be issued or for the Plan to be withdrawn from Examination.

Furthermore, I have significant concerns about the soundness of the Plan in respect of a number of areas including the approach to Sustainability Appraisal, the chosen Strategy for Growth, the assessment of the Green Belt and housing supply and distribution.”

What is no doubt frustrating to the council, aside from the very visible and expensive failure, which will have significant practical consequences not just for the district but for plan-making by nearby authorities, is the lack at present of more detailed reasoning. A more detailed letter is promised. However, surely nothing excuses the council’s intemperate response, which is hardly likely to assist a positive outcome. The council’s disappointment is clear enough from its formal response dated 21 October 2019:

The Inspector’s initial conclusions are at odds with the independent advice that the Council received in advance of submission, including our discussions with the Government’s own Planning Advisory Service (PAS), the opinion of a QC and industry experts – including former senior Planning Inspectors. This extensive peer review was undertaken in good faith, to inform the examination process and avoid the circumstances that we now appear to find ourselves in.”

However, surely comments attributed to the council’s leader in its press statement issued the same day are inexcusable, for instance:

To call into question an evidence-led approach comes to the root of our concerns with the actions of the Inspector. If we are not to follow the evidence to make our Plan then the Government may just as well dictate how many homes an area should have and then pick sites, we need to put an end to the thinly veiled charade that local plans are in any way locally led.

“But the most damning comment has to be left for the Inspector’s approach to publish her brief note before allowing the Council to either see her full reasoning or have a chance to respond. This suggests her mind is far from open and she and her masters have made their minds up.

“Sevenoaks District Council will stand up for its residents and the District’s environment against what we believe is a huge abuse of the process by the Planning Inspectorate and the Government department responsible. We will not allow them to run roughshod over the huge weight of evidence we have amassed, community views we have collated and the few powers we have left as a planning authority.

London Plan 2019

We finally have the inspectors’ report into the London Plan, together with their detailed recommendations.

I set out the peculiar legal framework that applies to the London Plan in my 23 April 2017 blog post Make No Little Plans: The London Plan. An additional peculiarity is that the Mayor of course does not have to accept the inspectors’ recommendations. If he does not intend to accept the recommendations, he has to send the Secretary of State a statement of his reasons (see regulation 9 of the The Town and Country Planning (London Spatial Development Strategy) Regulations 2000) and the Secretary of State has the power to direct that modifications to the plan be made “if it appears to the Secretary of State that it is expedient to do so for the purpose of avoiding (a) any inconsistency with current national policies …, or (b) any detriment to the interests of an area outside Greater London” (see section 337 of the Greater London Authority Act 1999).

London First’s Sarah Bevan, who played a crucial role at the examination, representing the interests of London First members, has prepared a good summary of the inspectors’ findings.

The inspectors conclude that subject to recommended modifications the plan meets the tests of soundness and provides an appropriate basis for the strategic planning of Greater London. However, some of the conclusions and recommended modifications will not have made welcome reading for the Mayor and his team, for instance in relation to:

Viability

The inspectors identify that the viability assessment work underpinning the plan is broadly acceptable but has shortcomings, particularly in relation to specialist housing for the elderly and purpose built student accommodation, and the assumptions about the redevelopment of sites with currently operating supermarkets. The inspectors are not persuaded that “these forms of development would be viable if they are required to meet all of the policy requirements in the Plan”. (paragraphs 80 and 81).

To be effective in London, the approach to viability at the planning application stage set out in current national policy and guidance will require consideration of the viability evidence supporting both the London Plan but also the relevant local plan. In other words, it is only where there is an up to date local plan in place supported by appropriate viability evidence, that we would expect full weight to be given to the assumption that planning applications that fully comply with all relevant development plan policies are viable.” (paragraph 24).

Small sites strategy realism and overall housing target

The inspectors recommend that the overall housing target should be reduced due to given that the target for what can be achieved from small sites is “aspirational” and “not realistic”. “In some cases the imposition of such large increases in this element of the target is heavy-handed and not helped by the lack of detailed engagement with the boroughs in deciding the small site capacity methodology. As some suggested a more nuanced approach might have borne fruit.” (paragraph 165).

Green belt

The inspectors’ “inescapable conclusion…that if London’s development needs are to be met in future then a review of the Green Belt should be undertaken to at least establish any potential for sustainable development. Therefore we recommend that this Plan include a commitment to a Green Belt review [PR35]. This would best be done as part of the next London Plan. Given its strategic nature and to ensure consistency the review should be led by the Mayor and should involve joint working with authorities around the administrative boundary as well as the boroughs. This would form the basis for the Mayor to consider Green Belt release as a means to deliver housing and industrial development that cannot be accommodated in the existing built up area or in adjoining areas.” (paragraph 457).

The inspectors also recommend amending the policies that preclude boroughs reviewing green belt boundaries applying the “exceptional circumstances” test and that seek refusal for development proposals that would cause harm to the green belt without reference to the “very special circumstances” test.

Airports, fracking

The inspectors identify policies, such as those in relation to Heathrow and other airports and in relation to fracking, which are inconsistent with national policy or in relation to which there is insufficient justification.

So what stance will the Mayor take towards these recommendations? There has been a certain scepticism on the part of many potential participants in the process, borne of what has happened with previous versions of the plan, that, no matter what the recommendations, those which are unpalatable to the Mayor will not be accepted.

Particularly with the Mayoral election process looming, it is perhaps unsurprising that this is how it may well play out. He has already come out with some pretty hostile comments, reported in a Guardian piece on 21 October 2019: Sadiq Khan to fight government attempt to water down green policies.

The prospects of a new adopted London plan before the 7 May 2020 Mayoral election appear to be fading fast, although it will be interesting to see the extent to which the existing ministerial team at MHCLG are prepared to stand up for the inspectors’ green belt approach.

The inspectors’ conclusions will also have implications for authorities outside London, in the rest of the south east, many of which are green belt authorities already failing to plan to meet local housing needs:

“If London cannot accommodate all of its development needs, the most significant strategic issue facing the wider South East for the coming decades will be how and where to accommodate that growth outside London in a way that will contribute towards achieving sustainable development. Many representors, with a wide variety of interests, have argued that this could and should be achieved. However, it is clear from past experience and evidence about increasing development pressures that areas in the wider South East outside London already face, that there are no easy solutions or clearly identified potential growth locations. Furthermore, it is apparent from the representatives from the South East England Councils, East of England Local Government Association and individual local authorities outside London that there is limited appetite to consider the possibility of accommodating significant amounts of additional development associated with the growth of London.” (paragraph 111)

Much as every politician tries to avoid the very subject, isn’t green belt the underlying theme of this entire blog post?

Simon Ricketts, 26 October 2019

Personal views, et cetera

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