Summer Of LURB

What progress has there been on the Levelling-up and Regeneration Bill since it was introduced into the House of Commons on 11 May 2022 (see my 14 May 2022 blog post Does LURB Herald A More Zonal Approach to Planning After All?)?

The Second Reading debate was held on 8 June 2022 and I have just been reading the Hansard transcript– it wasn’t particularly edifying and I should just have relied on Nicola Gooch’s excellent summary in her 9 June 2022 blog post Tainted LURB: What can we learn from the Levelling Up & Regeneration Bill’s Second Reading?

I was left feeling that the nuances of how our wretchedly complicated, but still, at some level, functional system are lost in the political chatter. Of course, these sessions aren’t “debates” as such but in large measure a long succession of disjointed interventions and special pleading. Has anyone yet coined the term NIMC? There was certainly a lot of “not in my constituency” and very little discernible appreciation of the utter reliance of this country on private sector risk-taking and funding for most new homes (regardless of tenure) and employment-generating development. How can the development of 300,000 homes a year (confirmed by Michael Gove in Select Committee on 13 June 2022 still to be the target) be remotely possible in this political and fiscal climate? So many MPs assert the case for a lower target for their particular constituency: we know what underlies the clamour against centralisation of power (a theme we’ll come back to shortly). Development is held again and again to be the culprit for failing public services, lack of infrastructure, waiting lists at GPs’ surgeries and so on – ahem, it’s new development that ends up paying for much of this – existing residents should look rather at the ways in which the Government chooses to manage and fund  the provision of health care and other services.  And if the complaint is not that new residents are overwhelming local services (not true) it’s that developers are securing permissions and then choosing not to building them out (not true, although there are certainly unnecessary delays largely caused by the clunkiness of the planning system itself: you want to amend your development proposals to reflect the inevitable market changes or regulatory requirements since you first applied for planning permission years ago? Well that’s not going to be a simple process at all my friend). (Beauty as a way to securing greater acceptance of development? Despite the Government having alighted upon that particular agenda, driving the proposals around local design codes for instance, that issue seemed to receive little airtime).

Rant over. 

The Bill entered Committee stage on 21 June 2022. The Public Bill Committee first heard evidence from various witnesses and then started line by line consideration of the Bill on 28 June 2022. They have not yet reached the planning provisions but the transcript of the discussion so far is here.

The Levelling-up, Housing and Communities Select Committee, chaired by Clive Betts MP, is holding a mini inquiry into the Bill. Michael Gove MP, Stuart Andrew MP and Simon Gallagher all gave evidence on 13 June 2022, which was slightly more illuminating. For instance, an exchange in relation to design codes from the session:

“Chair: Are we going to have the same level of consultation on the supplementary plans and design codes [as on the local plan]?

Simon Gallagher: Yes. One of the objectives of design codes is that they are locally popular, which is going to require a degree of engagement. Supplementary plans are created as one of the vehicles by which there would be opportunity for proper engagement, or legal force design codes. One of the problems with design codes at the moment is that they are often produced as supplementary planning guidance, which has no legal force.

One thing we have done in the Bill, subject to Parliament’s views, is to create something that is a legal device, a supplementary plan, which must be consulted on. Design codes must be provably popular and we are using the Office for Place to champion the best means of that community engagement.

One of the themes that has dominated discussion of the Bill has been a concern that it could lead to a centralising of power, for instance by way of the requirement that decisions should be made in accordance with national development management policies (as well as local plans), unless material considerations “strongly” indicate otherwise – thereby putting this potentially amorphous concept of national development management policies (the extent of which is for the Government to determine and which can be added to or amended by the Government with as little prior consultation as it chooses) on the same level as statutory local plans. 

Landmark Chambers barristers Paul Brown QC and Alex Shattock have created some waves with their 30 May 2022 briefing note on the provisions in the Levelling Up and Regeneration Bill concerning public participation in the planning system for the campaign group Rights Community Action:

“a) The Bill represents a significant change to the existing planning system. It undermines an important planning principle, the primacy of the development plan, by elevating national development management policies to the top of the planning hierarchy.

b) Unlike development plans, which are produced locally via a statutory process that involves considerable public participation, the Bill contains no obligation to allow the public to participate in the development of national development management policies.

c) The Bill also introduces two new development plan documents, spatial development strategies and supplementary plans. The Bill provides for very limited opportunities for public participation in the production of these documents.

d) The Bill introduces a new mechanism to allow the Secretary of State to grant planning permission for controversial developments, bypassing the planning system entirely. There is no right for the public to be consulted as part of this process.

e) Overall, in our view the Bill radically centralises planning decision-making and substantially erodes public participation in the planning system.”

Clive Betts pursued this theme with the witnesses on 13 June 2022:

“Chair: I am told that this is new in the way it is written into legislation. We have had very interesting legal advice from Paul Brown QC and Alex Shattock from Landmark Chambers, and it might be helpful if the Committee wrote to you with some of the questions that they have raised, which are pretty serious accusations of a centralisation that these measures are bringing about.

Michael Gove: Of course, I would be more than happy to explain the position and, indeed, any distance that these proposals place between themselves and the existing practice. I do not believe that they do significantly, but I am very happy to engage with the advice that the Committee has sought, and with others as well.

Simon Gallagher: Just to add to that, the Secretary of State referred a few minutes ago to the national planning policy framework prospectus that we were going to publish in July. We intend to set out in that how we can use these powers most effectively. That will give us the basis for proper engagement. I accept that, on the face of the Bill, it is a bit hard to read our intentions, so we need a little bit more detail and explanation out there, which will help.”

There was a further session on 20 June 2022, with evidence given by Victoria Hills RTPI), Hugh Ellis ((TCPA)and Chris Young QC. 

Clive Betts’ has subsequently written to Michael Gove asking for his response by 4 July 2022 to a number of points in the “opinion” by Paul Brown QC and Alex Shattock (NB for what it’s worth, it’s not an opinion – barristers are careful in their use of language, it’s just a briefing note). 

This month we can also expect to see the Government’s prospectus as to its intended approach to revising the NPPF as well as how it intends to draw up its national development management policies. 

We are going to be running our own discussion on Clubhouse on the “who will have the power?” question, at 6 pm on 19 July. More details soon but do join here. Indeed, if you would like to speak do let me know – we would like a diverse range of voices and views. 

I will also be speaking at the National Planning Forum event “The good, the bad and the beautiful – the Levelling Up and Regeneration Bill – a planning panacea?” on 5 July and hope to explore the issues a little further alongside an excellent panel of fellow speakers.

Simon Ricketts, 2 July 2022

Personal views, et cetera

Pic courtesy AARP

IL Defined

Except that you can’t really define the Infrastructure Levy yet. This blog post summarises what we know so far and asks some open questions.

Town Legal’s summary of the Bill and related announcements contains this section on the Infrastructure Levy, for which thanks go to Clare Fielding:

8. Part 4 – Infrastructure Levy

8.1 Part 4 of the Bill introduces a charge to be known as the “Infrastructure Levy” in England. In addition the Secretary of State is given the power to designate the HCA a charging authority for the purposes of the Infrastructure Levy.

8.2 The Community Infrastructure Levy (CIL) is abolished in England, other than Mayoral CIL which continues to exist in Greater London.

8.3 CIL continues to apply in Wales.

8.4 Schedule 11 of the Bill inserts new sections 204A to section 204Z1 into the Planning Act 2008 (“PA 2008”) giving the Secretary of State the power to make regulations (IL regulations) providing for the imposition in England of the Infrastructure levy. The regulation-making power creates the framework for an IL regime that looks is strikingly similar to CIL in some respects, but with some significant differences. Key features:

(a) Like CIL, LPA to be IL charging authority and IL regulations can so designate other councils and bodies as well;

(b) Like CIL, a person will be able to assume IL liability before development commences, and becomes liable when development commences;

(c) Like CIL, the IL regulations must make provision for liability when no-one has assumed liability;

(d) Like CIL, the IL regulations may make provision about matters such as partial liability, apportionment of liability, transfer of liability and exceptions from and reductions in liability;

(e) Like CIL, IL to be calculated when development “first permits development”, and IL becomes due on commencement [but Regulations may provide for it to be paid on account or in instalments];

(f) Like CIL, “development” is a defined term and IL regulations must define planning permission, define the time at which the planning permission is regarded as first permitting development;

(g) Like CIL, IR regulations must make a charitable exemption where the building is wholly or mainly used for charitable purposes, and may provide for charitable exemption in other circumstances;

(h) A charging authority must issue a charging schedule and in setting rates must have regard to the level of affordable housing funding from developers over a given period, the economic viability of development, the potential economic effects of including land value increase of certain matters, the amount of IL received from developments over a given period and the charging authority’s infrastructure delivery strategy;

(i) Unlike CIL, the IL regulations may allow for a much wider variety of approaches to rate-setting: differential rates for different uses or zones areas; nil or reduced rates; rates calculated not just by floorspace but by numbers of units, buildings, or by allocation of space within units or buildings, or in any other way;

(j) Unlike CIL, IL is to be charged as a proportion of property value (this has not yet been fully fleshed out);

(k) Like CIL, charging schedules must be subject to public examination procedures;

(l) IL to be applied in the same way as CIL, to fund the provision (etc) of infrastructure to support the development of the charging authority’s area. “Infrastructure” includes affordable housing (as the PA 2008 did before that reference was removed by the CIL Regulations), and the regulation-making power still includes power to amend the definition of infrastructure for IL purposes;

(m) Unlike CIL, there is an interesting “relationship with other powers” paragraph (para 204Z1), under which the IL regulations may include provision about how the following powers are to be used or are not to be used:

(i) Part 11 of the PA 2008 on CIL;

(ii) section 70 TCPA 1990 (planning permission);

(iii) section 106 TCPA 1990 (planning obligations); and

(iv) section 278 Highways Act 1980 (execution of works).

8.5 The Policy Paper explains further that it is the Government’s intention indeed to reduce the scale of s106 planning obligations so that s106 agreements will be used:

(1) on the largest sites in place of IL (provided that the value of the infrastructure being provided in that way is not less than that which would be achieved under IL); and

(2) on other sites where “narrowly focused” s106s will be used to provide onsite infrastructure.

8.6 The Policy paper also makes reference to removing the role of negotiations in delivering affordable housing, suggesting that the Government’s intention is that AH will be delivered through the IL.”

As set out in the policy paper, when providing for the detailed regime by way of Regulations, the Government will:

Introduce a new ‘right to require’ to remove the role of negotiation in determining levels of onsite affordable housing. This rebalances the inequality between developers and local authorities by allowing local authorities to determine the portion of the levy they receive in-kind as onsite affordable homes.

Consider how the Levy should be applied to registered provider-led schemes.

Require developers to deliver infrastructure integral to the operation and physical design of a site – such as an internal play area or flood risk mitigation. Planning conditions and narrowly targeted section 106 agreements will be used to make sure this type of infrastructure is delivered.

Detail the retained role for section 106 agreements to support delivery of the largest sites. In these instances, infrastructure will be able to be provided in-kind and negotiated, but with the guarantee that the value of what is agreed will be no less than will be paid through the Levy.

Retain the neighbourhood share and administrative portion as currently occurs under the Community Infrastructure Levy.

Introduce the Levy through a ‘test and learn’ approach. This means it will be rolled out nationally over several years, allowing for careful monitoring and evaluation, in order to design the most effective system possible.

By way of IL the Government is attempting to extend the Community Infrastructure Levy, massively, in three directions:

(a) to make local planning authorities responsible for the delivery of affordable housing, using funds raised by the levy – meaning that the monies raised from development will be at many multiples of current CIL rates.

(b) to charge the levy on the basis of gross development value rather than floorspace.

(c) to make introduction of the levy compulsory.

I have now read the relevant parts of the Bill (sections 113 to 115 and Schedule 11), explanatory notes and policy paper many times and I must confess that there is much that I still don’t understand or which is still a blur pending further detailed work.

This is how the levy was sold to us in the Planning For The Future White Paper (August 2020):

The process for negotiating developer contributions to affordable housing and infrastructure is complex, protracted and unclear: as a result, the outcomes can be uncertain, which further diminishes trust in the system and reduces the ability of local planning authorities to plan for and deliver necessary infrastructure.

Securing necessary infrastructure and affordable housing alongside new development is central to our vision for the planning system. We want to bring forward reforms to make sure that developer contributions are:

responsive to local needs, to ensure a fairer contribution from developers for local communities so that the right infrastructure and affordable housing is delivered;

transparent, so it is clear to existing and new residents what new infrastructure will accompany development;

consistent and simplified, to remove unnecessary delay and support competition in the housebuilding industry;

buoyant, so that when prices go up the benefits are shared fairly between developers and the local community, and when prices go down there is no need to re-negotiate agreements.” (paragraph 4.5)

Now that we see what is emerging, I do not believe that anyone is suggesting that IL will be simpler than CIL. Undeniably it will be more complex (and indeed in London we will need to grapple both with CIL and IL – the work is doubled).

But I am concerned that it will be less predictable as well. Why does predictability matter? The main inflexion points in a typical development are as follows:

1. the contract to acquire the property, pricing-in likely development costs, including CIL/IL

2. scheme formulation so as to arrive at a proposed quantum and mix of development which is likely to be financially viable whilst working within likely planning constraints

3. negotiation of section 106 agreement and conditions such that permission can be issued

4. securing development funding and potential pre-lets and land parcel sales

5. letting the construction contract

6. sale of completed development, whether individual plot/flat sales or investment disposal.

If a reliable estimate of IL liability is not available for stages 1 to 3 and a concluded figure, which can relied upon as a final outcome, is not available for stages 4 to 6, development becomes much more difficult. How do you price, allocate risk and enable each party to the development to decide whether they are prepared to press the button?

The current proposals seem very blurred so far as to how and when gross development value, and therefore the amount of IL payable having regard to any relevant local thresholds, will be determined.

In terms of “how”, will it be for each developer to submit its valuer’s estimate of GDV for the completed development (or relevant completed phase), presumably prior to commencement of development? Or will there be some independent assessment? Or will there be any standardised values (for instance for development below a defined scale or value)? It is difficult enough with CIL where the moving parts are floorspace levels for each use plus the application of reliefs and exemptions. To these moving parts will now be added the inherent subjectivity that comes with valuation (accentuated where you have a type of development without readily available comparables, or subject to unusual restrictions or constraints?) and then the application of so far undefined thresholds – building costs for the area have been mentioned, but what about, for instance, existing pre-development land values (and will these be sufficiently site-specific)? The number at stake will also be much larger than is currently the case with CIL. Each process is going to be strongly argued over as the outcome will directly impact the financial bottom line of the developer and, ultimately, project viability.

In terms of “when”, will we be able to go “nap” on a figure at commencement of development or is the figure to be revisited on development completion or sale? Will any procedures for review or appeal carry on after development has commenced or will commencement of development be the cut-off?

If the authority subsequently requires affordable housing to be provided in the scheme by way of the “right to require”, how does this get taken into account in the calculation of GDV?

At what stage will a developer have certainty that a scheme is regarded as sufficiently large or strategic for IL not to apply? Can he opt in or out? Will there be local thresholds (which would inevitably influence scheme size, depending whether IL was regarded as a more or less advantageous mechanism than simply relying on section 106)?

It seems that “in kind” section 106 or other types of agreements will be required but the actual quantum of IL attributable to the development will not be known for certain at the stage the section 106 agreement is completed.

Will an authority’s targeted quantum of affordable housing, both borough/district wide and for particular areas or sites, be set out in its local plan, or infrastructure delivery statement? And will developers in future be bringing forward development proposals without reference to any anticipated affordable housing element? The local messaging is going to be complicated.

How rigorously will IL charging schedules be examined? The underlying valuation work and the thresholds to be applied will be critical.

How can we make sure that IL proceeds are used in the right way and that more affordable housing is indeed delivered, as well as the infrastructure needed to enable particular development proposals to come forward without delay?

Will the system be robust and workable in appeal situations where the developer and authority may not necessarily see eye to eye?

It is going to be fascinating to work through these sorts of issues as the proposals take shape. At this stage, what protections do we want to see in the Bill itself to safeguard against the detailed regime subsequently not living up to the Government’s promises? The Government’s commitment to a “test and learn” approach to the introduction of IL is welcome but of course risks adding to complexity by creating a patchwork of different processes dependent on geography and/or when schemes come forward – and accepts that there are inevitably going to be mistakes and unanticipated outcomes along the way.

I wasn’t particularly planning to run a clubhouse session this Tuesday but if anyone would like to join a discussion on these sorts of issues, let’s re-think that. Let me know!

Finally, another plug for the Town Legal/Landmark Chambers webinar at 5 pm on Monday 6 June back on the theme of housing: “Will the Bill deliver more or less housing? Yes or no?” Simon Gallagher (Department of Levelling Up, Housing and Communities) will join Zack Simons (Landmark Chambers), Kathryn Ventham (Barton Willmore now Stantec) and myself in a session chaired by Town Legal’s Meeta Kaur. Join us here.

Simon Ricketts, 28 May 2022

Personal views, et cetera

Details from image by Megan Bucknall courtesy of Unsplash

Integrated Rail Plan, Unplanned?

Wouldn’t it be good if Government plans were proper plans, subject to detailed assessment of their environmental effects, including formal assessment of reasonable alternatives and with the requirement for further assessment of material changes? But we lost that argument a long time ago, in R (HS2 Action Alliance) v Secretary of State for Transport (Supreme Court, 22 January 2014). The Supreme Court held that the Government’s January 2012 white paper “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” was not subject to any requirement for strategic environmental assessment as it was not a plan that “set the framework” for subsequent decision making.

As per the judgment press summary:

“DNS is an elaborate description of the HS2 project, including the thinking behind it and the government’s reasons for rejecting alternatives. However, it does not constrain the decision-making process of the authority responsible, which is Parliament. Formally, and in reality, Parliament is autonomous, and not bound by any “criteria” contained in previous Government statements.

So we were to take it all with a pinch of salt, including images such as this, showing the proposed “Y” route, to Manchester (and ultimately Glasgow) and Leeds (and ultimately Edinburgh via Newcastle):

Department for Transport, January 2012

Bear all this in mind when you read the Department for Transport’s Integrated Rail Plan for the North and Midlands published on on 18 November 2021. The plan “confirms” £54bn of spending on rail and local transport in the Midlands and North in addition to the £42bn already included for HS2 Phases 1 and 2a between London, the West Midlands and Crewe and has these images showing the journey time savings proposed:

What an opportunity to make good promises as to Levelling Up and Building Back Better.

The accompanying press statement summarises the proposals as follows:

“It is a £96 billion plan that outlines how major rail projects, including HS2 Phase 2b, Northern Powerhouse Rail and Midlands Rail Hub, will be delivered sooner than previous plans so that communities, towns and cities across the North and Midlands are better connected with more frequent, reliable and greener services and faster journey times.

The plan confirms that the government will:

• build 3 new high-speed lines including:

HS2 from Crewe to Manchester

HS2 from the West Midlands to East Midlands Parkway, enabling HS2 trains to join existing lines to serve Nottingham and Derby city centres (unlike original plans)

• a new high-speed line between Warrington, Manchester and Yorkshire, as part of Northern Powerhouse Rail

electrify and/or upgrade 3 existing main lines including:

• the Transpennine Main Line between Manchester, Leeds and York

• the Midland Main Line between London St Pancras, the East Midlands, and Sheffield

upgrading and improving line speeds on the East Coast Main Line

The plan also confirms that the government will progress options to complete the Midlands Rail Hub and spend £100 million to look at how best to take HS2 trains to Leeds, including assessing capacity at Leeds station and starting work on the West Yorkshire mass transit system.”

Piecing together the implications one sees that the previous commitment to build HS2 to Leeds in accordance with that 2012 plan has now become simply an extension to East Midlands parkway with HS2 trains then able to go on existing lines to Nottingham and Derby. The long anticipated “Y” becomes a “\”. As recently as 28 May 2021, New Civil Engineer had reported the Transport Secretary saying exactly the opposite: DfT commits to HS2 eastern leg after months of uncertainty.

There is much else to unpack. Those maps stress journey time reductions (which is of course not the only factor at all in securing an improved rail network) but so much is down to the detail: routes, specifications, delivery timescales and of course (HS2 to Leeds being a perfect example) the risk of elements subsequently simply being lopped off. Any supporting assessment work is simply unavailable (see my opening comments).

Let’s go back to New Civil Engineer: The integrated rail plan is a half-baked plan which fails rail passengers (New Civil Engineer, 22 November 2021 – a piece incidentally which accepts the logic of the decision not to extend HS2 to Leeds).

Then let’s turn to the knowledgable Jonathan Stott at Gateley Hamer: Integrated Rail Plan: Midlands wins by country mile and North West in 2nd as Yorkshire handed mass-transit consolation (22 November 2021).

As Jonathan identifies, Yorkshire is potentially the biggest loser, with also a retreat from the proposals for Northern Powerhouse Rail, a new-build high speed line between Leeds and Manchester. The regional press had a field day:

West Yorkshire Mayor Tracy Brabin has written to Grant Shapps setting out the various failings of the proposals, saying that she and other West Yorkshire leaders “are angry and frustrated by the promises that have been seemingly broken. Our communities feel betrayed”. (26 November 2021).

Transport for the North: Integrated Rail Plan branded ‘woefully inadequate’ (18 November 2021)

The reconsideration (not yet a final scrapping) of HS2 between the East Midlands and Leeds brings little relief incidentally to those whose homes and businesses have long been blighted – safeguarding of the route will remain whilst further analysis is done.

How HS2 U-turn has sent £115 million down the drain after it was spent buying houses on abandoned route – and we can’t even sell them off yet (Mail Online, 19 November 2021)

HS2: Housing estate in limbo after eastern leg axed (BBC, 18 November 2021)

Manchester of course still gets HS2, but with proposals for a terminus station there, with an above ground, rather than tunnelled, route – long a cause for concern on the part of Andy Burnham: Government planning ‘to put HS2 on stilts through Manchester’ (Guardian, 19 November 2021). Fat chance incidentally of any extension of HS2 to Scotland any more it would appear. The Transport Secretary hardly oozes sympathy in his reactions to Burnham’s concerns:

“If we spend £6bn or £7bn building the station underground at Manchester, we will take away from Liverpool, Leeds, Hull or some of the other places that are calling for money … Manchester is a principal beneficiary of this entire programme and we wish his constituents well in their new journey times.”

Journey times, journey times.

Meanwhile, whilst London is certainly suffering in terms of the unrelieved financial pressures upon Transport for London (see eg Nick Bowes’ Centre for London 10 November 2021 blog post Mind the gap: What’s next for the funding crisis at the heart of London’s transport system), there is at least finally some good news around the corner: Crossrail starts final testing phase ahead of opening (IanVisits, 22 November 2021).

The integrated rail plan and what it does or doesn’t do for levelling up is going to be the topic for this week’s clubhouse Planning Law Unplanned session. Guest speakers cover all the bases: from Birmingham the aforementioned Jonathan Stott, from Manchester Urbed’s Vicky Payne, from Leeds barrister Stephanie Hall and from London my Town partner Raj Gupta. Join us via this link.

Courtesy the Bash Mash and JonLawton10

Net Zero Strategy: We Can Have Cake & Eat It

For years, going green was inextricably bound up with a sense that we have to sacrifice the things we love. But this strategy shows how we can build back greener, without so much as a hair shirt in sight. In 2050, we will still be driving cars, flying planes and heating our homes, but our cars will be electric gliding silently around our cities, our planes will be zero emission allowing us to fly guilt-free, and our homes will be heated by cheap reliable power drawn from the winds of the North Sea. And everywhere you look, in every part of our United Kingdom, there will be jobs. Good jobs, green jobs, well-paid jobs, levelling up our country while squashing down our carbon emissions.”

More cakeism from our prime minister, this time in his foreword to the Government’s Net Zero Strategy: Build Back Greener (19 October 2021).

The document is of course hugely important. Together with the Government’s heat and buildings strategy published the same day, this is the detailed plan, presented to Parliament pursuant to the Climate Change Act 2008, which sets out how our country will achieve its net zero carbon target by 2050. But it has a wider role ahead of next month’s COP 26 event in Glasgow, both pour encourager les autres and, more formally, to be “submitted to the United Nations Framework Convention on Climate Change (UNFCCC) as the UK’s second Long Term Low Greenhouse Gas Emission Development Strategy under the Paris Agreement.

It’s a detailed document, 368 pages – full of initiatives, science, business exhortation, more acronyms than you could shake a stick at and a fair degree of management consultancy/policy wonk speak (for instance, repeated use of “no regrets” and “low regrets” options terminology). After an evening’s scrolling I’m in no place to determine whether it’s brilliant or bonkers in its world-leading optimism. In fact, as someone always in need of a mental map as to how these sorts of strategy fit into the wider international and national legislative and policy framework, it was a relief to get to the technical annex (from page 306) and the client science annex (from page 362), which made for refreshingly clear if bracing reading.

The document largely dismisses any idea that there are any hard choices ahead. We have all seen the media gossip as to internal differences of view within the Conservative party, for instance UK meat tax and frequent-flyer levy proposals briefly published then deleted (Guardian, 20 October 2021) and Tempers fray as Tories fail to unite for Cop26 climate talks (The Times, 23 October 2021). The withdrawn BEIS research paper Net Zero: principles for successful behaviour change initiatives – key principles from past government-led behavioural change and public engagement initiatives makes interesting reading but is hardly any smoking gun.

The lack of any emphasis being given to the planning system as a mechanism for helping to deliver change and regulate against unwelcome outcomes is telling. I was dutifully gathering the snippets but I then read this very good piece by Michael Donnelly which pieces them together very much how I would have liked to have done: Net zero strategy promises to ’embed’ transport decarbonisation in spatial planning and reiterates NPPF review (Planning magazine, 20 October, behind paywall).

The fullest and most direct reference to planning in the whole strategy is probably on page 267:

National planning policies already recognise the importance of sustainable development and make clear that reducing carbon emissions should be considered in planning and decision making. The National Model Design Code provides tools and guidance for local planning authorities to help ensure developments respond to the impacts of climate change, are energy efficient, embed circular economy principles, and reduce carbon emissions. The government is considering how the planning system can further support our commitment to reaching net zero. We will make sure that the reformed planning system supports our efforts to combat climate change and help bring greenhouse gas emissions to net zero by 2050. For example, as part of our programme of planning reform we intend to review the National Planning Policy Framework to make sure it contributes to climate change mitigation and adaptation as fully as possible.”

There is no indication of how the planning system can help, or when the NPPF is to be reviewed. Of course the twin dangers are of, on the one hand, a set of changes in the near future that address net zero and then a further set of changes to reflect whichever changed direction planning reform more generally is to embark upon following the pause to the white paper thinking, and, on the other hand, a long long wait, whilst everything is knitted together.

The role of the planning system is of course intertwined with the various proposals within the Environment Bill, given plenty of airtime in the document, and, after all this is policy bingo, there are plenty of references to levelling up.

The present vacuum ahead of any hard news on the NPPF or wider reforms is of course being filled with noise, suggestions, exhortations (see eg There’s a climate emergency, and the planning system is not helping (Andrew Wood, CPRE, 18 October 2021) and, particularly recommended, joint guidance published on 19 October 2021 by the RTPI and TCPA on planning and climate change). You’re at a gig and the lights have gone down, the background music has been killed and there’s the occasional roadie scuttling across the stage.

Normal people can stop reading at this point and jump to the end. But for the cut and paste junkies, here are some other quotes from along the way:

Deliver four carbon capture usage and storage (CCUS) clusters, capturing 20-30 MtCO2 across the economy, including 6 MtCO of industrial emissions, per year by 2030

Following the Phase 1 of the Cluster Sequencing process, the Hynet and East Creating the skilled workforce to deliver net zero and putting UK Coast Clusters, will act as economic hubs for green jobs in line with our ambition supply chains at the forefront of global markets to capture 20-30 MtCO2 per year by 2030. This puts Teesside and the Humber, Merseyside and North Wales, along with the North East of Scotland as a reserve cluster, among the potential early SuperPlaces which will be transformed over the next decade.”

“We will also take a place-based approach to net zero, working with local government to ensure that all local areas have the capability and capacity for net zero delivery as we level up the country. And Government is leading the way – embedding climate into our policy and spending decisions, increasing the transparency of our progress on climate goals, and providing funding to drive ambitious emissions reductions in schools and hospitals.”

“These opportunities show that net zero and levelling up go hand in hand. Delivering net zero allows us to boost living standards by supporting jobs and attracting investment in the green industries of the future, which can be in areas that need this the most. Crucially, delivering net zero also involves supporting workers employed in high carbon industries that will be affected by the transition, by giving them the skills they need to make the most of new opportunities in the green economy. But the link between net zero and levelling up is wider than just the economy, net zero can deliver wider benefits for people and communities across the UK by helping spread opportunity and restore pride in place.

We are already taking action to make the most of these opportunities. We have embedded a net zero principle in our levelling up funding initiatives, such as the Levelling Up Fund and the Towns Fund, so that these schemes can contribute to meeting our net zero targets and help places to reduce their carbon impacts. Later this year, we will publish a Levelling Up White Paper. This will build on the actions the government is already taking to both deliver net zero and level up across the country, including the ones set out in this strategy, and set out new interventions to improve livelihoods and drive economic growth in all parts of the UK.”

The characteristics of the net zero challenge – requiring action by multiple parties across the public and private sectors, delivery at pace, and management of large uncertainties – underline the need for strong coordination in policy development and clear signalling to markets. Government taking a systems approach to policy will help to navigate this complexity. We must consider the environment, society, and economy as parts of an interconnected system, where changes to one area can directly or indirectly impact others. This will help to ensure we design policy to maximise benefits, account for dependencies, mitigate conflicting interests and take account of learning as we go. It reduces the risk of unintended consequences, ensuring individual decisions designed to help achieve net zero do not end up hindering it or other important objectives.

New standards and regulation.

In certain areas government will need to support and complement market-led decarbonisation with standards and regulation to ensure that, where appropriate, green options are pursued, while high carbon options are phased out. This will help to accelerate low regrets areas like energy efficiency, such as ensuring our homes are built to new standards, and high impact areas like zero emission vehicles. It will also ensure suppliers of higher-carbon technologies and fuels provide low carbon alternatives, driving deployment at scale.

Planning and infrastructure.

Low carbon solutions rely on transforming the infrastructure needed to deliver them. Increasing electricity generation needs to be accompanied by building out a flexible grid. Alongside dedicated hydrogen infrastructure, new CO2 transport and storage infrastructure is needed for the use of CCUS which will require investment of around £15 billion from now to the end of the Carbon Budget 6 period. We need to ensure that low carbon energy generation can be connected to sources of demand geographically, which means improving knowledge of local circumstances and opportunities for generation. We also recognise the importance of the planning system to common challenges like combating climate change and supporting sustainable growth.

Sustainable use of resources.

Net zero will mean maximising the value of resources within a more efficient circular economy. It will need a significant increase in the use of certain types of resources – critical minerals like lithium, graphite, and cobalt, as well an increased demand on resources like copper and steel – from manufacturing green technologies to building large-scale infrastructure. This will require new robust supply chains and provide economic opportunities, but there will be environmental trade-offs, and potential negative impacts on habitats, biodiversity, and water resources to be managed carefully. For example, ammonia emissions from anaerobic digestion, which can use waste as a feedstock, can also affect biodiversity and health.

Understanding land use trade-offs.

Like other resources, our land is finite and competition for it will need to be managed as we rely on natural resources and use land for multiple new purposes, such as perennial energy crops and short rotation forestry for energy generation, while allowing for afforestation and peatland restoration to sequester and avoid emissions. We will also need to ensure net zero is compatible with wider uses of land such as agriculture, housing, infrastructure, and environmental goals. These land use challenges are exacerbated by the impact of climate change on the availability of productive land and water in future.”

“New Buildings. We will introduce regulations from 2025 through the Future Homes Standard to ensure all new homes in England are ready for net zero by having a high standard of energy efficiency and low carbon heating installed as standard. This should mean that all new homes will be fitted with a low carbon heat source such as a heat pump or connected to a low carbon heat network. To reinforce this, we will consult on whether it is appropriate to end new gas grid connections, or whether to remove the duty to connect from the Gas Distribution Networks. As an interim measure to the Future Homes Standard, we plan to introduce an uplift in standards, effective from June 2022, for England that would result in a 31% reduction in carbon emissions from new homes compared to current standards. We will also respond to our consultation for the Future Buildings Standard for new non-domestic buildings.”

“47. We are driving decarbonisation and transport improvements at a local level by making quantifiable carbon reductions a fundamental part of local transport planning and funding. Local Transport Plans (LTPs) – statutory requirements that set out holistic place-based strategies for improving transport networks and proposed projects for investment – will need to set out how local areas will deliver ambitious carbon reductions in line with carbon budgets and net zero.

48. We will embed transport decarbonisation principles in spatial planning and across transport policy making. Last year, the government set out proposals for a new and improved planning system, central to our most important national challenges, including combating climate change and supporting sustainable growth. The National Model Design Code, published in July this year, guides local planning authorities on measures they can include within their own design codes to create environmentally responsive and sustainable places. The National Model Design Code provides tools and guidance for local planning authorities to help ensure developments respond to the impacts of climate change, are energy efficient, embed circular economy principles and reduce carbon emissions.”

The UK has a limited amount of land and delivering net zero will require changes to the way this land is used, for example, for afforestation, biomass production, and peat restoration. Opportunities for land to be used for multiple purposes, such as agroforestry will help to make sure land use for decarbonisation purposes is balanced with other demands, such as housing development and food production. These changes are likely to have varying effects on wider environmental outcomes and may completely alter the character of some landscapes and rural livelihoods (see section below). Land use change must be designed in a systemic, geographically targeted way with appropriate local governance and delivery structures which consider the complex range of interacting social, economic, and demographic factors. To support this, government is developing a Net Zero Systems Tool which aims to allow key decision makers to gain new insights and understanding, by highlighting dependencies and trade-offs within the land use system, as well as by demonstrating the knock-on effects of proposed policies. In addition, through the Environment Bill, the Government is introducing Local Nature Recovery Strategies (LNRS), a spatial planning tool for nature, allowing local government and communities to identify priorities and opportunities for nature recovery and nature-based solutions across England. The Bill includes a specific duty on all public authorities to “have regard” to relevant LNRSs and the spatial information they provide will support the development of local plans and other land use change incentives. Delivery of priorities and opportunities identified in LNRS will be supported by a range of delivery mechanisms including our environmental land management schemes, and in particular, the Local Nature Recovery scheme. By 2028, Defra’s current plans are for total spend to be evenly split between farm-level, locally tailored, and landscape-scale investment within ELM.”

“Local green infrastructure and the environment

34. Government will launch a new National Framework of Green Infrastructure Standards in 2022. This will support local areas and regions to deliver well-designed green infrastructure where it is most needed to deliver multiple benefits. These networks of green and blue spaces and other natural features, including trees, provide an opportunity to benefit local economies and bring about long-term improvements in people’s health and wellbeing. At the same time, it can help us to mitigate and adapt to climate change, through capturing and storing carbon, shading and cooling, and reducing flooding.

35. The Environment Bill is also creating a new system of spatial strategies called Local Nature Recovery Strategies to target action for nature and to drive the use of nature-based solutions to tackle environmental challenges like climate change. It is expected that there will be approximately 50 Local Nature Recovery Strategies covering the whole of England with no gaps and no overlaps. Preparation of each Strategy will be locally led and collaborative, with local government taking a critical role. This will provide local government with a new tool through which they can work with local partners to identify where effort to create or restore habitat would have greatest benefit for climate mitigation, whilst also having positive benefits for nature and the wider environment. Between 2021 and 2027, we will be doubling our overall investment in flooding and coastal erosion to £5.2 billion.

36. In addition, £200 million will be invested in the Innovative Flood and Coastal Resilience Innovation Programme. This will help over 25 local areas over six years to take forward wider innovative actions that improve their resilience to flooding and coastal erosion. The Environment Agency is also working with coastal authorities on a £1 million refresh of Shoreline Management Plans.”

Normal people you can start reading again…

I hope that was at least a taster and I recommend that you dip into the document itself. Whatever happens to the planning system, the initiatives set out in the document are undoubtedly going to be central to our lives and work over the years to come.

We’re going to be discussing all this for an hour or so from 6 pm on Tuesday 26 October 2021 on clubhouse. I’ve never been to a book club session but maybe it’ll be a bit like that, without the tortilla chips or wine. Join us. Link to the app here.

Simon Ricketts, 23 October 2021

Personal views, et cetera

Extract from photo by Angèle Kamp , courtesy Unsplash.

Development Embargos: Nitrate, Phosphate & Now Water

Just as solutions are beginning to emerge to unlock the development embargos that have been in place in many areas due to the nutrient neutrality issue, areas of Sussex now have a new problem: water.

For over two years now, where the integrity of special areas of conservation or special protection areas (areas of nature conservation importance previously protected at EU level) are already under stress due to nitrate or phosphate pollution (usually due to historic farming practices), Natural England has been advising local planning authorities that an appropriate assessment cannot be reached under regulation 63 of the Conservation of Habitats and Species Regulations 2017 to the effect that further development, causing additional sewage or surface water run-off will not affect the integrity of nearby SACs and SPAs unless measures will are secured to achieve neutrality, either on or off site. Under the 2017 Regulations, unless a development can pass that appropriate assessment test it’s stuffed, no go.

I first wrote about the nitrates issue over two years ago in my 29 June 2019 blog post Another Green World: The South Coast Nitrate Crisis.

Developers on large sites have increasingly looked for suitable onsite measures and some authorities have been able to make available offsite measures to allow development to proceed.

Natural England’s advice on achieving nutrient neutrality for development in the Solent region (5th edition, June 2020) survived a legal challenge from campaigners who argued that it was not stringent enough (see R (Wyatt) v Fareham Borough Council (Jay J, 28 May 2021)) and Turley’s Peter Home and James Cording provided a useful update as to progress in finding solutions to what is otherwise a complete bar to development: Solent nitrogen neutrality: 18 months on, where are we now? (Turley, 11 November 2020).

Natural England’s initial advice in relation to nitrate neutrality was then followed by advice as to the need for phosphate neutrality, for instance in certain areas of Somerset and Cornwall, eg this is Natural England letter dated 15 April 2021 in relation to potential effect of phosphates on the River Camel Special Area of Conservation

Topically, HBF’s director for cities, James Stevens, has written an article Wading through the effluent in the October 2021 edition of Housebuilder magazine as to the problems being caused to housebuilders by needing to achieve nutrient neutrality, even where a technical solution can be found – the average costs being apparently over £5,000 per dwelling.

But those involved with development in Horsham, Crawley and Chichester, which fall within the Sussex North Water Supply Zone, are all now faced with an even more challenging issue: the potential need to demonstrate water neutrality. Natural England has become increasingly concerned as to the impact of groundwater abstraction on the Arun Valley SPA, SAC and Ramsar site. It has recently published its Position Statement for Applications within the Sussex North Water Supply Zone – interim approach (September 2021):

Natural England has advised that this matter should be resolved in partnership through Local Plans across the affected authorities, where policy and assessment can be agreed and secured to ensure water use is offset for all new developments within Sussex North. To achieve this Natural England is working in partnership with all the relevant authorities to secure water neutrality collectively through a water neutrality strategy.

Whilst the strategy is evolving, Natural England advises that decisions on planning applications should await its completion. However, if there are applications which a planning authority deems critical to proceed in the absence of the strategy, then Natural England advises that any application needs to demonstrate water neutrality. We have provided the following agreed interim approach for demonstrating water neutrality:

The relevant authorities are now advising applicants accordingly. Crawley Borough Council’s website for instance now says this:

Developers / planning applicants who can demonstrate water neutrality such as having significant water efficiency measures built into their development and by providing offsetting measures to reduce water consumption from existing development, and who are able to enter into legal obligations to secure these measures, would be able to proceed, subject to the planning process. The onus is on developers and planning applicants to demonstrate that they can deliver water neutrality for their proposals. For applications in these circumstances which are not able to do this, the Local Planning Authority [the council] when determining a decision, would unfortunately have no choice but to refuse them, as a matter of law, in light of the Natural England Statement.

The Local Planning Authority [the council] has written urgently to agents of affected applicants advising them of Natural England’s position and advising them that, for the time being, all applications where a positive decision / recommendation was / is to be made on an application will have to be delayed if they are within the Southern Water supply zone, until the matter of water neutrality can be addressed.”

Without speedy solutions, this is going to create real problems both for individual developers in the area and for authorities in bringing forward deliverable local plans.

No doubt there will be solutions in due course (and questions do have to be asked as to whether the issue really lies with the water abstraction licences, which presumably were the subject of appropriate assessment under the 2017 Regulations and their statutory predecessors, rather than with those who are seeking to have access the abstraction of which has already been licensed!) but how long will that take and at whose cost?

In the meantime, what an unplanned mess.

Simon Ricketts, 9 October 2021

Personal views, et cetera

Talking of Planning Law Unplanned…our clubhouse session will tackle this subject in more detail with practical, authoritative, input from special guests including Peter Home (mentioned above), Tim Goodwin, Charlie Banner QC, Richard Turney and others. Do join us at 6 pm on Tuesday 12 October. Link to app here.

Stonehenge Road Tunnel Consent Quashed

This is a month in which we have seen the Government announce that it would be reviewing its National Networks (i.e. roads and rail) National Policy Statement to take account of net zero carbon commitments and in the meantime fend off a challenge to its current road investment strategy (RIS2): R (Transport Action Network Limited v Secretary of State for Transport (Holgate J, 26 July 2021).

This has also been a month in which we have seen UNESCO remove Liverpool from its world heritage list.

Now at the end of the month, another significant ruling from Holgate J in R (Save Stonehenge World Heritage Site Limited) v Secretary of State (Holgate J, 30 July 2021), concerning both the National Networks NPS and a world heritage site.

The court has quashed the decision of the Secretary of State (“SST”), against his examining authority’s recommendations, to “grant a development consent order (“DCO”) […] for the construction of a new route 13 km long for the A303 between Amesbury and Berwick Down which would replace the existing surface route. The new road would have a dual instead of a single carriageway and would run in a tunnel 3.3 km long through the Stonehenge part of the Stonehenge, Avebury and Associated Sites World Heritage Site (“WHS”)“. I had written about the SST’s decision to grant the DCO in my 14 November 2020 blog post, Minister Knows Best (It is interesting to look back – all three of the DCO decisions I mentioned in that post have now been quashed, the others being Norfolk Vanguard Windfarm (also by Holgate J, in R (Pearce) v Secretary of State for Business, Energy and Industrial Strategy (18 February 2021) and also in February 2021 the quashing by consent order of the Manston Airport DCO).

The SST’s decision to grant the A303 (Amesbury to Berwick Down) Development Consent Order 2020, to give it its formal title, was challenged on five grounds, some of those with sub-grounds. They were, in full:

Ground 1

(i) The SST failed to apply paragraph 5.124 of the NPSNN (see [43] above) to 11 non-designated heritage assets;

(ii) The SST failed to consider the effect of the proposal on 14 scheduled ancient monuments (i.e. designated heritage assets);

(iii) The SST failed to consider the effect of the proposal on the setting of the heritage assets, as opposed to its effect on the OUV of the WHS as a whole;

(iv) The SST’s judgment that the proposal would cause less than substantial harm improperly involved the application of a “blanket discount” to the harm caused to individual heritage assets.

Ground 2– lack of evidence to support disagreement with the Panel

The claimant submits that the SST disagreed with the Panel on the substantial harm issue without there being any proper evidential basis for doing so. Mr. Wolfe QC advances this ground by reference to the SST’s acceptance of the views of IP2 in DL 34, 43, 50 and 80. He submitted that IP2’s representations did not provide the SST with evidence to support his disagreement with the Panel on “substantial harm” in two respects. First, he said that HE only addressed the spatial aspect of the third main issue and did not address harm to individual assets or groups of assets. Second, he submitted that SST had misunderstood IP2’s position: it had never said that the harm would be less than substantial.”

Ground 3 – double-counting of heritage benefits

The claimant submits that the SST not only took into account the heritage benefits of the scheme as part of the overall balancing exercise required by para. 5.134 of the NPSNN, but also took those matters into account as tempering the level of heritage disbenefit. It is said that this was impermissible double-counting because those heritage benefits were placed in both scales of the same balance.”

Ground 4 – whether the proposal breached the World Heritage Convention

“The claimant contends that the SST’s acceptance that the scheme would cause harm, that is less than substantial harm, to the WHS involved a breach of articles 4 and 5 of the Convention and therefore the SST erred in law in concluding that s.104(4) of PA 2008 was not engaged. It was engaged and so, it is submitted, the presumption in s.104(3) should not have been applied in the decision letter.”

Ground 5

(i) The SST failed to take into account any conflict with Core Policies 58 and 59 of the Wiltshire Plan and with policy 1d of the WHS Management Plan;

(ii) The SST failed to take into account the effect of his conclusion that the proposal would cause less than substantial harm to heritage assets on the business case advanced for the scheme;

(iii) The SST failed to consider alternative schemes in accordance with the World Heritage Convention and common law.

The 39 Essex chambers press statement (this being a case well represented by barristers from that chambers: five of the seven appearing!) summarises the outcome as follows:

The claim was allowed on two grounds:

· Part of ground 1(iv): that the Minister did not receive a precis of, or any briefing on, heritage impacts where the Examining Authority agreed with Highways England but did not summarise in their report. He therefore could not form any conclusion upon those heritage assets, whether in agreement or disagreement;

· Ground 5(iii): The Examining Authority and the Minister limited their concluded consideration of alternatives to whether an options appraisal had been carried out and whether there was information on alternatives. However, they did not go on to consider the relative merits of the scheme and alternatives, in particular extending the proposed tunnel farther westwards. Mr Justice Holgate considered it was irrational not to have drawn conclusions in relation alternatives, particularly given that third parties had raised them and the Examining Authority had addressed the information about them in its Report. The Judge held that the circumstances were wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the Minister was required to assess and draw conclusions upon.

The Court rejected other grounds of challenge holding:

· There was no failure to consider whether certain archaeological sites were of national importance;

· The effects on certain individual scheduled monuments had been considered;

· The examining authority and the Minister had considered the effect on scheduled monuments and other heritage assets in addition to the World Heritage Site;

· The Minister had correctly understood Historic England’s advice;

· Discussing the recent Court of Appeal judgment in Bramshill the judge considered that in some cases a decision maker could consider the harm and benefits to a particular heritage asset before deciding whether there was net harm to it and that harm could be assessed for different purposes in different parts of guidance. In Stonehenge the court held that there had been no improper double counting or consideration;

· Articles 4 and 5 of the World Heritage Convention confers obligations on member states towards World Heritage Sites. The Court considered that the Convention does not impose an absolute requirement of protection, but that a balance can be drawn against harm and public benefits.

· The Minister had also lawfully considered the development plan, the World Heritage Site Management Plan and the business case.”

For those who may misunderstand the supervisory role of the courts, there was this warning from Holgate J:

“Plainly, this is a scheme about which strongly divergent opinions are held. It is therefore necessary to refer to what was said by the Divisional Court in R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2021] PTSR 553 at [6]:- “It is important to emphasise at the outset what this case is and is not about. Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the relevant procedures and legal principles governing the exercise of their decision-making functions. The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. The choices may be matters of legitimate public debate, but they are not matters for the court to determine. The Court is only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully.”

The present judgment can only decide whether the decision to grant the DCO was lawful or unlawful. It would therefore be wrong for the outcome of this judgment to be treated as either approving or disapproving the project. That is not the court’s function.

I thought it might be interesting to pick out some of the passages where Holgate J sets out his reasoning for finding the decision to have been unlawful:

Ground 1(iv)

“Here, the SST did receive a precis of the ES [environmental statement] and HIA [heritage impact assessment] in so far as the Panel addressed those documents in its report. But the SST did not receive a precis of, or any briefing on, the parts of those documents relating to impacts on heritage assets which the Panel accepted but did not summarise in its reports. This gap is not filled by relying upon the views of IP2 in the Examination because, understandably, they did not see it as being necessary for them to provide a precis of the work on heritage impacts in the ES and in the HIA. Mr Wolfe QC is therefore right to say that the SST did not take into account the appraisal in the ES and HIA of those additional assets, and therefore did not form any conclusion upon the impacts upon their significance, whether in agreement or disagreement.

In my judgment this involved a material error of law. The precise number of assets involved has not been given, but it is undoubtedly large. Mr Wolfe QC pointed to some significant matters. To take one example, IP1 assessed some of the impacts on assets and asset groupings not mentioned by the Panel as slight adverse and others as neutral or beneficial. We have no evidence as to what officials thought about those assessments. More pertinently, the decision letter drafted by officials (which was not materially different from the final document – see [67] above) was completely silent about those assessments. The draft decision letter did not say that they had been considered and were accepted, or otherwise. The court was not shown anything in the decision letter, or the briefing, which could be said to summarise such matters. In these circumstances, the SST was not given legally sufficient material to be able lawfully to carry out the “heritage” balancing exercise required by paragraph 5.134 of the NPSNN and the overall balancing exercise required by s.104 of the PA 2008. In those balancing exercises the SST was obliged to take into account the impacts on the significance of all designated heritage assets affected so that they were weighed, without, of course, having to give reasons which went through all of them one by one.”

Ground 5 (iii)

“The focus of the claimant’s oral submissions was that the defendant failed to consider the relative merits of two alternative schemes for addressing the harm resulting from the western cutting and portal, firstly, to cover approximately 800m of the cutting and secondly, to extend the bored tunnel so that the two portals are located outside the western boundary of the WHS.”

“The relevant circumstances of the present case are wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the SST was required to assess. It was irrational not to do so. This was not merely a relevant consideration which the SST could choose whether or not to take into account. I reach this conclusion for a number of reasons, the cumulative effect of which I judge to be overwhelming. “

Holgate J goes on to set out in detail nine reasons on which he relies (see paragraphs 278 to 288 of the judgment).

The Secretary of State has an uneasy summer ahead: whether or not he seeks permission to appeal, is this a scheme he is still wedded to, cheek by jowl with his transport decarbonisation plan and promised review of the National Networks NPS? Awkwardly, the prime minister had only recently referred to the project in his 15 July 2021 levelling up speech as “critical and overdue”.

Can you make a u-turn on a trunk road?

Simon Ricketts, 30 July 2021

Personal views, et cetera

We will be discussing the case on clubhouse on 10 August (link here), our regular Planning Law, Unplanned panellist Victoria Hutton having appeared for the successful claimant. However, this coming Tuesday, 3 August 2021, our topic will be ££ affordable workspace in section 106 agreements: Why? how? ££ led by my Town Legal colleague Lucy Morton and leading economist Ellie Evans (Volterra) plus other special guests. Join us! Link here.

Photograph courtesy of Highways England

M’lud On The Tracks: HS2

Great Bob Dylan album, almost.

This post collects together in one place some of the recent planning, environmental and compulsory purchase litigation in relation to the High Speed Two rail project.

R (Keir) v Natural England (16 April 2021, Lang J; further hearing before Holgate J, 23 April 2021, judgment reserved)

This is the interim injunction granted by Lang J preventing HS2 and its contractors from varying out works at Jones’ Hill Wood, Buckinghamshire, until either the disposal of the claim or a further order.

The claim itself has Natural England as the defendant and seeks to challenge its grant of a licence under the Conservation of Habitats Regulations 2017 in relation to works that may disturb a protected species of bat.

The question as to whether the injunction should be maintained came back to court yesterday, 23 April, before Holgate J, as well as whether permission should be granted in the claim itself, and he has reserved judgment until 2pm on 26 April.

Secretary of State for Transport v Curzon Park Limited (Court of Appeal hearing, 21 and 22 April 2021, judgment reserved)

This was an appeal by the Secretary of State for Transport against a ruling by the Upper Tribunal on 23 January 2020. My Town Legal colleagues Raj Gupta and Paul Arnett have been acting for the first respondent, landowner Curzon Park Limited, instructing James Pereira QC and Caroline Daly. Thank you Paul for this summary:

The case concerns certificates of appropriate alternative development (‘CAADs’) under the Land Compensation Act 1961. A CAAD is a means of applying to the local planning authority to seek a determination as to what the land could have been used for if the CPO scheme did not exist. Its purpose it to identify every description of development for which planning permission could reasonably have been expected to be granted on the valuation date if the land had not been compulsorily purchased. Importantly, subject to a right of appeal, the grant of a CAAD conclusively establishes that the development is what is known as ‘appropriate alternative development’. This is significant as:

• When compensation is assessed it must be assumed that planning permission for that development(s) in the CAAD either was in force at the valuation date or would with certainty be in force at some future date and

• Following reforms in the Localism Act 2001, where there is, at the valuation date, a reasonable expectation of a particular planning permission being granted (disregarding the CPO scheme and CPO) contained in a CAAD it is assumed that the planning permission is in force which converts the reasonable expectation into a certainty.

There are four adjoining sites, each compulsorily acquired by HS2 for the purposes of constructing the Curzon Street HS2 station terminus at Cuzon Street Birmingham – four different landowners and four different valuation dates (i.e. vesting dates under the GVD process). Each landowner applied for a CAAD for mixed use development including purpose-build student accommodation (PBSA). In the real world, the cumulative effects of the proposed adjoining developments (e.g. including but not limited to the proposed quantum and need for PBSA in light of a PBSA need in the local plan) would have been a material planning consideration. However, Birmingham City Council considered each CAAD application in isolation. The Secretary of State argued that they should have considered the other CAAD applications as notional planning applications and, therefore, as material considerations which would have been very likely to result in CAADs issued for smaller scale mixed-used development being issued leading to a lower total compensation award and bill for HS2. The preliminary legal issue to be determined by the Upper Tribunal and now the Court of Appeal is:

Whether, and if so how, in determining an application for a certificate of appropriate alternative development under section 17 LCA 1961 (CAAD) the decision-maker in determining the development for which planning permission could reasonably have been expected to be granted for the purposes of section 14 LCA 1961 may take into account the development of other land where such development is proposed as appropriate alternative development in other CAAD applications made or determined arising from the compulsory acquisition of land for the same underlying scheme’.

The Upper Tribunal had rejected the landowners’ argument that the scheme cancellation assumption (i.e. disregarding the CPO scheme) under the Land Compensation Act 1961 required CAAD applications on other sites to be disregarded. However, critically, the Tribunal agreed with the landowners’ that CAAD applications were not a material planning consideration and that there was no statutory basis for treating them as notional planning applications as the Secretary of State has argued. The Tribunal also disagreed with the Secretary of State that the landowners’ interpretation of the statutory scheme would lead to excessive compensation pointing out that the landowners’ ability to develop their own land in their own interests was taken away when their land was safeguarded for HS2 and from November 2013 when the HS2 scheme was launched until 2018 when the land interests were finally acquired by HS2 any planning permissions for these sites would have been determined in the shadow of the HS2 scheme and safeguarding of the land. The Secretary of State appealed the Upper Tribunal decision and the Court of Appeal granted permission to appeal in July 2020 noting that the appeal raises an important point on the principle of equivalence (i.e. the principle underpinning the CPO Compensation Code) that a landowner should be no worse off but no better off in financial terms after the acquisition than they were before) which may have widespread consequences for the cost of major infrastructure projects.

A judgment from the Court of Appeal (Lewison LJ, Lindblom LJ and Moylan LJ) is expected in the next month or so.

Sarah Green v Information Officer & High Speed Two Limited (First Tier Tribunal, 19 April 2021)

This was an appeal against the refusal by HS2 Limited to disclose, pursuant to the Environmental Information Regulations 2004, information as to the potential effect of its works on chalk aquifers in the Colne Valley. The information requested was as follows:

What risk assessments have taken place, of the potential increased risk to controlled waters as a result of imminent works by HS2 contractors along the Newyears Green bourne and surrounding wetland?

Are any of the risk assessments independent from the developers (HS2) and where are the risk assessment (sic) accessible to the public?

By the time of the hearing before the First Tier Tribunal, three reports had been disclosed, redacted. The Tribunal summarised the issues before it as follows:

“(1) whether HS2 correctly identified the three reports as being the environmental information which Ms Green requested and whether there was further material held which came within the request;

(2) whether at the time of Ms Green’s request the three reports were “still in the course of completion” or comprised “unfinished documents” and, if so, whether the public interest in maintaining the regulation 12(4)(d) exception outweighed that in disclosure;

(3) whether disclosure of those parts of the three reports which have been redacted in reliance on regulation 12(5)(a) would have adversely affected “public safety” and, if so, whether the public interest in maintaining the regulation 12(5)(a) exception outweighed the public interest in their disclosure.”

The Tribunal found, expressing its reasoning in strong terms, that the public interest in disclosure outweighed the public interest in maintaining any exemption.

“The reports in question in this case concern a major infrastructure project which gives rise to substantial and legitimate environmental concerns. They specifically relate to the risks of contamination to the drinking water supplied to up to 3.2 million people resulting from the construction of the HS2 line. This is clearly environmental information of a fundamental nature of great public interest.”

HS2 appeared to be concerned that “if the versions of the reports current in January 2019 were made public they “… could have been used to try and impact work undertaken in finalising the information”.

“It seems to us that such an approach almost entirely negates the possibility of the public having any input on the decision-making process in this kind of case, which goes against a large part of the reason for allowing public access to environmental information.

The suggestion that public officials concerned in making enquiries and freely discussing options to mitigate environmental problems might be discouraged or undermined by early disclosure of their work seems to us rather fanciful and was not supported by any kind of evidence; the case is not comparable in our view to that of senior officials indulging in “blue sky” thinking about policy options. We accept that the material is “highly technical” but we cannot see why a lack of understanding on the part of the public would have any negative impact on HS2’s work; if a member of the public or a pressure group wanted to contribute to the debate in a way that was likely to have any effect on the decision-making process they would no doubt have to engage the services of someone like Dr Talbot, who would be able to enter the debate in a well- informed and helpful way.”

“HS2’s second main point, that the Environment Agency will be approving and supervising everything, does not seem to us of great weight. Of course the Environment Agency is there to act in the public interest in relation to the environment but its involvement cannot be any kind of answer to the need for public knowledge of and involvement in environmental decisions. The EA is itself fallible and should be open to scrutiny. If the public could simply entrust everything to it there would be no need for the EIR.

HS2’s third main point is that if inchoate information is released it could be misleading and they would incur unnecessary expense correcting false impressions. We were not presented with any specific evidence or examples to illustrate how this problem might have been encountered in practice. It does not seem to us a very compelling point.”

R (Maxey) v High Speed 2 Limited (Steyn J, 10 February 2021)

This was an interim ruling in an application for judicial review, made only nine days previously, of the decision by HS2 Limited to extract the protesters that were occupying the tunnel under Euston Square Gardens and alleging a failure to safely manage Euston Square Gardens in a manner compatible with HS2 Limited’s obligations under the European Convention of Human Rights. It followed a rejection of an application by Mr Maxey for an interim injunction and followed an order made requiring him to cease any further tunnelling activity, to provide certain categories of information to HS2 Limited or others and to leave the tunnel safely, with which he had not complied.

At the hearing, Mr Maxey was renewing his “application for orders requiring (a) the cessation of operations to extract the protesters from the tunnel and (b) to implement an exclusion zone. In addition, the Claimant has expanded the interest relief he seeks to include provision forthwith by the Defendant of (a) oxygen monitoring equipment; (b) a hard-wired communication method; (c) food and drinking water for the Claimant and the protesters; and (d) to make arrangements for the removal of human waste from the tunnel.” He was also seeking to overturn the orders against him.

The judge rejected Mr Maxey’s arguments:

While I accept that the Defendant is (or at the very least there is a good argument that the Defendant is) currently under a duty to take all reasonable steps to protect those in the tunnel under the site (including the Claimant) from death or serious injury, on the evidence before me there is no realistic prospect of the Court finding that the Defendant is breaching its duty. In my judgment, the claim for interim relief does not meet the first test.

That suffices to dispose of the interim relief application. But if it were necessary to consider the balance of convenience, I would have to bear in mind the strong public interest in permitting a public authority’s decision (here a decision to proceed with the operation and a decision as to the necessary safeguards) to remain in force pending a final hearing of the application for judicial review, so the party applying for interim relief must make out a strong case for the grant of interim relief. The Claimant has not come close to establishing a strong enough case to justify the Court stopping the operations to remove those who are in the tunnel, given the compelling evidence as to how dangerous it is for them to remain there.”

R (Packham) v Secretary of State for Transport (Court of Appeal, 31 July 2020)

I summarised this case in my 9 January 2021 blog post Judges & Climate Change. It was Chris Packham’s failed challenge to the Government’s decision to continue with the HS2 project following the review carried out by Douglas Oakervee, the grounds considered by the Court of Appeal being “whether the Government erred in law by misunderstanding or ignoring local environmental concerns and failing to examine the environmental effects of HS2 as it ought to have done” and “whether the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050, in the light of the Government’s obligations under the Paris Agreement and the Climate Change Act 2008”.

R (London Borough of Hillingdon) v Secretary of State for Transport (Court of Appeal, 31 July 2020)

This case was heard consecutively with the Packham appeal. It related to Hillingdon’s challenge to the Secretary of State’s decision to allow (against his inspector’s recommendations) an appeal against Hillingdon’s refusal to grant HS2 Limited’s application for approval, under the Act authorising the relevant stage of the HS2 project, of plans and specifications for proposed works associated with the creation of the Colne Valley Viaduct South Embankment wetland habitat ecological mitigation. HS2 Limited had refused to provide Hillingdon with information so that an assessment could be made as to the effect of the proposed works on archaeological remains, HS2 Limited’s position being that it was “under no obligation to furnish such information and evidence. It says that this is because it will, in due course, conduct relevant investigations itself into the potential impact of the development upon any archaeological remains and take all necessary mitigation and modification steps. HS2 Ltd says that it will do this under a guidance document which forms part of its contract with the Secretary of State for Transport which sets out its obligations as the nominated undertaker for the HS2 Project.”

Lang J had upheld the Secretary of State’s decision but this was overturned by the Court of Appeal:

“The key to this case lies in a careful reading of Schedule 17 and the powers and obligations it imposes upon local authorities and upon HS2 Ltd. In our judgment, the duty to perform an assessment of impact, and possible mitigation and modification measures under Schedule 17, has been imposed by Parliament squarely and exclusively upon the local authority. It cannot be circumvented by the contractor taking it upon itself to conduct some non-statutory investigation into impact. We also conclude that the authority is under no duty to process a request for approval from HS2 Ltd unless it is accompanied by evidence and information adequate and sufficient to enable the authority to perform its statutory duty.”

[Subsequent note: Please also see London Borough of Hillingdon v Secretary of State for Transport (Ouseley J, 13 April 2021), “Hillingdon 2” where on the facts Ouseley J reached a different conclusion, holding that an inspector had not acted unlawfully in determining an appeal without information sought by the council from HS2 Limited as to the lorry routes to be used by construction lorries to and from the HS2 construction sites within its area].

R (Granger-Taylor) v High Speed Two Limited (Jay J, 5 June 2020)

This was a judicial review claim brought by the owner of a listed Georgian building near Regents Park. The property was separated by a large retaining wall, built in 1901, from the perimeter of the existing railway. “It rests approximately 17 metres from the front of the property and the drop from the level of the road to the railway below is approximately 10 metres. Unsurprisingly, given that the substrate is London clay, the wall has suffered periodic movement and shows signs of cracking. The Claimant’s expert says that it is “metastable”.”

The claimant was concerned as to the engineering solution arrived at for that section of the route, which was known as the Three Tunnels design. “This judicial review challenge is directed to the safety of the Three Tunnels design in the specific context of the outbound tunnel travelling so close to the base of the retaining wall. It is contended on the back of expert engineering evidence that this aspect of the design has engendered an engineering challenge which is insurmountable: in the result, the design is inherently dangerous. The risk is of catastrophic collapse of the retaining wall, either during the tunnelling works or subsequently, which would if it arose cause at the very least serious damage to the Claimant’s property. Consequently, the Claimant asserts a breach of section 6 of the Human Rights Act 1998 because her rights under Article 8 and A1P1 of the Convention have been violated.”

The judge boiled the questions down to the following:

has the Claimant demonstrated that she is directly and seriously affected by the implementation of the Three Tunnels design, given the risk of catastrophic collapse identified by Mr Elliff? In my view, that question sub-divides into the following:

(1) should I conclude on all the evidence that the Three Tunnels design is so inherently flawed in the vicinity of the retaining wall that no engineering solution could be found to construct it safely? and

(2) have the Defendants already committed themselves to implement the Three Tunnels design regardless of any further work to be undertaken under Stage 2?

After detailed consideration of expert engineering expert on both sides, the judge rejected the claim.

Anixter Limited v Secretary of State for Transport (Court of Appeal, 30 January 2020)

This was a compulsory purchase case, about whether an owner of four units on the Saltley Business Park in Birmingham, faced with compulsory purchase of one of them, had served counter-notices in time such as to trigger its potential ability to require acquisition of its interests in all four buildings. The court ruled that it had not.

It certainly seems an age since R (HS2 Action Alliance) v Secretary of State for Transport (Supreme Court, 22 January 2014) where in a previous law firm life I acted for the claimant, instructing David Elvin QC and Charlie Banner (now QC). The case concerned whether the publication by the Government of its command paper, “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” engaged strategic environmental assessment requirements and whether the hybrid bill procedure would comply with the requirements of the Environmental Impact Assessment Directive (for more on the HS2 hybrid bill procedure, see my 30 July 2016 blog post HS2: The Very Select Committeehttps://simonicity.com/2016/07/30/hs2-the-very-select-committee/). The loss still grates. And in consequence of that ruling…

There’s a slow, slow train comin’.

Simon Ricketts, 24 April 2021

Personal views, et cetera

Thank you to my Town Legal colleague Lida Nguyen for collating a number of these cases.

Our clubhouse Planning Law, Unplanned session at 6pm on 27 April will follow a similar theme, so if you are interested in issues relating to HS2 or in wider questions as to judicial review, interim injunctions, access to information or compulsory purchase compensation, do join us, whether to contribute to the discussion or just listen in. As always, contact me if you would like an invitation to the clubhouse app (which is still iphone only I’m afraid).

Detail from Bob Dylan’s painting Train Tracks

Judges & Climate Change

Over Christmas, I finally read Joshua Rozenberg’s 2020 book Enemies of the People? How Judges Shape Society.

The book examines the tension inevitably faced by judges in interpreting the law, particularly in areas of public controversy (constitutional issues; “right to death”; family; discrimination; religion; privacy; access to justice): when should the application of common law principles (i.e. rules developed over time by the courts through the doctrine of precedent, as to matters not resolved by legislation) and changing expectations in society as to minimum rights that we should enjoy (a question legitimised to some extent, and in relation to some issues, by principles of statutory interpretation required under the Human Rights Act) lead judges to “make” law? And can Parliament prevent the Judiciary from constraining the Executive’s actions and decision making on particular issues, by way of ouster provisions in legislation?

Rozenberg:

“Ultimately, the British constitution relies on a delicate balance between the executive, the legislature and the judiciary: all three powers of the state must demonstrate good judgment if we are to be governed under the rule of law”.

The book is also essential background to the current Faulks review of administrative law (see my 12 September 2020 blog post).

The squeals come from those on the wrong side of rulings (of course with litigation that goes with the territory) or who choose to see the issues in too simplistic terms.

Enemies of the people” was of course the infamous Daily Mail headline following the Supreme Court’s judgment in Miller (no 1). To my mind the press release by campaign group Plan B following R (Friends of the Earth Limited) v Heathrow Airport Limited (Supreme Court, 16 December 2020) was at least as bad:

“**Latest news – the Supreme Court betrays us all with its treasonous reversal of the Court of Appeal’s judgement.**

The next edition of Rozenberg’s book surely needs to include a chapter on environmental and climate change issues. The Supreme Court was not “treasonous”! It is appalling and Trumpian to suggest it.

Heathrow

I do not consider that the Supreme Court’s reversal of the Court of Appeal’s ruling – holding that at the time the Secretary of State for Transport designated the Airports National Policy Statement in June 2018 the emissions reductions targets in the Paris Agreement had not formed part of government policy on climate change – was at all unexpected. Its conclusion was based on a plain, detailed, analysis of the position as at that date. My 7 March 2020 blog post on the Court of Appeal ruling can now be consigned to the scrap heap but I did, perhaps too politely, describe the ruling as “surprising” and say that it was “not obvious to me that the Court of Appeal’s conclusions would be safe against an appeal to the Supreme Court”! The Supreme Court sided with the initial findings of Holgate J and Hickinbottom LJ, sitting as a Divisional Court, at first instance.

Planning Court liaison judge Holgate J has a central role in this developing area of case law, revolving around the application of emissions reduction targets in the Climate Change Act 2008 – both sitting alone and as part of a Divisional Court (Whilst usually High Court cases are presided over by a single judge, in particularly important or complex cases the High Court can choose to sit as a Divisional Court, with a High Court judge and a Court of Appeal judge sitting together).

HS2

Earlier in the year, Court of Appeal, in R (Packham) v Secretary of State (Court of Appeal, 31 July 2020) , upheld the first instance rejection by Holgate J and Coulson LJ (also sitting as a Divisional Court) of Chris Packham’s challenge to the Government’s decision to continue with the HS2 project following the review carried out by Douglas Oakervee.

The Court of Appeal:

“ground 3b is whether the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050, in the light of the Government’s obligations under the Paris Agreement and the Climate Change Act 2008.”

“In our view it is impossible to infer from the report any failure by the panel to have regard to the Government’s relevant statutory and policy commitments on climate change. And the Government did not demonstrably commit any such error in making its decision. On this point too, we agree with the Divisional Court. There is nothing to show that the Government either ignored or misunderstood the legal implications of proceeding with HS2 for its obligations relating to climate change, including those arising from the Paris Agreement and under the provisions of the Climate Change Act.”

“… the Oakervee review was not an exercise compelled, or even provided for, in any legislation relating to climate change, in any legislation relating to major infrastructure, or in any legislation at all. It finds no place in the arrangements set in place by the Climate Change Act. Nor does it belong to any other statutory scheme, such as the Planning Act, in which the consequences of major infrastructure development for climate change are explicitly provided for as a necessary feature of decision-making. The same goes for the Government’s own decision on the future of HS2.”

Drax

Following a hearing in November 2020, judgment is yet to be handed down by the Court of Appeal in ClientEarth v Secretary of State, where at first instance Holgate J rejected a challenge to the Drax power station DCO.

Horse Hill

Holgate J handed down judgment last month in another climate change case, R (Finch) v Surrey County Council (Holgate J, 21 December 2020).

This was a challenge to a planning permission granted by Surrey County Council to retain two oil wells at Horse Hill, Hookwood, Horley, Surrey and to drill four new wells, for the production of hydrocarbons over a period of 25 years.

The main issue was “whether a developer’s obligation under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 571) (“the 2017 Regulations”) to provide an environmental statement (“ES”) describing the likely significant effects of a development, both direct and indirect, requires an assessment of the greenhouse gas (“GHG”) emissions resulting from the use of an end product said to have originated from that development.” Should the environmental statement in relation to the project have assessed the greenhouse gases “that would be emitted when the crude oil produced from the site is used by consumers, typically as a fuel for motor vehicles, after having been refined elsewhere.” Was that an indirect effect of the development?

Holgate J:

The UK Government’s fundamental objective in relation to climate change is enshrined in s.1(1) of the Climate Change Act 2008 (“CCA 2008”) which, as amended with effect from 27 June 2019, imposes a duty on the Secretary of State to ensure that the net UK carbon account for 2050 is at least 100% lower than the 1990 baseline. This is generally referred to as “the net zero target“.

It goes without saying that the extraction of crude oil resulting in the supply of fuel will result in GHG emissions when that end product is used. It is common ground that that is addressed by Government policy on climate change and energy, aimed inter alia at reducing the use of hydrocarbons. The issue raised in the present challenge is whether, by virtue of the 2017 Regulations, it was necessary for the planning authority to go further than apply those policies in its decision on whether to grant planning permission for the development, by requiring those GHG emissions to be estimated and assessed as part of the Environmental Impact Assessment (“EIA”) of the development.”

“In my judgment, the fact that the environmental effects of consuming an end product will flow “inevitably” from the use of a raw material in making that product does not provide a legal test for deciding whether they can properly be treated as effects “of the development” on the site where the raw material will be produced for the purposes of exercising planning or land use control over that development. The extraction of a mineral from a site may have environmental consequences remote from that development but which are nevertheless inevitable. Instead, the true legal test is whether an effect on the environment is an effect of the development for which planning permission is sought. An inevitable consequence may occur after a raw material extracted on the relevant site has passed through one or more developments elsewhere which are not the subject of the application for planning permission and which do not form part of the same “project”.

The inevitability that the crude oil to be transported off site will eventually lead to additional GHG emissions when the end product is consumed is simply a response to the defendant’s point that when the oil leaves the site it becomes an indistinguishable part of the international oil market, so that the GHG emissions generated by combustion in vehicles cannot be attributed to any particular oil well or well site. Like the debate between the witness statements as to whether the oil produced on the site would only displace oil production elsewhere or would instead increase overall net consumption, these are forensic arguments about the market consequences of extracting oil at the site which do not address the real legal issues raised by ground 1(a).”

“Although it is not essential to my conclusions on this challenge, I should record in passing that I do not accept the proposition that there are no other measures in place within the UK for assessing and reducing GHG emissions from the combustion of oil products in motor vehicles. The measures include the net zero target in the CCA 2008, and the various matters referred to in [46] to [54] above. The overall responsibility for the economy-wide transition to a low carbon society is the responsibility of the UK Government (Packham at [87]). A range of measures is being pursued to achieve a reduction in the consumption of oil products including road pricing, taxation and future controls on the source of energy which may be used by vehicles. The object of these measures is to reduce substantially the demand for diesel and petrol from UK consumers.

The claimant fairly says that these measures do not affect the consumption of oil products by consumers in other countries. But, on the other hand, the Paris Agreement was signed by many countries throughout the world and it is the responsibility of each such country to determine its contribution to achieving the global target for 2050. Whether these issues are thought to be adequately addressed in other countries, or even in the UK, can provide no guide to the interpretation of our domestic legislation on EIA for the consenting of new development.”

“Essentially, development control and the EIA process are concerned with the use of land for development and the effects of that use. They are not directed at the environmental effects which result from the consumption, or use, of an end product, be it a manufactured article or a commodity such as oil, gas or electricity used as an energy source for conducting other human activities.”

A decision the other way clearly could have had very wide implications – a good example of the boundary between making law and interpreting it.

Campaign groups have of course long used litigation as a means of applying political pressure for change. That is a particular feature of the climate change area, with existing campaign groups such as Friends of the Earth, Greenpeace and ClientEarth, now joined by the likes of Plan B, the Good Law Project and Rights : Community : Action.

NPSs

The Good Law Project had brought legal proceedings seeking to require the Government to review its energy national policy statements to reflect current climate change targets. Whether or not as a result of those proceedings, the Government has now confirmed that it will do exactly that in its Energy white paper, Powering our net zero future (14 December 2020)

“We will complete a review of the existing energy National Policy Statements (NPS), with the aim of designating updated NPS by the end of 2021.

The suite of energy NPS establish the need for new energy infrastructure and set out a framework for the consideration of applications for development consent. We have decided that it is appropriate to review the NPS, to ensure that they reflect the policies set out in this white paper and that we continue to have a planning policy framework which can deliver the investment required to build the infrastructure needed for the transition to net zero. Work on this review will start immediately, with the aim of designating updated NPS by the end of 2021.

This white paper shows that the need for the energy infrastructure set out in energy NPS remains, except in the case of coal-fired generation. While the review is undertaken, the current suite of NPS remain relevant government policy and have effect for the purposes of the Planning Act 2008. They will, therefore, continue to provide a proper basis on which the Planning Inspectorate can examine, and the Secretary of State can make decisions on, applications for development consent. Nothing in this white paper should be construed as setting a limit on the number of development consent orders which may be granted for any type of generating infrastructure set out in the energy NPS. Other restrictions outside the planning regime (in particular the Emissions Performance Standard) mean that no new coal infrastructure projects can come forward.

Following the Supreme Court’s ruling in the Heathrow case, the Good Law Project’s focus immediately turned to the Airports National Policy Statement. On 18 December 2020 a pre-action protocol letter was sent to the Secretary of State for Transport, requesting that he:

“(i) considers whether it is appropriate to review the Airports National Policy Statement on new runway capacity and infrastructure at airports in the South East of England (NPS) pursuant to section 6 of the Planning Act 2008 (PA 2008); and

(ii) considers whether it is appropriate to suspend all or part of the ANPS pursuant to section 11 of the PA 2008”

in the light, amongst other things, of “significant changes in the science and domestic policy on Climate Change” since the designation of the policy statement in June 2018. A response was requested by 18 January 2021.

In the wake of the Heathrow judgment, Plan B was reported as considering bringing a claim in the European Court of Human Rights. That would in my view be an uphill struggle, particularly at this policy setting rather than development consent stage, although of course it is interesting to see how climate change human rights law has been developing – see for example the Dutch Supreme Court judgment in the Urgenda case (the background is set out in my 28 September 2019 blog post Urgent Agenda/Urgenda written after the Dutch Court of Appeal’s ruling in that case, upheld by the Dutch Supreme Court). Based on articles 2 and 8 of the European Convention on Human Rights, the court ordered that the state was to reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990.

The Bingham road-map

I’ll end by quoting again from Rozenberg’s book, where he sets out Lord Bingham’s “road-map” of warning signs which should be heeded by judges who are considering making new law:

1. where reasonable and right-minded citizens have legitimately ordered their affairs on the basis of a certain understanding of the law;

2. where, although a rule of law is seen to be defective, its amendment calls for a detailed legislative code, with qualifications, exceptions and safeguards which cannot feasibly be introduced by judicial decisions;

3. where the question involves an issue of current social policy on which there is no consensus within the community;

4. where an issue is the subject of current legislative activity;

5. where the issue arises in a field far removed from ordinary judicial experience.

Discuss!

Simon Ricketts, 9 January 2021

Personal views, et cetera

Minister Knows Best

Why at the moment do ministers conclude so often that they have to reject their inspectors’ recommendations in relation to planning proposals and major infrastructure projects?

Something is clearly wrong when there can be a hugely expensive, time consuming inquiry or examination, followed by a lengthy, considered and reasoned report, only for the decision letter to arrive at a different balance. Is it the fault of inspectors? Has Government not communicated its up to date policy priorities? Are these decisions driven by political convenience? The problem is that we don’t get to find out – the minister’s decision is inevitably as bland as bland, with differences cloaked by “legal cover” explanations as to the different weight applied to particular considerations. Is it any wonder that the losing party so frequently then embarks on a legal challenge?

Anglia Square, Norwich

Yesterday (13 November 2020), Robert Jenrick issued his decision letter refusing, against his inspector’s recommendations, a called in application for planning permission in relation to the proposed development at Anglia Square, Norwich of “up to 1250 dwellings, hotel, ground floor retail and commercial floorspace, cinema, multi-storey car parks, place of worship and associated works to the highway and public realm areas”. The proposal included a 20 storey tower. Inspector David Prentis had held an inquiry over 15 days in January and February 202, providing his 206 page report to the Secretary of State on 6 June 2020. Russell Harris QC appeared for the applicant (Weston Homes and others), Tim Corner QC appeared for Norwich City Council and Historic England (represented by Guy Williams), Save Britain’s Heritage (represented by Matthew Dale-Harris), the Norwich Society and the Norwich Cycling Campaign were all rule 6 parties.

Photo from Save Britain’s Heritage website (credit: Dan Glimmer)

Why was the inspector’s recommendation not accepted?

“The Secretary of State has carefully considered the Inspector’s assessment at IR468- 469 of the building typologies proposed, and their height. While he recognises that there has been an effort to place the taller buildings within the site rather than on the edges, the Secretary of State considers that the bulk and massing of the built form proposed is not sympathetic to its context. In particular, he is concerned that the frontage to St Crispins Road would include 8, 10 and 12 storey buildings, and he finds, like the Inspector at IR607, that Block F, which would have frontages to Pitt Street and St Crispins Road, would appear strikingly different and unfamiliar, to an extent that would cause harm. The Secretary of State also concurs with the advice of Design South East as quoted in the evidence of Historic England (IR269 and IR474) that:

“with blocks of over 10 storeys, it is only in comparison with the tower that these could be considered low rise, and in the context of the wider city they are very prominent. These blocks are not just tall, but also very deep and wide, creating monoliths that are out of scale with the fine grain of the surrounding historic urban fabric”

He “finds that the tower would be of an excessive size in relation to its context, and does not demonstrate the exceptional quality required by Policy DM3(a).

The Secretary of State “disagrees with the Inspector on the scale of the heritage benefits of the proposal set out in IR542, specifically the second bullet given his concerns over the design of the proposal. Taking account of the wider heritage impacts of the scheme as set out in paragraphs 27 to 59 of this letter, the Secretary of State disagrees with the Inspector and finds that, while the benefits of the scheme are sufficient to outweigh the less than substantial harm to the listed buildings identified at IR536-540, when considered individually, they do not do so when considered collectively, given the range and number of heritage assets affected, and given the increased harm found in comparison to the Inspector. He therefore finds, like the Inspector, that the proposals would conflict with policy DM9. He has also found conflict with elements of policies JCS1 which states that heritage assets, and the wider historic environment will be conserved and enhanced through the protection of their settings, and conflict with elements of policy DM1 which states that development proposals will be expected to protect and enhance the physical, environmental and heritage assets of the city.

“Overall the Secretary of State concludes that the benefits of the scheme are not sufficient to outbalance the identified ‘less than substantial’ harm to the significance of the designated heritage assets identified at IR536-537 and in paragraphs 27-59 above. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.”

Bob Weston of Weston Homes has indicated that the decision will be challenged (Norwich Anglia Square: Robert Jenrick ‘sided with Nimby brigade’, BBC website, 12 November 2020).

A303 Stonehenge DCO

Yesterday (12 November 2020) Grant Shapps overturned the examining authority’s recommendation and confirmed the A3030 Stonehenge DCO. The examining authority comprised no fewer than five inspectors (Wendy McKay, Alan Novitzky, David Richards, Ken Taylor and Edwin Maund).

Why was their recommendation rejected?

“ It is the ExA’s opinion that when assessed in accordance with NPSNN, the Development’s effects on the OUV of the WHS, and the significance of heritage assets through development within their settings taken as a whole would lead to substantial harm [ER 5.7.333]. However, the Secretary of State notes the ExA also accepts that its conclusions in relation to cultural heritage, landscape and visual impact issues and the other harms identified, are ultimately matters of planning judgment on which there have been differing and informed opinions and evidence submitted to the examination [ER 7.5.26]. The Secretary of State notes the ExA’s view on the level of harm being substantial is not supported by the positions of the Applicant, Wiltshire Council, the National Trust, the English Heritage Trust, DCMS and Historic England. These stakeholders place greater weight on the benefits to the WHS from the removal of the existing A303 road compared to any consequential harmful effects elsewhere in the WHS. Indeed, the indications are that they consider there would or could be scope for a net benefit overall to the WHS [ER 5.7.54, ER 5.7.55, ER 5.7.62, ER 5.7.70, ER 5.7.72 and ER 5.7.83].”

“Ultimately, the Secretary of State prefers Historic England’s view on this matter for the reasons given [ER 5.7.62 – 5.7.69] and considers it is appropriate to give weight to its judgment as the Government’s statutory advisor on the historic environment, including world heritage. The Secretary of State is satisfied therefore that the harm on spatial, visual relations and settings is less than substantial and should be weighed against the public benefits of the Development in the planning balance.”

See also his overall conclusions at paragraphs 80 to 86.

Again, as with Anglia Square, the position of Historic England proved influential, as was that of the National Trust and other bodies.

A legal challenge from campaigners appears inevitable.

Manston Airport

On 9 July 2020 Grant Shapps also overturned the examining authority’s recommendation and confirmed the Manston Airport DCO. The examining authority comprised four inspectors (Kelvin MacDonald, Martin Broderick, Jonathan Hockley and Jonathan Manning).

The proposals would permit the reopening and development of Manston Airport, enabling it to become a dedicated air freight facility handling at least 10,000 air cargo movements each year, with the offer of some passenger, executive travel, and aircraft engineering services.

Why was the examining authority’s recommendation to reject the proposals not accepted?

“For the reasons above, the Secretary of State disagrees with the ExA’s recommendation to refuse development consent. As set out above in paragraphs 20 and 21, the Secretary of State considers there is a clear case of need for the Development and this should be given substantial weight. He considers the Development would support the government’s policy objective to make the UK one of the best-connected countries in the world and for the aviation sector to make a significant contribution to economic growth of the UK and comply with the Government’s aviation policy that airports should make the best use of their existing capacity and runways, subject to environmental issues being addressed. Substantial weight is given by the Secretary of State to the conclusion that the Development would be in accordance with such policies and that granting development consent for the Development would serve to implement such policy. The Secretary of State also considers that there are significant economic and socio-economic benefits which would flow from the Development, which should also be given substantial weight.

The Secretary of State accepts that there is the potential for short term congestion and delays on the local road system caused by the Development to occur before appropriate mitigation is delivered; however, he considers that the residual cumulative impacts would not be severe and gives limited weight to these effects. He concludes that the need and public benefits that would result from the Development clearly outweigh the heritage harm and the harm that may be caused to the tourist industry in Ramsgate. The Secretary of State also concludes that with the restrictions imposed by him in the DCO and also through the UUs only limited weight should be given to noise and vibration adverse effects.

For the reasons set out in paragraphs 24-26 above, the Secretary of State is content that climate change is a matter that should be afforded moderate weight against the Development in the planning balance. He does not agree with the ExA that operational matters weigh moderately against the grant of development consent being given for the Development.

The Secretary of State is content that the impacts of the Development in terms of air quality [ER 8.2.28 – 8.2.43]; biodiversity [ER 8.2.44 – 8.2.62]; ground conditions [ER 8.2.76 – 8.2.82]; landscape, design and visual impact [ER 8.2.104 – 8.2.120]; and water resources [ER 8.2.219 – 8.2.227] are of neutral weight in the decision as to whether to make the DCO.

When all the above factors are weighed against each other either individually or in- combination, the Secretary of State is satisfied that the benefits outweigh any adverse impacts of the Development.”

An objector, Jenny Dawes, has challenged the decision. Her crowdfunding page gives some basic information.

The claim was filed on 20 August and was granted permission by the High Court on about 14 October to proceed to a full hearing. It doesn’t seem that a hearing date has yet been set. The barristers are Paul Stinchcombe QC, Richard Wald QC and Gethin Thomas.

Norfolk Vanguard offshore windfarm

On 1 July 2020 Alok Sharma overturned the examining authority’s recommendation and confirmed the Norfolk Vanguard offshore windfarm DCO. The examining authority comprised four inspectors (Karen Ridge (Lead Member), Caroline Jones, Gavin Jones and Grahame Kean).

Why was their recommendation to reject the proposals not accepted?

“The Secretary of State notes that the ExA determined that consent should not be granted for the proposed Development because of potential impacts on habitats and species afforded protection under the Habitats Directive. In determining that it was not possible on the basis of the information available to it to rule out an AEoI on two sites protected by the Directive – the Flamborough and Filey Coast Special Protection Area and the Alde-Ore Estuary Special Protection Area – the ExA concluded that the proposed Development would not be in accordance with NPS EN- 1 and could not therefore be granted consent.

However, in other respects, the ExA concluded that, while there would be impacts arising from the proposed Development across a range of issues (including on local landscape and traffic and transport), those impacts were not of such significance or would be mitigated to such a degree as to be not significant as to outweigh the substantial benefits that would derive from the development of a very large, low carbon, infrastructure project. The ExA notes that, if one set aside the conclusion on Habitats-related issues, then in all other matters, the proposed Development would be in accordance with the National Policy Statements and national policy objectives. This conclusion was subject to some clarification on specific points, including mitigation proposals.

As is set out elsewhere in this submission, in light of the ExA’s Report to the Secretary of State, the Secretary of State consulted a range of parties including the Applicant about the Habitats-related issues and other relevant matters that had been raised in the ExA’s Report. On Habitats, further information on potential bird impacts such that the Secretary of State is now able to conclude that, on balance, there would be no Adverse Impact on Integrity for the Flamborough and Filey Coast Special Protection Area and the Alde-Ore Estuary Special Protection Area.

The Secretary of State notes that there were a range of views about the potential impacts of the Development with strong concerns expressed about the impacts on, among other things, the landscape around the substation, traffic and transport impacts and potential contamination effects at the site of the F-16 plane crash. However, he has had regard to the ExA’s consideration of these matters and to the mitigation measures that would be put in place to minimise those impacts wherever possible. The Secretary of State considers that findings in the ExA’s Report and the conclusions of the HRA together with the strong endorsement of offshore wind electricity generation in NPS EN-1 and NPS EN-3 mean that, on balance, the benefits of the proposed Development outweigh its adverse impacts. He, therefore, concludes that development consent should be granted in respect of the Development.”

Lang J granted permission on 2 July 2020 in relation to a crowdfunded legal challenge brought by an objector, Ray Pearce.

Drax Power Station Re-Powering Project

These DCO overturn instances are of course not new. On 9 October 2019 Alok Sharma overturned the examining authority’s recommendation and confirmed the Drax Power Station Re-Powering Project DCO. A challenge to the decision failed: ClientEarth v Secretary of State (Holgate J, 22 May 2020).

Nor of course are such instances new when it comes to planning appeals and call-ins.

Might I suggest that a review be carried out as to why they are occurring so often?

Finally, given the infrastructure theme to much of this post, please can I recommend my Town partner Duncan Field’s recent paper in the Journal of Urban Regeneration and Renewal, Overcoming obstacles to planning major infrastructure projects.

Simon Ricketts, 14 November 2020

Personal views, et cetera

CIL To Be Replaced By…CIL

When I saw a limelon for the first time yesterday (some recently marketed lime/melon hybrid since you ask, and tangy and refreshing it is indeed), I naturally thought of the proposed combined infrastructure levy: what on earth is it?

Planning For The Future is of course work in progress and it may be churlish for us to expect it to have all the answers. After all, it is up to us to provide cogent responses to the current consultation process.

But the sections in the document on infrastructure contributions are very light indeed, given the central role that section 106 and the community infrastructure levy play in the current system and the obvious complexity of arriving at a system for a combined infrastructure levy that on the one hand does not choke off various forms of development in some areas by making it unviable and that on the other hand both (1) raises sufficient monies to secure the delivery of necessary social (e.g. affordable housing) and physical infrastructure and also (2) ensures for the benefit of both communities and developers that the infrastructure will actually be provided in the right place, at the right time.

The lightness is in contrast to the detailed analysis of the existing position in relation to contributions by way of CIL and section 106 planning obligations that is the subject of a detailed study (143 pages) by respected academics (all those listed on the front page of the document), The Incidence, Value and Delivery of Planning Obligations and Community Infrastructure Levy in England in 2018-19, published alongside the white paper.

The objectives of the study were to

•Update the evidence on the current value and incidence of planning obligations

• Investigate the relationship between CIL and S106

• Understand negotiation processes and delays to the planning process

• Explore the monitoring and transparency of developer contributions

• Understand the early effects and expectations for the changes to developer contributions brought in by the revisions to the NPPF

Chapter 3 (The value of Planning Obligations and the Community Infrastructure Levy) sets out some interesting findings:

“• The estimated value of planning obligations agreed and CIL levied in 2018/19 was £7.0 billion. This valuation is premised upon the assumptions identified in the appendix, corresponding to survey validity, respondent representation and the distribution of values.

• When adjusted to reflect inflation the total value of developer contributions in real terms is £500 million higher than in 2016/17, £300 million higher than in 2007/08.

• 67% of the value of agreed developer contributions was for the provision of affordable housing, at £4.7 billion; this is the same proportion as in 2016/17 and is the joint-highest to date.

• 44,000 affordable housing dwellings were agreed in planning obligations in 2018/19. This is a reduction since 2016/17, but the value of this housing has increased over the same period due to an increase in house prices in many areas with higher developer contributions.

• The value of CIL levied by LPAs was £830 million in 2018/19, with a further £200 million levied by the Mayor of London.

• The geographic distribution of planning obligations and CIL is weighted heavily towards the south of England. The South East, South West and London regions account for 61% of the total value. However, the value of developer contributions exacted in London has fallen since 2016/17 – down from 38% to 28% of the total aggregate value.”

There is nothing in the white paper that explicitly draws from the findings of that report in order to arrive at the wholly new mechanism that is proposed.

Some people seem to have picked up the message that the white paper means the end of the community infrastructure levy – a cause for celebration in some parts. But the white paper’s proposal for a combined infrastructure levy to my mind is CIL writ large, potentially just as complex, with a whole new set of rate setting, liability, payment and spending mechanisms and with the express objective of raising more monies than the current system. It warrants its own focus at this point, away from the noise of the other proposals in the white paper.

How to begin to unpick what is proposed in relation to CIL and section 106 planning obligations (and what the proposals in relation to section 106 mean for the delivery of affordable housing in particular)? I wrote down for myself five basic questions:

1. How will planning obligations work under the new system?

2. What will happen to CIL?

3. How will the new Combined Infrastructure Levy be set?

4. What requirements will there be on local authorities as to how they apply combined infrastructure levy receipts?

5. Under the new system, how can local planning authorities set requirements for affordable housing and seek to ensure that they are delivered?

In order to try to answer them (in a way which would have to work in relation to all of the proposed consenting routes: DCO, outline planning permission in plan, PiP (if different from outline permission in plan, not sure!), traditional planning permission, PD), then I cut and pasted the relevant passages from the white paper in their entirety (only leaving out the detail of some of the “alternative options” floated and leaving out the questions raised in the consultation). It is easy to read summaries and think “well there must be more detail in the document itself”. It is worth reading these passages to see the totality of the proposals.

After these passages I then see how far we can get in answering my questions.

“The process for negotiating developer contributions to affordable housing and infrastructure is complex, protracted and unclear: as a result, the outcomes can be uncertain, which further diminishes trust in the system and reduces the ability of local planning authorities to plan for and deliver necessary infrastructure. Over 80 per cent of planning authorities agree that planning obligations cause delay. It also further increases planning risk for developers and landowners, thus discouraging development and new entrants.”

“1.19. Fourth, we will improve infrastructure delivery in all parts of the country and ensure developers play their part, through reform of developer contributions. We propose:

• The Community Infrastructure Levy and the current system of planning obligations will be reformed as a nationally-set value-based flat rate charge (‘the Infrastructure Levy’). A single rate or varied rates could be set. We will aim for the new Levy to raise more revenue than under the current system of developer contributions, and deliver at least as much – if not more – on-site affordable housing as at present. This reform will enable us to sweep away months of negotiation of Section 106 agreements and the need to consider site viability. We will deliver more of the infrastructure existing and new communities require by capturing a greater share of the ulpift [sic] in land value that comes with development.

• We will be more ambitious for affordable housing provided through planning gain, and we will ensure that the new Infrastructure Levy allows local planning authorities to secure more on-site housing provision.

• We will give local authorities greater powers to determine how developer contributions are used, including by expanding the scope of the Levy to cover affordable housing provision to allow local planning authorities to drive up the provision of affordable homes. We will ensure that affordable housing provision supported through developer contributions is kept at least at current levels, and that it is still delivered on-site to ensure that new development continues to support mixed communities. Local authorities will have the flexibility to use this funding to support both existing communities as well as new communities.

• We will also look to extend the scope of the consolidated Infrastructure Levy and remove exemptions from it to capture changes of use through permitted development rights, so that additional homes delivered through this route bring with them support for new infrastructure.

“4.5. Securing necessary infrastructure and affordable housing alongside new development is central to our vision for the planning system. We want to bring forward reforms to make sure that developer contributions are:

• responsive to local needs, to ensure a fairer contribution from developers for local communities so that the right infrastructure and affordable housing is delivered;

• transparent, so it is clear to existing and new residents what new infrastructure will accompany development;

• consistent and simplified, to remove unnecessary delay and support competition in the housebuilding industry;

• buoyant, so that when prices go up the benefits are shared fairly between developers and the local community, and when prices go down there is no need to re-negotiate agreements.

4.6. The Government could also seek to use developer contributions to capture a greater proportion of the land value uplift that occurs through the grant of planning permission, and use this to enhance infrastructure delivery. There are a range of estimates for the amount of land value uplift currently captured, from 25 to 50 per cent. The value captured will depend on a range of factors including the development value, the existing use value of the land, and the relevant tax structure – for instance, whether capital gains tax applies to the land sale. Increasing value capture could be an important source of infrastructure funding but would need to be balanced against risks to development viability.”

“4.7. We propose that the existing parallel regimes for securing developer contributions are replaced with a new, consolidated ‘Infrastructure Levy’.

Proposal 19: The Community Infrastructure Levy should be reformed to be charged as a fixed proportion of the development value above a threshold, with a mandatory nationally-set rate or rates and the current system of planning obligations abolished.”

“4.8. We believe that the current system of planning obligations under Section 106 should be consolidated under a reformed, extended ‘Infrastructure Levy’.

4.9. This would be based upon a flat-rate, valued-based charge, set nationally, at either a single rate, or at area-specific rates. This would address issues in the current system as it would:

be charged on the final value of a development (or to an assessment of the sales value where the development is not sold, e.g. for homes built for the rental market), based on the applicable rate at the point planning permission is granted;

• be levied at point of occupation, with prevention of occupation being a potential sanction for non-payment;

• include a value-based minimum threshold below which the levy is not charged, to prevent low viability development becoming unviable, reflecting average build costs per square metre, with a small, fixed allowance for land costs. Where the value of development is below the threshold, no Levy would be charged. Where the value of development is above the threshold, the Levy would only be charged on the proportion of the value that exceeded the threshold ; and

• provide greater certainty for communities and developers about what the level of developer contributions are expected alongside new development.

4.10. The single rate, or area-specific rates, would be set nationally. It would aim to increase revenue levels nationally when compared to the current system. Revenues would continue to be collected and spent locally.

4.11. As a value-based charge across all use classes, we believe it would be both more effective at capturing increases in value and would be more sensitive to economic downturns. It would reduce risk for developers, and would reduce cashflow difficulties, particularly for SME developers.

4.12. In areas where land value uplift is insufficient to support significant levels of land value capture, some or all of the value generated by the development would be below the threshold, and so not subject to the levy. In higher value areas, a much greater proportion of the development value would be above the exempt amount, and subject to the levy.

4.13. To better support the timely delivery of infrastructure, we would also allow local authorities to borrow against Infrastructure Levy revenues so that they could forward fund infrastructure. Enabling borrowing combined with a shift to levying developer contributions on completion, would incentivise local authorities to deliver enabling infrastructure, in turn helping to ensure development can be completed faster. As with all volatile borrowing streams, local authorities should assure themselves that this borrowing is affordable and suitable.

4.14. Under this approach the London Mayoral Community Infrastructure Levy, and similar strategic Community Infrastructure Levies in combined authorities, could be retained as part of the Infrastructure Levy to support the funding of strategic infrastructure.

4.15. In bringing forward the reformed Infrastructure Levy, we will need to consider its scope. We will also consider the impact of this change on areas with lower land values.”

Alternative options proposed: “The Infrastructure Levy could remain optional and would be set by individual local authorities”. “Alternatively, the national rate approach could be taken, but with the aim of capturing more land value than currently, to better support the delivery of infrastructure”

“Proposal 21: The reformed Infrastructure Levy should deliver affordable housing provision

4.20. Developer contributions currently deliver around half of all affordable housing, most of which is delivered on-site. It is important that the reformed approach will continue to deliver on-site affordable housing at least at present levels.

4.21. Affordable housing provision is currently secured by local authorities via Section 106, but the Community Infrastructure Levy cannot be spent on it. With Section 106 planning obligations removed, we propose that under the Infrastructure Levy, authorities would be able to use funds raised through the levy to secure affordable housing.

4.22. This could be secured through in-kind delivery on-site, which could be made mandatory where an authority has a requirement, capability and wishes to do so. Local authorities would have a means to specify the forms and tenures of the onsite provision, working with a nominated affordable housing provider. Under this approach, a provider of affordable housing could purchase the dwelling at a discount from market rate, as now. However, rather than the discount being secured through Section 106 planning obligations, it would instead be considered as in-kind delivery of the Infrastructure Levy. In effect, the difference between the price at which the unit was sold to the provider and the market price would be offset from the final cash liability to the Levy. This would create an incentive for the developer to build on-site affordable housing where appropriate. [Footnote: As above, a Section 106 planning obligation could still be used to secure a covenant on the land, where necessary. However, the value would be captured through the Infrastructure Levy, rather than Section 106. ] First Homes, which are sold by the developer direct to the customer at a discount to market price, would offset the discount against the cash liability.

4.23. Under this approach we recognise that some risk is transferring to the local planning authority, and that we would need to mitigate that risk in order to maintain existing levels of on-site affordable housing delivery. We believe that this risk can be fully addressed through policy design. In particular, in the event of a market fall, we could allow local planning authorities to ‘flip’ a proportion of units back to market units which the developer can sell, if Levy liabilities are insufficient to cover the value secured through in-kind contributions. Alternatively, we could require that if the value secured through in-kind units is greater than the final levy liability, then the developer has no right to reclaim overpayments. Government could provide standardised agreements, to codify how risk sharing would work in this way.

4.24. We would also need to ensure the developer was incentivised to deliver high build and design quality for their in-kind affordable homes. Currently, if Section 106 homes are not of sufficient quality, developers may be unable to sell it to a provider, or have to reduce the price. To ensure developers are not rewarded for low standard homes under the Levy, local authorities could have an option to revert back to cash contributions if no provider was willing to buy the homes due to their poor quality. It is important that any approach taken maintains the quality of affordable housing provision as well as overarching volumes, and incentivises early engagement between providers of affordable housing and developers. Local authorities could also accept Infrastructure Levy payments in the form of land within or adjacent to a site. Through borrowing against further Infrastructure Levy receipts, other sources of funding, or in partnership with affordable housing providers, they could then build affordable homes, enabling delivery at pace.

4.25. Alternative option: We could seek to introduce further requirements around the delivery of affordable housing. To do this we would create a ‘first refusal’ right for local authorities or any affordable housing provider acting on their behalf to buy up to a set proportion of on-site units (on a square metre basis) at a discounted price, broadly equivalent to build costs. The proportion would be set nationally, and the developer would have discretion over which units were sold in this way. A threshold would be set for smaller sites, below which on-site delivery was not required, and cash payment could be made in lieu. Where on-site units were purchased, these could be used for affordable housing, or sold on (or back to the developer) to raise money to purchase affordable housing elsewhere. The local authority could use Infrastructure Levy funds, or other funds, in order to purchase units.”

“Proposal 22: More freedom could be given to local authorities over how they spend the Infrastructure Levy

4.26. It is important that there is a strong link between where development occurs and where funding is spent. Currently, the Neighbourhood Share of the Community Infrastructure Levy ensures that up to 25 per cent of the levy is spent on priorities in the area that development occurred, with funding transferred to parish councils in parished areas. There are fewer restrictions on how this funding is spent, and we believe it provides an important incentive to local communities to allow development in their area. We therefore propose that under this approach the Neighbourhood Share would be kept, and we would be interested in ways to enhance community engagement around how these funds are used, with scope for digital innovation to promote engagement.

4.27. There is scope for even more flexibility around spending. We could also increase local authority flexibility, allowing them to spend receipts on their policy priorities, once core infrastructure obligations have been met. In addition to the provision of local infrastructure, including parks, open spaces, street trees and delivery or enhancement of community facilities, this could include improving services or reducing council tax. The balance of affordable housing and infrastructure may vary depending on a local authority’s circumstances, but under this approach it may be necessary to consider ring-fencing a certain amount of Levy funding for affordable housing to ensure that affordable housing continues to be delivered on-site at current levels (or higher). There would also be opportunities to enhance digital engagement with communities as part of decision making around spending priorities. Alternatively, the permitted uses of the Levy could remain focused on infrastructure and affordable housing, as they are broadly are at present. Local authorities would continue to identify the right balance between these to meet local needs, as they do at present.”

“ 5.19. If a new approach to development contributions is implemented, a small proportion of the income should be earmarked to local planning authorities to cover their overall planning costs, including the preparation and review of Local Plans and design codes and enforcement activities.”

Back to my questions:

1. How will planning obligations work under the new system?

It is said in the paper that the “current system of planning obligations under Section 106 should be consolidated under a reformed, extended ‘Infrastructure Levy’.” There will no longer be “months of negotiation of Section 106 agreements”. “Section 106 planning obligations [will be] removed”.

The proposals seem to assume that section 106 is simply a mechanism for securing provision of affordable housing and other “developer contributions”. Whilst that is its main role at present, it is a mechanism for a wide range of commitments – see this table from the accompanying study:

The joy of section 106 is its flexibility to circumstances and policy, enabling the applicant commit to commit, in a way that binds successors in title, to all necessary mitigation measures that cannot be secured by way of planning condition and which are necessary to overcome what would otherwise be reasons not to allow the proposed development to proceed. On more complex developments it is the only tried and tested way in which appropriate mechanisms can be arrived at to make sure that, for instance, necessary infrastructure comes forward at the right time and by way of a sensible process, bespoke to the circumstances of the development, agreed between the parties. There is no proposal in the paper (although it has previously been floated by some) that the role of planning conditions could be expanded.

Where financial contributions are paid to a local planning authority under a section 106 agreement they can only be used for the specified purposes, whereas the proposals in relation to the consolidated infrastructure levy appear to be more loose: “We could also increase local authority flexibility, allowing them to spend receipts on their policy priorities, once core infrastructure obligations have been met.”What is meant by “core infrastructure obligations”? The core infrastructure obligations necessary to make a particular development acceptable? If so, then a document will need to be drawn up which surely will be as complex as a section 106 agreement – when will the school come forward, using the developer’s infrastructure levy contribution, how, where and when? Local employment and training measures, provision and maintenance of open space and play areas, carbon reduction commitments, commitments to specified transport improvements and the formulation and implementation of transport plans – are all these to be swept away? If so, the document needs to explain either why this is acceptable and desirable or how these matters will otherwise be addressed.

Additional confusion arises when these bold statements as to the removal of section 106 obligations are then contrasted with the footnote to paragraph 4.22: “As above, a Section 106 planning obligation could still be used to secure a covenant on the land, where necessary. However, the value would be captured through the Infrastructure Levy, rather than Section 106”. What does that mean? What would the “covenant on the land” and if the only point is to make sure that the infrastructure levy binds successors in title, why not leave that for the legislation itself?

Is anyone out there clearer at this stage ?

2. What will happen to CIL?

The community infrastructure levy will be replaced by the consolidated infrastructure levy, which will work in various significantly different ways to the current system. For instance:

• It will be a “nationally-set value-based flat rate charge”. I try to unpick this in my answer to question 3 below.

• It will be “levied at point of occupation”.

“Revenues would continue to be collected and spent locally.”

• “we would also allow local authorities to borrow against Infrastructure Levy revenues so that they could forward fund infrastructure. Enabling borrowing combined with a shift to levying developer contributions on completion, would incentivise local authorities to deliver enabling infrastructure, in turn helping to ensure development can be completed faster.” [If a developer needs specific infrastructure to be delivered in order to enable development to proceed, how will this be documented? What if, as is usually the case, the developer would prefer to deliver the infrastructure, e.g. build the school?]

• The “London Mayoral Community Infrastructure Levy, and similar strategic Community Infrastructure Levies in combined authorities, could be retained as part of the Infrastructure Levy to support the funding of strategic infrastructure” [Is this retained as in retained under the current CIL system so that in London CIL would continue to operate alongside the new levy, or is this retained as in “rolled into”?]

• “We will also look to extend the scope of the consolidated Infrastructure Levy and remove exemptions from it to capture changes of use through permitted development rights” [This is odd – development pursuant to PD rights is not exempt from CIL at the moment. Is this flagging more widely that exemptions will be removed? That would have been a sensible, simplifying, approach were CIL levels to be reduced, but here we are faced with an increased Infrastructure Levy…]

3. How will the new Combined Infrastructure Levy be set?

• It will be a “nationally-set value-based flat rate charge, set nationally, at either a single rate, or at area-specific rates”. [Clearly this can’t in any circumstances mean a nationally-set flat rate charge of x per square metres but must mean a nationally-set proportion of (I assume) gross development value.]

• There will be “a value-based minimum threshold below which the levy is not charged, to prevent low viability development becoming unviable, reflecting average build costs per square metre, with a small, fixed allowance for land costs. Where the value of development is below the threshold, no Levy would be charged. Where the value of development is above the threshold, the Levy would only be charged on the proportion of the value that exceeded the threshold”. [When would the developer have certainty that the threshold was not exceeded, or indeed as to what the value (and therefore charge) is considered to be, through what procedure and with what rights to appeal against the valuation? Is the valuation a notional one, applying a formula, or an actual valuation?]

• “buoyant, so that when prices go up the benefits are shared fairly between developers and the local community, and when prices go down there is no need to re-negotiate agreements.” [the timing of the valuation date will be critical, as will how to deal with phased and revised schemes and so on].

• “It would aim to increase revenue levels nationally when compared to the current system” [so more than £7bn, on the basis of the findings in that study – in a way which will need not to disincentivise owners and developers from carrying out development].

That’s all I can glean from the document. It seems to me that local planning authorities will lose much flexibility, for instance in the setting of differential rates for different types of floorspace (the document does focus to a significant extent on residential development – what rate would be set for, say, offices, logistics or retail, particularly given the weaker relationship between non-residential uses and the delivery of affordable housing, and what about not for profit development – will we need to reintroduce a number of the current CIL exemptions?

4. What requirements will there be on local authorities as to how they apply combined infrastructure levy receipts?

• “With Section 106 planning obligations removed, we propose that under the Infrastructure Levy, authorities would be able to use funds raised through the levy to secure affordable housing”. I try to unpick this in my answer to question 5 below.

• “We could also increase local authority flexibility, allowing them to spend receipts on their policy priorities, once core infrastructure obligations have been met. In addition to the provision of local infrastructure, including parks, open spaces, street trees and delivery or enhancement of community facilities, this could include improving services or reducing council tax.” [So, infrastructure levy surplus receipts (after delivery of “core infrastructure”) become unhypothecated tax receipts – the less the authority spends on infrastructure, the lower it can keep its council tax, hmm…]?

• “If a new approach to development contributions is implemented, a small proportion of the income should be earmarked to local planning authorities to cover their overall planning costs, including the preparation and review of Local Plans and design codes and enforcement activities.”

5. Under the new system, how can local planning authorities set requirements for affordable housing and seek to ensure that they are delivered?

• “We will be more ambitious for affordable housing provided through planning gain, and we will ensure that the new Infrastructure Levy allows local planning authorities to secure more on-site housing provision”.

• “This could be secured through in-kind delivery on-site, which could be made mandatory where an authority has a requirement, capability and wishes to do so. Local authorities would have a means to specify the forms and tenures of the onsite provision, working with a nominated affordable housing provider. Under this approach, a provider of affordable housing could purchase the dwelling at a discount from market rate, as now. However, rather than the discount being secured through Section 106 planning obligations, it would instead be considered as in-kind delivery of the Infrastructure Levy. In effect, the difference between the price at which the unit was sold to the provider and the market price would be offset from the final cash liability to the Levy. This would create an incentive for the developer to build on-site affordable housing where appropriate. First Homes, which are sold by the developer direct to the customer at a discount to market price, would offset the discount against the cash liability.” [So presumably the developer could net-off the costs of on-site delivery from its infrastructure levy liability. How is this to be documented? Who adjudicates on the obvious valuation issues arising?]

• “Under this approach we recognise that some risk is transferring to the local planning authority, and that we would need to mitigate that risk in order to maintain existing levels of on-site affordable housing delivery. We believe that this risk can be fully addressed through policy design. In particular, in the event of a market fall, we could allow local planning authorities to ‘flip’ a proportion of units back to market units which the developer can sell, if Levy liabilities are insufficient to cover the value secured through in-kind contributions. Alternatively, we could require that if the value secured through in-kind units is greater than the final levy liability, then the developer has no right to reclaim overpayments. Government could provide standardised agreements, to codify how risk sharing would work in this way” [How to safeguard against misuse?]

“To ensure developers are not rewarded for low standard homes under the Levy, local authorities could have an option to revert back to cash contributions if no provider was willing to buy the homes due to their poor quality.”

• “Local authorities could also accept Infrastructure Levy payments in the form of land within or adjacent to a site.” [Back to ensuring a robust valuation process].

Again, maybe it’s just me but I’m left scratching my head. This is a wholly different approach to extracting contributions for affordable housing and for ensuring that they are delivered. Basic questions:

• How will the requirements (quantum, tenure mix, size] be set at policy stage and determined at application stage (in advance of valuations) such that there can be confidence that development will not be stalled through lack of viability?

• Are we moving to a system where all affordable housing is delivered by a local authority nominated housing provider, with less ability for the developer to seek to improve viability?

• How can there be any confidence that this mechanism will result in more on-site affordable housing than at present?

I also recommend George Venning’s LinkedIn piece on the issues arising: Planning Reforms Contain a Poison Pill.

Again, thoughts welcome – it’s not that the proposals can’t be made to work, it’s just that much more input is required and, in my view, a cautious approach needs to be taken so as to guard against the inevitable unintended consequences.

The deadline for consultation responses is 29 October. We are likely to be collating a Town response, if only on specific issues such as this. If you would be interested in feeding in your thoughts, then please let me know, although, health warning, we are not in the business of designing fruit by committee!

Simon Ricketts, 22 August 2020

Personal views, et cetera