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

For The Future

are probably the three words I most associate with the planning system in England, since you asked.

The main part of this post is a commentary by special guest and fellow Town partner Duncan Field on the Government’s Planning for the future white paper, published on 6 August 2020.

But before we get to that, some initial comments from me on timescales.

The consultation period on the white paper ends on 29 October 2020.

The aspiration in the document is that (subject to time extensions for recent plans) new local plans should be in place by the end of this Parliament, so by Spring 2024. Given that those local plans will take up to 30 months to be put in place under the new system proposed, the necessary primary legislation will need to have been passed and in force, with any necessary accompanying Regulations and guidance, by Autumn 2021.

By way of proxy for legislative timescales, the less ambitious Housing and Planning Act 2016 and Neighbourhood Planning Act 2017 each took around seven months to pass through the necessary Parliamentary stages, which would mean introducing a Bill by the beginning of 2021. One perhaps has to look back to the Localism Act 2011 for planning legislation of equivalent complexity. That took eleven months from soup to nuts.

Something is going to have to give – either there is going to be rushed consideration of these proposals, which still need significant refinement, or that “end of this Parliament” aspiration is going to have to be reconsidered before long.

But in any event, things can be expected to move quickly.

On the subject of timescales, of course there are shorter term measures proposed in MHCLG’s accompanying document “Changes to the current planning system: Consultation on changes to planning policy and regulations”, which is the subject of a shorter consultation period, until 1 October.

The timescales in that document for the four sets of proposals within it are as follows:

· changes to the standard method for assessing local housing need: “Following the outcome of this consultation, the Government will update the planning practice guidance with the revised standard method for assessing local housing need.”

· securing of First Homes through developer contributions in the short term until the transition to a new system: “We intend to begin by making planning policy changes, to ensure that clear expectations are set. However, to ensure that First Homes are delivered, nationwide, on a consistent basis, we are keeping under consideration the option to strengthen the policy through primary legislation at a future date. We also intend to introduce an exemption from the Community Infrastructure Levy for First Homes, to enable delivery prior to wider developer contribution reform. This would require changes to regulations. Lastly, we are also considering significant reforms to the system of developer contributions. We will ensure that First Homes will continue to be delivered under a reformed approach”

· supporting small and medium-sized builders by temporarily lifting the small sites threshold below which developers do not need to contribute to affordable housing: “Following the consultation, a decision will be taken on whether to proceed with this approach. If it is taken forward, this could be through the introduction of a Written Ministerial Statement in the Autumn.”

· extending the current Permission in Principle to major development: “Following this consultation, if we introduce Permission in Principle by application for major development, we aim to introduce amending regulations this Autumn, with the regulations expected to come into force by the end of the calendar year. Changes to the fee structure would require separate changes to the Planning Fees Regulations.”

The white paper is in my view a considered document and less radical than might have been expected, although certainly ambitious in its breadth. Proposals spin out of it, one after the other, often just in a sentence or two. There are of course areas where there needs to be further thought or explanation. For me, there are two big ones in particular:

⁃ the way in which housing numbers are to be set by the Government for individual authorities and how to resolve the inevitable tension between a swifter examination process and a process that allows proposals in a plan (and the basis for proposals not being in the plan) to be properly tested (particularly where the plan is going to be the equivalent of a series of outline planning permissions for its growth areas);

⁃ how this new infrastructure levy is really going to work and how obligations are going to be addressed that presently are dealt with by way of section 106 agreement, in particular the delivery of affordable housing.

There will also have to be a clear working through of the respective powers and responsibilities across the system, as between government, strategic authorities, local planning authorities and neighbourhoods.

I must say that I found Chris Katkowski QC’s explanations in the latest Have We Got Planning News For You episode really helpful in bringing the proposals, and the thinking behind them, to life. And, boring to say, there is no substitute for reading the actual document.

We are going to drill down into the likely practical implications of the proposals in our next webinar, arranged for 5 pm on 13 August. Do register here: https://us02web.zoom.us/webinar/register/WN_ddkW3FG1SeS4j1XuV5KK6A . The panel will be:

• Chris Young QC (barrister, No 5 Chambers)

• Steve Quartermain CBE (consultant, Town Legal LLP)

• Catriona Riddell (Catriona Riddell & Associates)

• Duncan Field (partner, Town Legal LLP)

• Thea Osmund-Smith (barrister, No 5 Chambers)

• Gordon Adams (Battersea Power Station)

• myself

Now, Duncan’s thoughts, as follows:

Planning for the Future begins with some fairly combative language, referring to “our outdated and ineffective planning system” and drawing comparisons with a patched up building which needs to be torn down.

In truth the Government’s proposals do not go quite as far as that and in practice, to continue with the same analogy, we might end up with a better and more sustainable outcome if we were to save the parts of the “patched up building” which have architectural merit. The biggest problem with the current system is not that it is all inherently bad but that it is not sufficiently resourced; it is a pity that planning reforms by successive Governments have never really grappled with that central issue. The good news on this occasion is that the new system will be accompanied by a comprehensive skills and resources strategy for local authorities and key participants in the system; let’s hope the Government delivers on that.

Further on in the document there are some powerful words from the Secretary of State which bring home just how important a time this is for the planning system and what it can deliver.  It is hard to disagree with any of this:

The outbreak of COVID-19 has affected the economic and social lives of the entire nation. With so many people spending more time at home than ever before, we have come to know our homes, gardens and local parks more intimately. For some this has been a welcome opportunity to spend more time in the place they call home with the people they love. For others – those in small, substandard homes, those unable to walk to distant shops or parks, those struggling to pay their rent, or indeed for those who do not have a home of their own at all – this has been a moment where longstanding issues in our development and planning system have come to the fore.

Onto the objectives for reform, which can be summarised as follows:

• Reduce complexity and with it, uncertainty and delay.

• In doing so, deliver a more competitive market with a greater diversity of developers.

• Remove the discretionary nature of individual development management decisions and replace it with a rule-based system of development control.

• In doing so, reduce planning risk and the cost of capital for development.

• Reduce the time it takes to produce a local plan.

• Simplify assessments of housing need, viability and environmental impacts.

• Restore public trust and encourage more widespread public participation.

• Get better at unlocking growth and opportunity, encouraging beautiful new places, supporting town and city centres and revitalising existing buildings as well as new development.

• Harness digital technology.

Linked to this is a long list of desired outcomes including the user experience, home ownership, access to infrastructure, economic growth and innovation.

We then come to the main proposals which the Government intends to bring forward:

1. Local plans

a. These will be simplified so that they only identify land for development, the sites that should be protected and the development that can take place.  There would be three categories of land:

i. Growth – sites suitable for comprehensive development which, once allocated, will have outline approval for development.

ii. Renewal – sites where smaller scale development is appropriate, which would benefit from a statutory presumption in favour of development once allocated.

iii. Protected – sites with environmental or cultural characteristics where development should be subject to more stringent controls.

An alternative approach might be a more binary system (growth and renewal with permission in principle versus protected areas) or more scope for the existing development management approach in areas other than those allocated for “growth”.

b. Plans should become digital, visual and map-based, interactive and data rich, using a standardised approach to support open access.

c. Local plans (and neighbourhood plans) will be more focused on giving clear area-specific requirements for land that is allocated for growth and renewal including design codes; generic development management policies and duplication of national policy and guidance needs to be avoided.

d. Plans should be subject to a single test of achieving sustainable development instead of the current tests for soundness and the duty to co-operate.  There would be no Sustainability Appraisal and instead this would be replaced by a simplified process for assessing the environmental impact of plans.

e. Local plans would meet housing need by reference to a standard method for establishing housing requirements developed and set at a national level; this would mean distributing the national housebuilding target of 300,000 new homes annually, and one million homes by the end of the Parliament, taking into account local factors including constraints, opportunities and affordability.  The Housing Delivery Test would stay.

f. Local plans would have to be brought forward by reference to a fixed 30 month statutory timescale with six stages and individual timings for each stage.

g. Local planning authorities would be under a duty to review their plans every 5 years; powers of intervention would remain such as the issuing of directions and preparation of a plan in consultation with local people.

h. Neighbourhood Plans to be retained but with more focus on form of development to reflect the proposals for Local Plans.

This is a refreshingly clear vision of what local plans might become and a digitalised system would be transformative for the user experience and public engagement. However, there are some big questions around how to encourage strategic planning across local authority boundaries for the bigger than local issues (the Government is open to suggestions), how in practice the “sustainable development” test would work and, linked to that, how robust the new environmental assessment process will be.

Equally as important, what will the effect of these promised changes be on current local plans? Without further incentives or assurances around their continuing effect in any transitional arrangements as we switch over to the new system, there must be a real concern they will be halted in their tracks.

2. Development Management

a. As indicated above, growth areas allocated in a local plan would have outline permission for the principle of development; details would be agreed and full planning permission achieved through a new reserved matters process, a local development order or possibly, on bigger sites, via a development consent order.

b. Renewal areas would benefit from a new statutory presumption in favour of development and would benefit from either a new automatic consenting route where specified forms of development meet design and other prior approval requirements, a faster planning application process or a local or neighbourhood development order.

c. Proposals which do not conform to the local plan in renewal and growth areas could still come forward, exceptionally, through a planning application process.

d. In protected areas, proposals will have to be brought forward via a planning application (subject to any permitted development rights or local development orders) and will be judged against the NPPF.

e. Generally, the development management process will be based on a more streamlined end-to-end process with firm deadlines for determination through a mix of:

i. Digitalisation;

ii. Data access;

iii. Shorter and standardised applications with reduced or limited supporting material;

iv. A standardised approach to technical information, conditions and developer contributions; and

v. Delegation of detailed planning decisions to planning officers where the principle of development has been established.

f. The Government will build in incentives for prompt determination of applications by local planning authorities such as deemed approval of some applications or refunds of application fees.

g. The process will still be subject to call-in powers and appeals but the Government expects the volume of call-ins and appeals to reduce over time.

h. There will be encouragement for faster build out by making provision in local plans/design codes for a variety of development types by different builders (picking up on the conclusions of the Letwin Review).

This vision for the new development management system feels less clear: permission in principle and outline planning permission are used interchangeably in places as a consequence of land being allocated for growth; however, over and above this, there appears to be provision for a “full” planning permission through a new reserved matters system or local development orders or even development consent orders. Would this not remove a lot of the benefit of allocating land for growth?  There is also a myriad of possible ways in which land allocated for renewal might gain consent and, in the meantime, we retain the current planning application process as well.  If the Government is not careful it might add to the complexity of development management.

Certainly, we can all get on board with the much-needed streamlining of the development management process from end to end, with more standardisation, reducing the quantity of application documents and increased use of digital technology.  However, resourcing this change will be key to its success.

3. Building better, building beautiful and sustainable places

Design and place-making is still high up on the Government’s political agenda.  Proposals in this space include the following:

a. A National Model Design Code to be published in the Autumn which will work alongside the National Design Guide and the Manual for Streets; together these are expected to have a bearing on design of new communities and to guide decisions on development. (This will be an early entrant into the current planning system.)

b. Local guides and codes are to be prepared wherever possible to reflect local character but need to have input from the local community before they are given any weight in the planning process.

c. A new expert body will be set up to help local authorities make use of design guidance and codes, as well as performing a wider monitoring and challenge role for the sector.

d. The much-heralded “fast-track” for beauty will be achieved through:

i. The NPPF – which will have provision for schemes that comply with local design guides and codes to be approved quickly;

ii. Legislation to require that sites in growth areas should have a masterplan and site-specific code as a condition of the permission in principle which is granted through allocation in the local plan; and

iii. Widening permitted development rights through the use of “pattern books” for different building types.

e. The NPPF will require targeted consideration of measures to support climate change mitigation and adaptation. (In our view, policy has been playing catch-up on climate change for some time – this is long overdue and should be welcomed.)

f. There will be a quicker and simpler framework for assessing environmental impacts, stepping away from the current frameworks such as Strategic Environmental Assessment, Sustainability Appraisal and Environmental Impact Assessment.  The key requirements for the new framework will be:

i. early consideration;

ii. clear and easy to understand; and

iii. avoidance of duplication.

A further consultation on this is expected in the Autumn.

g. The Government intends to review and update the planning framework for listed buildings and conservation areas, to ensure their significance is conserved while allowing, where appropriate, sympathetic changes to support their continued use and address climate change.

h. Improvements to the energy efficiency standards for buildings will be brought forward to help meet the 2050 net zero commitment.

The intention here is clear and consistent with the recent focus of the Government on design and beauty in the planning system.  The area with the most loaded questions is the promised framework for assessing environmental impact; in our view, there is clear scope to reduce the voluminous and highly technical nature of the current framework but now is not the time to water it down in terms of its ambit and its protective function.  We will have to wait until the Autumn to find out more.

4. Infrastructure

There are radical proposals for the funding of infrastructure:

a. Replace S106 obligations and the current version of Community Infrastructure Levy with a new Infrastructure Levy calculated as a fixed proportion of the development value above a threshold, with a mandatory, nationally-set rate or rates (potentially variable by area).

b. This new levy will be charged on the final value of a development (or an assessed sales value where the development is not sold, e.g. build to rent) by reference to the rate in force when planning permission is granted.  This would have to be paid before occupation.

c. Local authorities would be able to borrow against Infrastructure Levy revenues so that they could forward fund infrastructure.

d. The London Mayoral Community Infrastructure Levy and similar strategic Community Infrastructure Levies in combined authorities could be retained.

e. The Infrastructure Levy Could be extended to capture changes of use without additional floor area and through permitted development.

f. The new levy would be extended to fund affordable housing.  Allowance would be made for in-kind delivery on-site, which could be made mandatory where an authority has a requirement, a capability to deliver on site and wishes to do so. In those circumstances local authorities would be able to specify the form and tenure of the on-site provision.  The Government anticipates that there would need to be a considered policy approach to the risk of imbalance between the value of the agreed in-kind delivery and the fluctuating nature of the levy liability, contingent as it will be on the development value.

g. Local authorities could be given more freedom on how they spend the levy.

There is a lot of detail to be worked through here.  Setting the new levy at a level which does not deter development (and indeed land supply through the price paid by developers) will be key and a difficult issue to judge.  

The Government will also need to be scrupulous in ensuring that affordable housing continues to come forward using levy funds and still comes forward as part of mixed and balanced communities.

The removal of the blunt and inflexible tool that we have come to love or hate in the form of CIL is welcome in our view and with it the removal of a considerable amount of confusing and time-consuming red tape.  For practical reasons – not least delivering site-specific solutions for development – we are not sure we are witnessing the end of S106 obligations or an equivalent just yet but they will undoubtedly be slimmed down.

5. Delivery

The consultation document ends with a few final proposals and thoughts from Government on the delivery of a new planning system:

a. As a first step there is a parallel consultation on changes to the current system including extension of Permission in Principle (by application to major development), the standard method for assessing local housing need, First Homes and supporting SME builders by temporarily lifting the small sites threshold below which developers do not need to contribute to affordable housing. More here: https://www.gov.uk/government/consultations/changes-to-the-current-planning-system

b. The Government sees a potential delivery role for development corporations.

c. The reforms are considered likely to reduce judicial review risk.

d. The need for resources and skills is recognised and will be addressed through a comprehensive strategy.  In principle, the Government’s view is that the cost of operating the new planning system should be principally funded by the beneficiaries of planning gain – landowners and developers – rather than the national or local taxpayer.  Funding may also be achieved through application fees and potentially the new infrastructure levy or- to a limited extent – general taxation.

e. The Government intends to strengthen the powers for local planning authorities to enforce against breach of planning control and provide incentives for enforcement action to be taken.  

To end where this overview began, resources are key and a comprehensive strategy to ensure the sufficiency of funding and skills will be very welcome, as long as it does what it says on the tin. This will be vital to the success of the new system.

We know now what the Government wants to achieve. It is up to all of us in the sector to help them make it work and if parts of the system are worthy of retention for their “architectural” merit, to explain why that is, with reference to the Government’s objectives.

Thanks Duncan.

Simon Ricketts, 7 August 2020

Personal views, et cetera

The New Towns Question (Again)

Whilst we wait for this planning policy paper, the speculation rises. Old ideas get dusted down again, pitches are rolled.

The post-war new towns programme saw 27 UK new towns built by state-sponsored development corporations under the New Towns Act 1946 and later amending legislation. One of the conundrums that successive governments have grappled with over the last 40 years or so is how to create the conditions in which the private sector, rather than the state, can bring forward and deliver residential-led proposals at scale, whether in the form of new towns or urban extensions.

The jargon doesn’t help. We don’t seem to want to call it what it is, so an urban extension becomes a “sustainable urban extension”, which becomes a SUE. A new town presumably is a bit much for our sensitive modern ears, so to big up the environmental credentials, and to tip a hat to Ebenezer Howard, it becomes a new garden village, garden town or garden community (or, when the “eco-“ prefix became fashionable a decade or so ago, eco-town). The precise terminology is usually driven by the Government funding stream of the day, eg

⁃ The Eco-towns prospectus, July 2007 (“Eco-towns are a major opportunity for local authorities, house builders, developers and registered social landlords to come together to build small new towns. Eco-towns should be well designed, attractive places to live, with good services and facilities, and which connect well with the larger towns or cities close by. Uniquely, they offer an opportunity to design a whole town – business and services as well as homes – to achieve zero-carbon development, and to use this experience to help guide other developments across the country. The essential requirements we are looking for are:
(i) eco-towns must be new settlements, separate and distinct from existing towns but well linked to them. They need to be additional to existing plans, with a minimum target of 5,000 – 10,000 homes;”
(ii) the development as a whole should reach zero carbon standards, and each town should be an exemplar in at least one area of environmental sustainability;
(iii) eco-town proposals should provide for a good range of facilities within the town – a secondary school, a medium scale retail centre, good quality business space and leisure facilities;
(iv) affordable housing should make up between 30 and 50 per cent of the total through a wide range and distribution of tenures in mixed communities, with a particular emphasis on larger family homes;
(v) a management body which will help develop the town, provide support for people moving to the new community, for businesses and to co-ordinate delivery of services and manage facilities
.”)

The Locally-Led Garden Villages, Towns and Cities prospectus, March 2016 (“Expressions of interest are sought by 31 July 2016 for “garden village” projects defined by the Government as developments of between 1,500 and 10,000 homes that meet specified criteria. Up to 12 proposals are to be supported. The list of information required has now been published. This follows DCLG’s March 2016 prospectus that covered both garden villages and garden towns/cities (10,000 homes plus). Key criteria include:

⁃ backing from the relevant local authorities

⁃ engagement with the local community

⁃ embedding of “garden city principles””) (see 17 June 2016 blog post How Does Your Garden Village Grow?)

⁃ the Garden Communities prospectus, August 2018 (“The Government “will prioritise proposals for new Garden Towns (more than 10,000 homes), but will consider proposals for Garden Villages (1,500-10,000 homes) which are particularly strong in other aspects. For instance, demonstrating exceptional quality or innovations, development on predominantly brownfield sites, being in an area of particularly high housing demand, or ability to expand substantially further in the future.”) (see my 24 August 2018 blog post Let A Million New Homes Bloom).

New settlement” is probably the least value-laden term and that’s what I’ll use for the rest of this post.

One of the current hot topics, ahead of this planning policy paper which may go in an entirely different direction, has been whether the Nationally Significant Infrastructure Projects regime under the Planning Act 2008 should be extended so as include new settlements and other major residential-led projects.

In some ways, this wouldn’t be a huge leap.

After all, the system was extended by way of the Infrastructure Planning (Business or Commercial Projects) Regulations 2013, to allow the Secretary of State to designate business and commercial projects as NSIPs (with very limited take up – two projects as far as I know, neither of which yet the subject of a formal application, the London Resort theme park proposal and the International Advanced Manufacturing Park Two project).

It was extended again in April 2017, by way of section 160 of the Housing and Planning Act 2016, to allow NSIPs to include “related housing development” that has some special or functional connection with the particular infrastructure project, capped at around 500 homes (with no take up yet as far as I am aware).

At the time that the decision was made to allow business and commercial projects to use the NSIPs system, the idea of also allowing major residential development projects to be included was considered, but rejected:

“Planning for housing and the determination of planning applications for housing development is a primary role of local councils and the Government does not consider it appropriate to remove this responsibility from them. The Government has taken a number of steps to make clear the role of local councils in planning for housing including through the National Planning Policy Framework.

The Planning Act 2008 already bars dwellings from being consented as “associated development” alongside a nationally significant infrastructure project. The Growth and Infrastructure Act 2013 additionally sets out that the Government may not prescribe housing as a form of business and commercial development. [This of course preceded the 2017 change!]

Given the strong support for the exclusion of housing from the nationally significant infrastructure planning regime and the Government proposes to take no further action in this respect”.

(Major infrastructure planning: extending the regime to business and commercial projects: Summary of responses and government response (June 2013)).

The Government hangs on to the mantra that new settlements must be “locally-led” but isn’t this just an attempt to avoid being seen as directly responsible either for the consequences of its own target-setting or for properly underwriting on a longterm basis the costs of delivery? After all, why shouldn’t business and commercial projects be “locally led”, and how does call-in fit in?

Since 2018 we have had the wording in what is now paragraph 72 of the NPPF: “The supply of large numbers of new homes can often be best achieved through planning for larger scale development, such as new settlements or significant extensions to existing villages and towns, provided they are well located and designed, and supported by the necessary infrastructure and facilities. Working with the support of their communities, and with other authorities if appropriate, strategic policy-making authorities should identify suitable locations for such development where this can help to meet identified needs in a sustainable way.

But is it really satisfactory for the Government to continue with the position that planning for housing is the role of local councils and that it is not going to remove that responsibility from them?

The Government has sought to address concerns that proposals of this scale may be difficult to deliver by way of the traditional Town and Country Planning Act 1990 regime, even if there is local support (big “if”). By way of the New Towns Act 1981 (Local Authority Oversight) Regulations 2018, it introduced an option for the procedures within the New Towns Act 1981 to be used by way of the creation of a “locally-led new town development corporation” at the application of the relevant local authority or locally authorities. MHCLG’s 2018 guidance document explains how the process is meant to work, although you will have to blow the dust off it – another process which I do not think has yet been used (and I place local development orders in a similar category – very little take up, and what there has been has not been in relation to new settlements).

So if no appetite for state-sponsored new settlements, no appetite for local authority sponsored new settlements under the 2018 Regulations and great difficulty with delivery through the traditional planning system (eg the West of England and North Essex Authorities plans, and more besides) – what else can be done to unlock the potential?

It is unsurprising that thoughts turn again to the NSIPs process.

Think tank (groan) the Social Market Foundation published a paper in June 2020 Unlocking Britain: Recovery and renewal after COVID-19 with a disparate series of proposals across various areas of policy. It is curious that in relation to planning, the paper’s big idea is to greatly expand the use of the NSIPs process:

““Here are the simple legislative steps we need to take to achieve this, and it can all be done by changes to the Planning Act:

A. Remove the need for DCOs to be made in accordance with an NPS – this won’t work for projects that are not of national significance, and some NPS do not exist, or are out of date anyway;

B. Shorten the time period required for public examination to four months (rather than six months as currently) because we would be dealing with smaller projects;

C. Reduce the time for the planning inspector and the Secretary of State (separately) to make their decisions under this process from three months to two months;

D. Limit the ability for the Secretaries of State to extend the time period they have for final decision–making (currently three months, hopefully changing to two months as per the above) to only being for special circumstances, such as national security or a national emergency.

When considering the changes (A) to (D) above, these mirror the provisions within the Planning Act that already exist for “material amendment” to DCOs – so there is an existing legislative precedent for this accelerated procedure.

Overall, this will mean that infrastructure projects, or housing developments of more than 1,000 homes, can be delivered with a high degree of certainty of success, within 12 months of the plan being submitted.”

So the idea of residential-led NSIPs for schemes of 1,000 homes or more. I’m really not sure that such centralisation of decision making in relation to so many projects is remotely practical, let alone desirable (whether for promoters, local authorities or communities.

There is a great critique of the proposal in Lichfields’ blog post Following Orders: five actions necessary for DCOs and the NSIP regime to be used for large-scale housing (Matthew Spry and Nicki Mableson, 7 July 2020). Matthew and Nicki don’t leap to conclusions but examine:

⁃ What’s the problem for large scale housing projects?

⁃ How could DCOs help and what are the barriers?

⁃ What is needed to make a housing DCO regime effective?

They conclude that the potential is there, probably for schemes of more than 5,000 homes, but identify that action would be needed in at least five key areas, including the way that “need” and “location” are to be identified.

The post was published the same day as I was chairing a webinar discussion on exactly the same set of issues (panellists John Rhodes OBE (director, Quod), Bridget Rosewell CBE (Commissioner, National Infrastructure Commission), Gordon Adams (Battersea Power Station), Kathryn Ventham (partner, Barton Willmore) and Michael Humphries QC (Francis Taylor Building)). If you would like a link to a recording of the session please let me know.

Later in the week, a further much more detailed research document was published: Can development consent orders help meet the challenges of our time? by Barton Willmore, Womble Bond Dickinson, the Copper Consultancy. I recommend the document. It is written by people with practical experience of the subject and is based on solid survey work. It is everything that a think tank report is not.

Its recommendations:

“We also think that there are benefits to be gained from applying DCO principles to existing planning mechanisms as well as developing a DCO option for delivery of new settlements.

We therefore believe the Government and industry should look to explore the extension of the DCO process for new settlements and other complex developments by preparing a National Settlements Strategy (NSS) that:

• Identifies broad parts of the country suitable for new settlements/largescale developments (developed under DCO (and NPS) engagement principles with input from Local Authorities and devolved administrations);

• Enables different consenting and delivery models to be applied;

• Incorporates the DCO as a consenting model;

• Is drafted to provide the national needs case that gives certainty, to unlock significant financial investment from the UK and internationally; and,

• Is equivalent to the National Policy Statements.”

They conclude:

“In preparing a National Settlement Strategy we need to acknowledge up front that there will be some challenging issues, not least around managing engagement and Strategic Environmental Assessments. Equally, a DCO option for new settlements may look very different to a DCO for more established infrastructure projects. Therefore, we would welcome your views on some or all of the following questions, along with any wider reflections you have on this research:

1. How can a national settlements strategy be prepared in a way that engages regions and local communities alongside national infrastructure providers to create long term stability?

2. Which planning processes can benefit from applying the certainty principles established by the DCO process and how?

3. What could a DCO option for delivering new settlements look like in practice?

We will take these responses forward, along with our own thinking, into a second phase of work on how to make our recommendations a practical reality.”

Now that’s what I call a planning policy paper! We may see later this month whether these ideas are at all taking root.

Simon Ricketts, 11 July 2020

Personal views, et cetera

PS I got quite nostalgic thinking about failings of the eco-towns programme, having acted for the Bard Campaign in Bard Campaign v Secretary of State (Walker J, 25 February 2009). What a counsel team we had – Ian Dove QC (now Dove J), Chris Young (now QC) and Richard Harwood (now QC). This was a challenge to the Government’s April 2008 “consultation” document, “Eco-towns – Living a Greener Future”.

We basically challenged everything about it. Our case was that:

“In breach of the common law relating to consultation, the SEA Directive, the Aarhus Convention and the Code of Practice on Consultation, the Secretary of State has failed:
1. to consult on the principle of constructing eco-towns, alternatively any such consultation has to give sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response;

2. to consult on the key locational criteria for eco-towns;

3. to consult at all on the 42 locations proposed which were rejected by ministers in favour of the 15 proposed locations;

4. to provide adequate information to enable informed representations to be made. Instead, information has been produced late, has dribbled out in response to requests and some relevant (and non-confidential) material is still being withheld from the public;

5. to provide adequate time for consultation, given the late production of material.

Additionally,
6. a declaration is sought (because this still appears to be in issue) that the Eco-Towns policies are subject to the requirements of the Strategic Environmental Assessment Directive and Regulations.”

We lost on all grounds and Keene LJ refused us permission to appeal to the Court of Appeal. But the programme was abandoned in the run up to the 2010 general election. It’s often not the law that gets in the way – it’s politics.

To-morrow never dies

Stay Alert! A Quick Guide To All Those MHCLG Announcements

On 13 May 2020, MHCLG published:

Guidance: coronavirus planning update

Guidance: Coronavirus compulsory purchase

Guidance: Coronavirus community infrastructure levy

Guidance: construction site working hours Q&A

Guidance: consultation and pre-decision matters

Guidance: plan-making

Guidance: neighbourhood planning

On the same day, the Planning Inspectorate updated its guidance on site visits, hearings, inquiries and events.

On 14 May 2020, the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 were made and came into force that day. The Regulations were accompanied by an Explanatory Memorandum.

The highlights

Validation and determination of applications for planning permission

No changes have been made to the timescales for determining planning applications. Developers are however encouraged to agree extensions of the period for determination. Local authorities have been urged to give priority to validating urgent COVID-19 related applications for planning permission and associated consents.

Publicising applications for planning permission

Temporary regulations (expiring on 31 December 2020) were made and came into force on 14 May to supplement existing publicity arrangements for planning applications, listed building consent applications and environmental statements for EIA development. There is now flexibility to take other reasonable steps to publicise applications and environmental statements if the usual specific requirements cannot be discharged relating to site notices, neighbour notifications, newspaper publicity or availability of hard copy documents. Steps can include the use of social media and electronic communications and they must be “proportionate to the scale and nature of the development”. Guidance has also been issued on this topic.

Planning Conditions

MHCLG has made it clear that planning conditions should not be a barrier to allowing developers and site operators flexibility around construction site working hours to facilitate safe working. Where only short term or modest increases in working hours are required, LPAs are encouraged to use their discretion to not enforce against a breach of working hours conditions. Where longer term measures or other significant changes are required, applications to amend conditions should be made, which LPAs should prioritise and turn around in 10 days. Requests to work up to 9 pm Monday to Saturday should not be refused without very compelling reasons.

Community infrastructure levy

The existing CIL regulations of course allow charging authorities limited flexibility to defer CIL liability. Amendments will be made to the regulations “in due course” to increase flexibility, but that will still depend upon charging authorities deciding to exercise the new discretion available to them. Authorities will be able to defer payments, temporarily disapply late payment interest and provide a discretion to return interest already charged. However, these changes will only apply to small and medium-sized developers with an annual turnover of less than £45 million. It remains to be seen how this limitation will be addressed in the regulations, for example where a special purpose vehicle, potentially offshore, has assumed liability. The new instalment policies for deferred payments will only apply to chargeable development starting after the changes come into effect, but they are anticipated to apply to “phases“ of the development starting after that date. The announcement on 13 May added that “existing flexibilities and the government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate, they will not be charged extra for matters that were outside of their control.”

Section 106 planning obligations

Local planning authorities are encouraged to consider the deferral of section 106 obligations, e.g. financial payments. This will require variations to existing section agreements and undertakings. Local planning authorities are encouraged generally to take a “pragmatic and proportionate” approach to the enforcement of section 106 planning obligations

Virtual Committees

These are already enabled, by way of Regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020. MHCLG is working with the Planning Advisory Service (PAS) to provide further practical advice on the way these meetings are managed.

Planning Appeals

PINS issued a further update on 13 May. Site visits are being commenced and PINS is considering whether there are types of cases that can proceed without a site visit. The first digital appeal hearing took place on 11 May as a pilot and PINS is aiming for 20 further examinations, hearings and inquiries in May and June. It is also exploring hybrid options – a mix of in person and by video public/telephone hearings and is considering “social distance” events.

Local Plans

MHCLG is working on ways to address the local plans process in order to meet aspirations to have all local plans in place by 2023. In particular, the use of virtual hearings and written submissions is being considered.

Neighbourhood Plans

Regulation 12 of the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 prevents any neighbourhood planning referendum from taking place until 6 May 2021. Updated guidance was issued in April allowing neighbourhood plans awaiting referendums to be given significant weight in decision making.

Nationally Significant Infrastructure Projects

The government is working with consenting departments to support the continuation of decision-making to minimise the impact of current restrictions on the consideration of DCO applications and the Planning Inspectorate has updated its guidance.

Compulsory purchase orders

There is now pragmatic advice as to the service of documents. Acquiring authorities are encouraged to allow more time for responses to requests for information about interests in land or submitting objections to CPO. There is also encouragement to authorities to act responsibly regarding business and residential claimants, particularly regarding the timing of vesting orders and payment of compensation, which is particularly relevant when considering evictions. Authorities are reminded of their obligation to make advance payments of compensation in accordance with statutory time limits given cash flow difficulties which claimants may currently face.

Concluding remarks

To my mind, this is all welcome and congratulations are due in particular to the relevant civil servants. Of course, there is more to be resolved, for instance the vexed question of extending time limited planning permissions (see my 4 April 2020 blog post Pause Not Delete: Extending Planning Permissions) as well as the Regulations in relation to CIL, but it is good to see this progress. No wonder MHCLG’s Simon Gallagher was prepared to come on this week’s Have We Got Planning News For You!

Whether by serendipity or, now I think about it, of course, good planning, the RTPI published on 15 May 2020 its research paper Pragmatic and prepared for the Recovery: The planning profession’s rapid response to Covid-19. This last week has been a good start.

Simon Ricketts, 16 May 2020

Personal views, et cetera

(Thank you to Town’s Michael Gallimore and Lida Nguyen for allowing me to draw from a client note prepared earlier this week).

We Need Some Flex On CIL

Miles Gibson rightly spotted, in his good CBRE piece Community Infrastructure Levy – ten years old, but COVID-19 is its biggest test (7 April 2020), that the Community Infrastructure Levy Regulations came into force just over ten years ago, on 6 April 2010. (And who better to point it out, given that until 2011 Miles led on CIL at the Department of Communities and Local Government?).

Of course, after the regulations were brought into force, there was then a pause caused by the 6 May 2010 general election. Would the incoming coalition government scrap, or at least amend and rebadge, the system? In the end the system survived and, according to wikipedia at least, the London Borough of Redbridge was the first to adopt a CIL charging schedule, on 1 January 2012.

So CIL didn’t live through the global financial crisis, or previous recessions, as we have done. I have written before about the inherent inflexibility of the mechanism but, as Miles acknowledges in his piece, the current economic conditions are going to prove the big test for the levy.

He says “CIL’s inflexibility could prove its downfall if the forthcoming downturn is anything other than a short sharp shock. COVID-19 has created the biggest test which CIL has yet faced. If the downturn is lengthy, local authorities may need to hurriedly cut CIL rates to help return development to viability. Or, press the pause button on introducing CIL altogether.”

This may all be so, but there are also other, more nuanced steps which charging authorities could also be taking, with the encouragement of MHCLG, one would hope. For instance:

⁃ The switching on, within charging authorities, of the ability to apply for exceptional circumstances relief – and if there isn’t sufficient movement on this I would argue for its automatic national application by way of a change to the regulations. Whilst ECR is a cumbersome process, and there are state aid considerations to be borne in mind, if these aren’t “exceptional circumstances” what are? And I suspect that the application of ECR will be more palatable than the reintroduction of section 106BA, which enabled developers to reduce or remove section 106 affordable housing obligations on the grounds of viability.

⁃ The introduction of instalment schemes for payment (currently discretionary) and the review of existing instalment schemes to push back timescales.

I was interested to see, via an update by Ashfords (Covid-19: Mitigating the impact of Community Infrastructure Levy (“CIL”) on stalled developments, 7 April 2020) East Suffolk Council’s pragmatic response to current developer cashflow problems, basically stepping outside the procedural tramlines of the Regulations. In its statement, Coronavirus: Actions for CIL, it sets out a series of commitments, including these:

Where development has already commenced, CIL demand notices will shortly be re-issued to allow for a 3 month extension to the next instalment due date and to subsequent outstanding instalments. This position will be reviewed towards the end of June and any further extension to instalment payment periods will be communicated. It will take time for notices to be prepared and issued, but this work will be prioritised.

An individual, case by case review of late payment interest and surcharges will be made and a pragmatic approach adopted to support customers in these circumstances.

CIL debt recovery will largely be paused for 3 months and will be reviewed towards the end of June 2020 with a view to extending this position if required.

Are there any examples of other charging authorities taking an equivalent stance? Clearly there are risks in such an approach and I would be cautious as to the extent that, for example, a funder with millions of pounds at stake, could rely on such a commitment. It is unfortunate that the Regulations are so inflexible as to lead to such sticking-plaster solutions.

Stepping back, unless authorities are now going to move very quickly to propose reduced charging rates and take positive steps in relation to instalment policies and ECR, wouldn’t a solution in current circumstances be for the Government to legislate so as to allow authorities, both in relation to existing permissions and permissions which have not yet been issued, either to (1) defer payment of CIL for a defined period or (2) allow an emergency discount of say 50% to be applied, conditional upon development being commenced within a defined period of time and then completed within a defined period (the period to be agreed with the authority having regard to its projected build programme and if the deadline is missed there would be clawback)? To reduce the extent that the authority is as a consequence unable to deliver essential infrastructure, the Government would need to make additional funding available, because after all the economic and social benefits of ensuring that development gets started again will be immense.

I don’t have the answers – I would welcome your much better ones (except “abolish CIL” – let’s be practical). However, I do know that (1) CIL is a massive, inflexible, cash drain for any development early in its implementation and (2) some additional flexibility would surely reduce the risk that many development projects will remain on hold even once normal life starts to return around us all.

Simon Ricketts, 10 April 2020

Personal views, et cetera

What Are The Non-Airport Implications Of The Heathrow Ruling?

The Court of Appeal’s approach to the issues in the Heathrow cases last month was certainly a surprise to many.

The court found in the main “Plan B” ruling (27 February 2020) that the Secretary of State had acted unlawfully when, following the procedure in section 5 of the Planning Act 2008, on 26 June 2018 he designated the Airports National Policy Statement. The court’s basis for its finding was that the Secretary of State had not complied with section 5(8):

(7) A national policy statement must give reasons for the policy set out in the statement.

(8) The reasons must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.”

The question was what was “Government policy” in relation to climate change as at 26 June 2018. The court found that the Secretary of State had acted unlawfully in not taking into account “its own firm policy commitments on climate change under the Paris Agreement”.

This is somewhat surprising given that at first instance the Divisional Court (Hickinbottom LJ and Holgate J, no slouches) had found that this submission was unarguable:

In our view, given the statutory scheme in the [Climate Change Act 2008] and the work that was being done on if and how to amend the domestic law to take into account the Paris Agreement, the Secretary of State did not arguably act unlawfully in not taking into account that Agreement when preferring the NWR Scheme and in designating the ANPS as he did. As we have described, if scientific circumstances change, it is open to him to review the ANPS; and, in any event, at the DCO stage this issue will be re-visited on the basis of the then up to date scientific position.” (paragraph 648 of the main judgment at first instance, known as “Spurrier” after the then first claimant, who had represented himself at first instance but had dropped out by the time of the appeal, which is why you will hear the appeal ruling called “Plan B” after the lead appellant, campaign group Plan B Earth).

(For a wider summary of the proceedings at first instance see my 4 May 2019 blog post Lessons From The Heathrow Cases).

The Court of Appeal has ordered that the Airports National Policy Statement “is of no legal effect unless and until the Secretary of State has undertaken a review of it in accordance with the relevant provisions of the Planning Act 2008.”

Heathrow Airport Limited has applied to the Supreme Court to appeal from the ruling although the Secretary of State has not (meaning that any appeal could be fairly irrelevant if the Secretary of State decides to review the NPS in any event). Whether permission to appeal is granted depends on whether the Supreme Court considers that there is an arguable point of law of general public importance.

So this is all significant as regards the proposal for a third runway at Heathrow. According to the Planning Inspectorate website the application for a development consent order under the Planning Act 2008 NSIP procedure is/was expected to be submitted in Q4 2020.

The main function of the NPS was to give formal national policy support to the proposal at Heathrow. The way that the Planning Act 2008 works is that, under section 104, the Secretary of State must decide a DCO application in accordance with any relevant national policy statement “except to the extent that one or more of subsections (4) to (8) applies.

(4) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the United Kingdom being in breach of any of its international obligations.

(5) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the Secretary of State being in breach of any duty imposed on the Secretary of State by or under any enactment.

(6) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would be unlawful by virtue of any enactment.

(7) This subsection applies if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits.

(8) This subsection applies if the Secretary of State is satisfied that any condition prescribed for deciding an application otherwise than in accordance with a national policy statement is met.

(9) For the avoidance of doubt, the fact that any relevant national policy statement identifies a location as suitable (or potentially suitable) for a particular description of development does not prevent one or more of subsections (4) to (8) from applying.

So the first thing to note is that the NPS would not have given Heathrow Airport Limited a free pass to a consent – in determining the application the Secretary of State would need to determine whether, notwithstanding the June 2018 NPS, the proposal is not in accordance with, for instance, up to date treaty obligations or domestic legislation – exactly the point made by the Divisional Court in the passage I quoted earlier.

This is relevant because the issue in the Heathrow cases very much turned on an historical question – what was the Government’s climate change policy as at 26 June 2018. Legislation and policy has plainly moved on since then, and will continue to move on. I referred in my 10 August 2019 blog post The Big CC to Theresa May’s tightening in June 2019 of the Government’s commitment to reduce greenhouse gas emissions, by making the Climate Change Act 2008 (2050 Target Amendment) Order 2019 which changed the duty of the Secretary of State under the Climate Change Act 2008 from being to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline, to being at least 100% lower, ie net zero. The target does not include international aviation or shipping: paragraph 10.5 of the explanatory notes published with the order states that there is a “need for further analysis and international engagement through the international networks. For now, therefore we will continue to leave headroom for emissions from international aviation and shipping in carbon budgets…” By the time that any Heathrow DCO application is to be/would have been determined, the Secretary of State would have to take into account climate change legislation and international commitments at the time.

It can all of course get messy/political, as demonstrated by former Energy Secretary Andrea Leadsom’s approval last year, against her inspectors’ recommendations, of the Drax gas-fired power stations DCO, a decision which is now being challenged in the High Court by ClientEarth (see Drax legal case: We’re taking the UK government to court over Europe’s largest gas plant, ClientEarth, 30 January 2020).

Although it would be a risky strategy to adopt, given it would entail acknowledging loss of any formal statutory policy support for Heathrow as the favoured option, Heathrow Airport could in theory decide to proceed with a DCO application without the support of an NPS (this appears to be Gatwick’s strategy with its proposed northern runway). In the absence of an NPS, section 105 applies:

(2) In deciding the application the Secretary of State must have regard to—

(a) any local impact report (within the meaning given by section 60(3)) submitted to the Secretary of State before the deadline specified in a notice under section 60(2),

(b) any matters prescribed in relation to development of the description to which the application relates, and

(c) any other matters which the Secretary of State thinks are both important and relevant to the Secretary of State’s decision.”

How even to begin to scope the appropriate approach to decision-making in that situation…

Any wider relevance?

So does this ruling have repercussions away from Heathrow and airports?

People threaten to bring judicial review proceedings, and often end up bringing them for all sorts of reasons. Lord Reed, President of the Supreme Court, made some topical comments to the House of Lords Constitution Committee last week:

Judges are very well aware of the risk of challenges being brought in what are political rather than legal grounds. They are repelling them and are careful to avoid straying into what are genuine political matters. When this is a matter that is to be considered it should not start from the premise that judges are eager to pronounce on political issues. The true position is actually quite the opposite.” (Law Society Gazette, 4 March 2020).

Since the ruling we have seen these stories:

Environmentalists follow Heathrow ruling by calling on government to end fossil fuel developments (Ecotricity, 4 March 2020) (The Secretary of State has a discretion in section 6 of the 2008 Act as to whether and when to review NPSs, and indeed since June 2019 Government climate change targets have been clear regardless of what the position was at June 2018 – which is surely the only relevance of the Heathrow rulings – if the point made by the prospective claimants is a good one, it has been a good one for some time now).

HS2 legal challenge launched by Chris Packham (Guardian, 3 March 2020) (There is surely no duty on a minister to take into account Government climate change targets in making a decision to continue with the construction of an existing project which has already, phase 1 at least, been authorised by Parliament).

What did it for the Secretary of State in relation to the Heathrow NPS was the specific statutory duty to take into account “government policy” on climate change mitigation and adaptation.

Regardless of whether the Court of Appeal was right to determine that Government support for the Paris Agreement (international) targets could be construed as government policy for any particular domestic targets, there is not the same statutory duty when it comes to the Town and Country Planning Act system.

When it comes to plan-making, section 19(1A) of the Planning and Compulsory Purchase Act 2004 imposes a statutory duty on local planning authorities that development plan documents must include policies that contribute to mitigation and adaptation to climate change, and this duty is reflected in paragraph 149 of the National Planning Policy Framework, stating in footnote 48 that policies should be “in line with the objectives and provisions of the Climate Change Act 2008”.

There are no specific equivalent requirements in relation to decision making, just the general statement in paragraph 148, stating that the “planning system should support the transition to a low carbon future in a changing climate” and “should help to: shape places in ways that contribute to radical reductions in greenhouse emissions”.

Beware those who wave about the Heathrow ruling as some kind of game changer in relation to the battle against climate change. It is certainly a game changer in relation to Heathrow Airport’s aspirations, as to project timescale at the very least, but, wider than that? The Court of Appeal determined that a specific statutory duty, peculiar to the making of NPSs, was breached. The question of whether there was a breach depended on determining what government policy on climate change was in June 2018, when it was not as advanced as it is now. Finally, it is not obvious to me that the Court of Appeal’s conclusions would be safe against an appeal to the Supreme Court – but of course all that could well be largely hypothetical, depending upon what steps the Government now takes.

The awaited national infrastructure plan, which was to be published alongside the budget on 11 March, is to be delayed but reportedly could still be “before May” (Government delays Budget infrastructure plan, BBC, 5 March 2020). It will be interesting to see whether any hints are dropped in our new Chancellor’s budget statement as to the Government’s direction of travel.

Simon Ricketts, 7 March 2020

Personal views, et cetera

Stansted Airport

This blog post covers yesterday’s High Court ruling in Ross & Sanders (obo Stop Stansted Expansion) v Secretary of State for Transport (Dove J, 7 February 2020), where the issue before the court was whether an application for planning permission for development at Stansted Airport, made to the local planning authority, Uttlesford District Council, by the airport under the Town and Country Planning Act 1990, should instead have been pursued as a Nationally Significant Infrastructure Project (NSIP), to be determined by the Secretary of State for Transport. I also set out the timeline as to the council’s decision-making in relation to the planning application. I have limited what I say to a factual account, given that my firm is acting for the airport (alongside Tom Hill QC and Philippa Jackson from 39 Essex chambers).

The airport is subject to a cap of 35 million passengers per annum (mppa) and a cap of 274,000 air traffic movements (ATMs) per annum. On 22 February 2018 the airport submitted an application for planning permission which involved “building two new taxiway links, being a rapid entry taxiway and a rapid exit taxiway, and nine additional aircraft stands. These new developments are planned to take place in four separate locations within the existing footprint of Stansted Airport. It is uncontentious that these developments would increase the use of Stansted Airport’s single runway and its potential to handle aircraft movements. The planning application also includes a request for the planning cap of 35 million passengers per annum (“mppa”) to be increased to 43 mppa.” It was not proposed to increase the ATMs cap.

The relevant part of section 23 of the Planning Act 2008 provides that airport-related development is to be treated as an NSIP in the case of any “alteration” to an airport the effect of which is “to increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services”.

Section 23(6) provides that “”alterationin relation to an airport, includes the construction, extension or alteration of:


(a) a runway at the airport,

(b) a building at the airport, or

(c) a radar or radio mast, antenna or other apparatus at the airport.”

The Secretary of State for Transport determined on 28 June 2018 that the 10 mppa threshold would not be exceeded and that he would not exercise his discretionary power under section 35 of the Act to treat the proposals as nationally significant and therefore subject to the 2008 Act decision-taking process and a decision at a national level. The latter determination was taken against the background of the Secretary of State’s publication on 5 June 2018 of the government’s “”Airports National Policy Statement: new runway capacity and infrastructure at airports in south-east of England” (NPS) together with the policy “Beyond the horizon: The future of UK aviation-Making best use of existing runways” (“MBU”).The MBU policy paper stated that the government would be using its Aviation Strategy to progress its wider policy towards tackling aviation carbon. “”[T]o ensure that our policy is compatible with the UK’s climate change commitments we have used the DfT aviation model to look at the impact of allowing all airports to make best use of their existing runway capacity.” The paper stated:

Airports that wish to increase either the passenger or air traffic movement caps to allow them to make best use of their existing runways will need to submit applications to the relevant planning authority. We expect that applications to increase existing planning caps by fewer than 10 million passengers per annum (mppa) can be taken forward through local planning authorities under the Town and Country Planning Act 1990. As part of any planning application airports will need to demonstrate how they will mitigate against local environmental issues, taking account of relevant national policies, including any new environmental policies emerging from the Aviation Strategy. This policy statement does not prejudice the decision of those authorities who will be required to give proper consideration to such applications. It instead leaves it up to local, rather than national government, to consider each case on its merits.”

Stop Stansted Expansion challenged the Secretary of State’s 28 June 2018 determination on two grounds: that the airport’s proposals would in fact lead to the 10 mppa cap being exceeded and that the Secretary of State should have used his discretionary power to treat the proposals as an NSIP, the claimant relying, amongst other things on a “suggestion that the application was in truth part of a wider project for expansion of passenger throughput in excess of the NSIP definition, and the ramifications of increased carbon emissions as a result of increased air travel which ought to have led to the conclusion that the development should be treated as an NSIP.”

On the first ground, the court accepted that the proposed works amounted to an “alteration” of an airport (the argument was as to whether the definition was for the purposes of these proposals limited to alterations to a runway but Dove J accepted a wider definition, given the word “includes” in sub-section (6)). However, the court found that the Secretary of State was correct to conclude that the 10 mppa threshold would not be breached:

I am satisfied that the submissions of the Defendant in this respect are undoubtedly correct. The language of the statute in relation to whether the alteration will “increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services” requires the Defendant to form a judgment in relation to that question. In my view that judgment is to be formed by asking what increase in capacity could realistically be achieved, not what might technically or arithmetically be possible. It requires an analysis based on how the infrastructure is likely to perform, not a hypothetical approach assuming speculative figures in relation to each aspect of the calculation of capacity to show what might be possible rather than what is likely to occur in practice.”

On the second ground, the court noted that from the statutory language of section 35 of the 2008 Act “the Defendant is granted a broad discretion as to whether or not to treat an application for development which does not otherwise meet the definitions for an NSIP as a project which requires development consent on the basis of national significance. Bearing in mind the prescriptive nature of the definitions for various types of NSIP contained in the 2008 Act, the discretion under section 35 is a broad one. Given the nature of the Defendant’s decision, as one which was exercised using a relatively broad discretion, the task of the Claimants to show that the judgment which the Defendant reached was unlawful is daunting.

The court concluded that similarly ground 2 was not made out. One of the claimant’s submissions was that the MBU carbon emissions modelling was flawed and had “underestimated the effects of growth in aircraft traffic at Stansted airport”. The judge accepted the Secretary of State’s submission that in “reality this aspect of the Defendant’s decision was essentially based on reliance on the MBU policy, and that the substance of the Claimants’ case is in fact a challenge to the legality of that policy in disguise (see paragraphs 95 and 96 above). Certainly, the legality of that policy is now beyond argument. As such I accept that the Defendant was, lawfully, entitled to reach the conclusion which he did, based squarely on the MBU policy that “an increase in the planning cap at [Stansted]…could be adequately mitigated to meet the CCC’s 2050 planning assumption”. That was a conclusion which applied the provisions of the MBU policy (see paragraphs 38 to 40 above) which had considered that proposals of this scale would not imperil the achievement of climate change targets in the light of the modelling work which had informed the policy.”

The Defendant has provided in the evidence a clear and coherent explanation of the purpose of the modelling (namely for long-term forecasting at a national level) and the basis on which it was constructed so as to inform and justify the policy in MBU relating to whether planning proposals at airports could be adequately mitigated and dealt with at the local level. Once this background to the technical work is understood, then it becomes clear that the criticisms of the Claimants, based upon short-term analysis or examination of individual years is without substance.”

Accordingly, the airport had been correct to pursue the proposals by way of an application for planning permission to the local planning authority, and the Secretary of State had not acted unlawfully in declining to intervene by way of directing that the proposals should proceed as an NSIP.

So was the local planning authority, Uttlesford District Council, now free to determine the application? Well this would have been the case if it had not resolved, against officers’ recommendations, to refuse planning permission on 24 January 2020, the decision notice then having been issued on 29 January 2020.

It has been a twisting route, summarised in the report prepared for Extraordinary Planning Committee meetings that were held on on 17 and 24 January 2020 (the passages in quotation marks below), with additional factual insertions by me:

The claimant made requests on 19 April and 14 June 2018 to the Secretary of State for Housing, Communities and Local Government for the application to be called in. He responded that the Secretary of State for Transport should first determine whether the application should be treated as an NSIP.

The Secretary of State determined on 28 June 2018 that the application was not to be treated as an NSIP. Stop Stansted Expansion issued judicial review proceedings in relation to that decision (those proceedings eventually being dismissed on 7 February 2020 as described above).

On 14 November 2018, the Planning Committee resolved to grant the application, subject to conditions and subject to completion of an agreement imposing legally binding planning obligations (“section 106 agreement”). The Report and Supplementary Reports identified the planning obligations required. The precise form that the section 106 agreement should take, in accordance with the amended recommendation, was resolved to be delegated to officers. Subsequently, a proposed S106 Agreement was drawn up between the Council, Essex County Council (as relevant highway authority) and Stansted Airport Ltd.”

On 20 March 2019 the Secretary of State for Housing, Communities and Local Government decided not to call in the application. Stop Stansted Expansion issued judicial review proceedings in relation to that decision (Legal bid lodged after Government rejects ‘call in’ of Stansted Airport planning application, Saffron Walden Reporter, 28 March 2019). Those proceedings were subsequently withdrawn.

The purdah period commenced ahead of local government elections on 2 May 2019.

5. An Extraordinary Meeting of the Council was called for 25 April 2019 to consider the following motion:

“To instruct the Chief Executive and fellow officers not to issue a Planning Decision Notice for planning application UTT/18/0460/FUL until the related Section 106 Legal Agreement between UDC and Stansted Airport Limited and the Planning Conditions have been scrutinised, reviewed and approved by the Council’s Planning Committee after the local elections.

The motion was defeated by 14 votes to 18 votes.

6. A further Extraordinary Meeting was called to consider the following motion:

To instruct the Chief Executive and fellow officers not to issue the Planning Decision Notice for planning application UTT/18/0460/FUL until members have had an opportunity to review and obtain independent legal corroboration that the legal advice provided to officers, including the QC opinion referred to by the Leader of the Council on 9th April 2019, confirms that the proposed Section 106 Agreement with Stansted Airport Limited fully complies with the Resolution approved by the Planning Committee on 14 November 2018 such that officers are lawfully empowered to conclude and seal the Agreement without further reference to the Planning Committee.

The meeting was originally scheduled for 3 June but was deferred until 28 June to allow further time for consideration of legal advice.

7. An informal meeting was held on 30 April with members who had requisitioned the Extraordinary Meeting. It was agreed:

⁃ that officers would not complete the section 106 agreement and issue the

planning consent for the time being;

⁃ That the legal advice previously obtained from Christiaan Zwart, barrister,

would be circulated to all members;

⁃ That a briefing session would be held for all members, with Christiaan Zwart in attendance to answer questions about his advice;

⁃ That, if need be, further advice would be sought at Q.C. level and a further briefing for all councillors would be held. This advice would focus on whether the planning obligation requirements made by the Planning Committee have been incorporated fully and effectively into the s106 agreement, and on the origin and consequences of any “gaps” if any between the Planning Committee Resolution and the resulting S106 Agreement.”

At the local government elections on 2 May 2019, the council came under the control of Residents 4 Uttlesford by a substantial majority.

8. A briefing meeting for all councillors was called for 14 May. Advice obtained from the Council’s barrister, Christiaan Zwart, was circulated prior to the meeting. He spoke to his advice on 14 May and answered questions.

9. Further advice was then obtained from Stephen Hockman Q.C. working jointly with Christiaan Zwart. Their joint advice was sent to members prior to a second briefing meeting held on 21 May. They answered questions raised by members at that briefing. Issues raised at the briefing meeting by members, and by Stop Stansted Expansion separately, led to additional further advice from Stephen Hockman, Q.C. and Christiaan Zwart. This also was shared with all members of the Council. In all cases information was shared on a legally privileged and confidential basis.

10. At the Extraordinary Meeting of Full Council on 28 June officers were instructed not to issue a Planning Decision Notice for planning application UTT/18/0460/FUL until the Planning Committee had considered:

(i) the adequacy of the proposed Section 106 Agreement between UDC and Stansted Airport Ltd, having regard to the Heads of Terms contained in the resolution approved by the Council’s Planning Committee on 14th November 2018;

(ii) any new material considerations and/or changes in circumstances since 14 November 2018 to which weight may now be given in striking the planning balance or which would reasonably justify attaching a different weight to relevant factors previously considered.

11. Since that meeting further expert legal advice has been obtained from Philip Coppel QC at the request of Members, and officers have been supporting members of the Planning Committee in preparing to consider the two matters set out above through a series of workshop sessions, in part owing to the significant change in membership of the committee. These sessions have taken members through the content of the draft obligations and issues that might be raised as potential new material considerations and regarded as a material change in circumstances since 14 November. They have provided opportunities for councillors and officers to ensure the obligations and issues are fully understood.

12. This report seeks to set out the issues comprehensively, to enable the Committee to comply with the Council resolution and authorise the release of the appropriate decision notice on the planning application.”

Officers recommended the following:

The Assistant Director – Planning be authorised to issue the decision notice approving the planning application subject to the planning conditions as resolved by the Planning Committee on 14 November 2018 on signing of the amended S106 Agreement appended to this report.”

The Committee sat on 17 and 24 January 2020. Members rejected the officers’ recommendation (ten members voting to reject it, with two abstentions).

The reasons for refusal set out on the decision notice are as follows:

1 The applicant has failed to demonstrate that the additional flights would not result in an increased detrimental effect from aircraft noise, contrary to Uttlesford Local Plan Policy ENV11 and the NPPF.

2 The application has failed to demonstrate that the additional flights would not result in a detrimental effect on air quality, specifically but not exclusively PM2.5 and ultrafine particulates contrary to Uttlesford Local Plan Policy ENV13 and paragraph 181 of the NPPF.

3 The additional emissions from increased international flights are incompatible with the Committee on Climate Change’s recommendation that emissions from all UK departing flights should be at or below 2005 levels in 2050. This is against the backdrop of the amendment to the Climate Change Act 2008 (2050 Target Amendment) to reduce the net UK carbon account for the year 2050 to net zero from the 1990 baseline. This is therefore contrary to the general accepted perceptions and understandings of the importance of climate change and the time within which it must be addressed. Therefore, it would be inappropriate to approve the application at a time whereby the Government has been unable to resolve its policy on international aviation climate emissions.

4 The application fails to provide the necessary infrastructure to support the application, or the necessary mitigation to address the detrimental impact of the proposal contrary to Uttlesford Local Plan Policies GEN6, GEN1, GEN7, ENV7, ENV11 and ENV13.

If you are interested in the debate that led to these conclusions, you are out of luck: No webcast or sound recording of the 24 January session is apparently available. There is an apology on the council’s website:

Unfortunately the broadcasting of today’s meeting failed. Officers worked throughout the day, in liaison with the supplier, to identify and rectify the problem without success.

It has now been established that the back-up local recording of the meeting also failed, meaning an audio recording of the meeting will not be available on the council’s website.

We sincerely apologise to those who had wanted to ‘listen in’ or ‘listen again’ to the meeting.”

From lack of sound to lack of soundness…

The inspectors examining Uttlesford’s local plan concluded in their 10 January 2020 post stage 1 hearings letter as follows:

Unfortunately, despite the additional evidence that has been submitted during the examination and all that we have now read and heard in the examination, including the suggested main modifications to the plan (ED41) put forward by the Council, we have significant concerns in relation to the soundness of the plan. In particular, we are not persuaded that there is sufficient evidence to demonstrate that the Garden Communities, and thus the overall spatial strategy, have been justified. We therefore cannot conclude that these fundamental aspects of the plan are sound.”

But that, friends, is for another blog post.

Simon Ricketts, 8 February 2020

Personal views, et cetera

Blue Christmas

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

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

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

Housing (pages 48 to 50):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Building Safety Bill (pages 51 to 53):

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

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

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

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

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

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

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

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

Fire Safety Bill (pages 54 to 55):

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

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

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

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

National Infrastructure Strategy (pages 90 to 91):

My government will prioritise investment in infrastructure…”

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

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

The Strategy will have two key aims:

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

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

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

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

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

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

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

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

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

o Northern Powerhouse Rail;

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

Beeching cuts in the 1960s; and,

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

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

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

English Devolution (pages 109 to 110):

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

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

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

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

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

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

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

Business rates (page 111):

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

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

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

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

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

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

Environment Bill (pages 112 to 114):

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

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

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

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

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

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

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

Climate change (pages 115 to 118):

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

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

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

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

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

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

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

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

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

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

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

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

Constitution and democracy (pages 126 to 127):

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

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

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

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

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

Simon Ricketts, 21 December 2019

Personal views, et cetera

Money Money Money: Accounting For CIL

This tweet from MHCLG has been nagging away at me for a few days:

The announcement of course was in relation to the 1 September 2019 commencement date in the Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019 and the Government’s updated planning practice guidance in relation to CIL , planning obligations and viability.

I covered the background to the changes in my 8 June 2019 blog post The Bottom Line: Updates On CIL And Viability.

There was quite a splash on 1 September, with a MHCLG press statement Communities to see how housing developers cash benefits them thanks to new planning rules (1 September 2019) and media briefings by planning minister Esther McVey, duly reported in the professional press eg Councils forced to spell out details of CIL deals (Housing Today, 2 September 2019):

McVey said builders “spent a whopping £6bn towards local infrastructure in 2016/17” but councils had not been required to report on the total amount of funding they had received or how it was spent, “leaving residents in the dark”.

She went on: “The new rules … will allow residents to know how developers are contributing to the local community when they build new homes, whether that’s contributing to building a brand new school, roads, or a doctor’s surgery that the area needs.”

What has been nagging away at me in the tweet was the gif image: “Developers paid £6bn in contributions in 2016/2017…Community Infrastructure Levy”.

Huge if true.

But it’s not.

I have tracked the £6bn figure back to a research report The Incidence, Value and Delivery of Planning Obligations and Community Infrastructure Levy in England in 2016-17 by Dr Alex Lord, Dr Richard Dunning and Dr Bertie Dockerill (University of Liverpool), Dr Gemma Burgess (University of Cambridge), Dr Adrian Carro (University of Oxford) Professor Tony Crook and Professor Craig Watkins (University of Sheffield) and Professor Christine Whitehead (London School of Economics) published by MHCLG in March 2018.

From the executive summary:

There has been an increase in the aggregate value of planning obligations agreed and CIL levied since 2011/12, up 61% from £3.7bn to £6.0bn in 2016/17 (50% after adjusting for inflation).

So the £6bn is the total of the value of section 106 planning obligations agreed (not paid) and “CIL levied”. This is the table in the research document:

⁃ “The estimated value of planning obligations agreed and CIL levied in 2016/17 was £6.0 billion. This central 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 obligations in real terms is almost identical to the peak recorded in 2007/08 (£6.0 billion), but significantly higher than in 2011/12 (£3.9 billion). These changes coincide with changes in the number of dwellings granted planning permission over time.

⁃ 68% of the value of agreed developer obligations was for the provision of affordable housing, at £4.0 billion. 50,000 affordable housing dwellings were agreed in planning obligations in 2016/17.

⁃ The value of CIL levied by LPAs was £771 million in 2016/17, with a further £174 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 and London regions account for 58% of the total value.

⁃ Direct payment contributions continue to provide a large proportion of the total contribution value for non-affordable housing obligations

But I am pretty sure there is a confusion over “CIL levied” too. The table shows that of the £6bn, £771m was LPA CIL and £174m was Mayoral CIL. As with the money attributed to planning obligations, I suspect that these CIL figures represent the amount of CIL that is calculated to be payable if development eventually proceeds pursuant to permissions issued in 2016/2017. After all we can cross-check the £174m against the MCIL monies actually collected by the Mayor from the boroughs in 2016/2017 which this GLA table shows to be only £137m.

There is something else important. Over two thirds of the “whopping £6bn towards local infrastructure” that developers allegedly spent in 2016/2017 was not even towards “local infrastructure” as defined by the Government – it was towards affordable housing!

So it’s not that developers are not committing huge sums towards local infrastructure, and even greater sums towards affordable housing.

And it’s not that CIL will not over time secure increasing contributions towards the provision of local infrastructure.

It’s the inaccuracies and exaggeration. £6bn was not received by local authorities in 2016/2017 to be spent on local infrastructure. Local authorities did not even accrue the right to that amount in the future. The reality is that planning permissions were issued which, could, in due course , deliver (subject to the application of CIL exemptions and reliefs in the case of the £945m CIL component) up to around £2bn.

The minister accuses authorities of “leaving residents in the dark” as to funding received and spent. Greater transparency from MHCLG on the numbers it uses would be equally helpful.

Simon Ricketts, 7 September 2019

Personal views, et cetera

Another Green World: The South Coast Nitrate Crisis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“3.11  Immediate actions being progressed are as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Simon Ricketts, 29 June 2019

Personal views, et cetera