Will the Government’s proposed planning reforms help bring forward more logistics floorspace, for which there is an acknowledged and unmet need? We’ve been talking about the housing crisis (now apparently – wrongly – seen by Michael Gove as a “not enough home-owners” crisis) for so long now but what about the need for other land uses? Logistics (warehousing and distribution in old money) is a prime example. It has to be accommodated in the wider public interest – unless we are going to change radically our economy, life style expectations and the way in which we source much of our food and other products – but has locational constraints and the need is not necessarily “local”. How do we make sure that deliverable sites are allocated or can otherwise come forward?
Land-hungry as it can be, and sometimes competing for sites which might otherwise be released for residential development (meaning that clear policy guidance is particularly important), there are various reasons why more “big box” and “last mile” logistics space is needed. For instance:
⁃ the structural change in shopping patterns, with a huge move, accelerated by the pandemic, towards on-line retail.
⁃ the drive on the part of operators towards more efficient, better located and sustainable modern facilities – ideally rail-connected, certainly increasingly automated.
⁃ Post-B****t changes in delivery networks and the urgent need for more resilient supply chains, demonstrated by recent temporary product shortages
a) set out a clear economic vision and strategy which positively and proactively encourages sustainable economic growth, having regard to Local Industrial Strategies and other local policies for economic development and regeneration;
b) set criteria, or identify strategic sites, for local and inward investment to match the strategy and to meet anticipated needs over the plan period;
c) seek to address potential barriers to investment, such as inadequate infrastructure, services or housing, or a poor environment; and
d) be flexible enough to accommodate needs not anticipated in the plan, allow for new and flexible working practices (such as live-work accommodation), and to enable a rapid response to changes in economic circumstances.” (paragraph 82).
The Government’s planning practice guidance is more specific:
“How can authorities assess need and allocate space for logistics?
The logistics industry plays a critical role in enabling an efficient, sustainable and effective supply of goods for consumers and businesses, as well as contributing to local employment opportunities, and has distinct locational requirements that need to be considered in formulating planning policies (separately from those relating to general industrial land).
Strategic facilities serving national or regional markets are likely to require significant amounts of land, good access to strategic transport networks, sufficient power capacity and access to appropriately skilled local labour. Where a need for such facilities may exist, strategic policy-making authorities should collaborate with other authorities, infrastructure providers and other interests to identify the scale of need across the relevant market areas. This can be informed by:
• engagement with logistics developers and occupiers to understand the changing nature of requirements in terms of the type, size and location of facilities, including the impact of new and emerging technologies;
• analysis of market signals, including trends in take up and the availability of logistics land and floorspace across the relevant market geographies;
• analysis of economic forecasts to identify potential changes in demand and anticipated growth in sectors likely to occupy logistics facilities, or which require support from the sector; and
• engagement with Local Enterprise Partnerships and review of their plans and strategies, including economic priorities within Local Industrial Strategies.
• Strategic policy-making authorities will then need to consider the most appropriate locations for meeting these identified needs (whether through the expansion of existing sites or development of new ones).
• Authorities will also need to assess the extent to which land and policy support is required for other forms of logistics requirements, including the needs of SMEs and of ‘last mile’ facilities serving local markets. A range of up-to-date evidence may have to be considered in establishing the appropriate amount, type and location of provision, including market signals, anticipated changes in the local population and the housing stock as well as the local business base and infrastructure availability.
Paragraph: 031 Reference ID: 2a-031-20190722”
The reality is that very often local plans have not kept pace with the extent of need. I wrote about two decisions by the Secretary of State to allow appeals in relation to large logistics proposals in the green belt, in Bolton and Wigan in my 25 June 2021 blog post The Very Specials.
As somewhat of an advocacy document for the sector, the BPF industrial committee published in January 2022, in conjunction with Savills, Levelling Up – The Logic of Logistics, a “report demonstrating the wider economic, social and environmental benefits of the industrial & logistics sector”, going into detail with facts, figures and examples as to the extent of the current need and extent of historically supressed demand, the functions of logistics space in the economy, the nature of the jobs created, sustainability credentials and its potential “levelling up” role (was this indeed a factor in those Bolton and Wigan decisions?).
“■ Introducing a Presumption in Favour of Logistics Development … when precise criteria are met. This is needed as Local Plans can take years to be adopted and therefore are completely out of kilter with the pace of market changes;
■ Ensuring Local Plans allocate sites in the right locations to respond to a broad range of market needs;
■ Modernising Employment Land Reviews to allow for the utilisation of ‘real time’ information so that they can be kept up to date; and
■ Introducing an Employment Land Delivery Test to ensure that a commensurate amount of employment land is brought forward to counterbalance housing and that any employment land lost to other uses is delivered in the right locations. If a local planning authority failed to meet the delivery test, a presumption in favour of sustainable logistics development could be engaged.”
My 14 May 2022 blog post Does LURB Herald A More Zonal Approach to Planning After All? focused on housing issues but the risks are at least as great for logistics (and indeed industrial development more generally and of course often the boundary lines between light industrial, general industrial and logistics are increasingly blurred). With a planning system which is even more plan-led, where planning decisions are to be made in accordance with the development plan and national development management policies “unless material considerations strongly indicate otherwise”, and with the duty to co-operate with other local planning authorities abolished, logistics promoters will have to put all their faith in each local planning authority making the right choices, in an environment where this form of development, often necessarily on green field sites, can often be locally unpopular. Might national development management policies indeed point towards a criteria-based presumption on certain types of unallocated land? We just don’t know.
Of course, it may be that we start to see some large logistics schemes go by way of the Planning Act 2008 NSIPs route, requiring a direction first from the Secretary of State that the project is indeed to be considered a nationally significant infrastructure project. However, until such time as the procedure is reformed, it is an enormous undertaking in terms of process. The track record for business and commercial DCOs is not good: two sought, two withdrawn! The DCO application for the London Resort theme park in Kent was withdrawn on 29 March 2022 and on 13 April 2022 the Secretary of State withdrew (at the request of the promoter, so that the proposal could continue by way of a Town and Country Planning Act application for planning permission) the direction that he had previously made that phase 2 of the international advanced manufacturing park (IAMP) proposal in Sunderland be treated as an NSIP. Of course, the position for rail-connected logistics schemes which meet the tests in section 26 of the 2008 Act for a strategic rail freight interchange is more positive, with four DCOs made to date (Daventry, East Midlands Gateway, Northampton Gateway and West Midlands Interchange).
We will be discussing many of these issues on clubhouse at 6 pm on Tuesday 24 May, where we will be focusing on the BPF’s Levelling Up – the Logic of Logistics report and, in particular, the likely prognosis for industrial and logistics development under the planning reforms now announced. I’ll be joined by Gwyn Stubbings (GLP) and Ben Taylor (Newlands) from the BPF’s industrial committee, together with the BPF’s head of planning and development Sam Bensted. Join us here.
A little further ahead, please also consider registering for a Town Legal/Landmark Chambers webinar (yes a good old fashioned 2020-style webinar…) at 5 pm on Monday 6 June back on the theme of housing: “Will the Bill deliver more or less housing? Yes or no?” Simon Gallagher (Department of Levelling Up, Housing and Communities) will join Zack Simons (Landmark Chambers), Kathryn Ventham (Barton Willmore now Stantec) and myself in a session chaired by Town Legal’s Meeta Kaur. Join us here.
My Town Legal colleagues have put together a fantastic (I think) 17 page summary of the main planning and compulsory purchase provisions of the Bill. Thanks Safiyah Islam and the following contributors:
• Part 3, Chapter 1 – Planning Data – Aline Hyde
• Part 3, Chapter 2 – Development Plans – Emma McDonald
• Part 3, Chapter 3 – Heritage – Cobi Bonani
• Part 3, Chapter 4 – Grant and Implementation of Planning Permission – Lucy Morton
• Part 3, Chapter 5 – Enforcement of Planning Controls – Stephanie Bruce-Smith
• Part 3, Chapter 6 – Other Provision – Stephanie Bruce-Smith
• Part 4 – Infrastructure Levy – Clare Fielding
• Part 5 – Environmental Outcomes Reports – Safiyah Islam
• Part 6 – Development Corporations – Amy Carter
• Part 7 – Compulsory Purchase – Raj Gupta
* Relevant clauses in Part 2 (Local Democracy and Devolution), Part 8 (Letting by Local Authorities of Vacant High-Street Premises), Part 9 (Information About Interests and Dealings in Land) and Part 10 (Miscellaneous) – Victoria McKeegan
If you would like to receive further detailed updates from time to time please email email@example.com.
I held a Clubhouse session on 12 May 2022 where I discussed the changes and their possible implications alongside Catriona Riddell, Phil Briscoe, Nick Walkley and Meeta Kaur. It is available to listen to here.
For a deeper dive into the compulsory purchase elements, do join our next Clubhouse session at 6 pm on Tuesday 17 May 2022, where my colleagues Raj Gupta and Paul Arnett will be leading a discussion with special guests Charles Clarke (DLUHC, previous chair of the Compulsory Purchase Association), Henry Church (CBRE, and current chair of the Compulsory Purchase Association), Caroline Daly (Francis Taylor Building), Virginia Blackman (Avison Young) and Liz Neate (Deloitte). Some line up! Join here.
Raj and Paul have also started a blog, Compulsory Reading, focused on CPO issues. The first post is here and, guess what, this will be compulsory reading if your work touches at all on the intricate and changing world of compulsory purchase law.
Phew! So what was I getting at in the heading to this post? Surely any fule kno that there was once a government white paper in August 2020 that, amongst other things, proposed a more zonal approach to planning – with local plans throwing all areas into three hoppers: protected, restricted and growth – but that the political lesson learned was that this would be a vote loser and so the zonal approach was abandoned by incoming Secretary of State Michael Gove in the wake of the Chesham and Amersham by-election?
The idea of growth areas (where allocation would amount to automatic development consent) has certainly been abandoned, but the consequence of a number of the proposals in the Bill in my view leads us more towards a system where there is much less decision making flexibility in relation to individual planning applications and appeals. Instead, planning decisions will need to be made in accordance with the development plan and national development management policies “unless material considerations strongly indicate otherwise”.
So developers will need to make sure that:
⁃ development plans (local plans, neighbourhood plans) etc allocate the necessary land.
– the associated mandatory local design codes are workable
⁃ they can work within the constraints of whatever national development management policies the Government arrives at.
If development accords with these requirements, planning permission should be a doddle. If not, you plainly need to overcome a heavy presumption against. Our current flexible system (sometimes good, sometimes bad) will take a big lurch towards being rule-based or, dare I say it, zonal.
This may be a Good Thing or it may be a Bad Thing. Much depends on whether development plans, local design codes and national development management policies are properly tested for their realism. There will be even more focus on testing the soundness of local plans.
However, when it comes to local plan making, there are some major unresolved uncertainties:
⁃ First, what housing numbers do local authorities need to plan for? The Government still aspires to a 30 month local plan preparation to adoption timescale but that is only going to work if you have a largely “plug in and play” approach to the numbers, as was envisaged in the White Paper. What will happen to the standard methodology? We don’t get know. The Government’s policy paper says this:
“The changes in the Levelling Up and Regeneration Bill will require a new National Planning Policy Framework for England. The Government continues to listen to the representations of MPs, councillors and others on the effectiveness not only of the formula but the surrounding policies. Alongside Committee stage of the Bill, it intends to publish an NPPF prospectus setting out further thinking on the direction of such policies.”
What numbers are we planning for as a country? Are we still targeting 300,000 homes a year? The Government’s response to the Select Committee report on the planning white paper says this:
“The Government is determined to create a market that builds the homes this country needs. Our ambition is to deliver 300,000 homes per year on average and create a market that will sustain delivery at this level. There is compelling evidence that increasing the responsiveness of housing supply will help to achieve better outcomes. There seems to be consensus that 250,000 to 300,000 homes per annum should be supplied to deliver price and demand stability. For example, a 2014 joint KPMG and Shelter report highlighted that 250,000 homes per annum were needed to address price and demand pressures.”
⁃ Secondly, what will replace the duty to co-operate, which will be abolished? What will the new duty to assist really amount to? Can authorities adjoining urban areas with high unmet housing needs simply turn away from meeting those needs?
⁃ Thirdly, what if the allocations in the plan prove to be undeliverable or do not come forward? The safety net/potential stick of the five year housing land supply requirement (and presumably the tilted balance) in the case of up to date plans is to be abolished according to the policy paper:
“To incentivise plan production further and ensure that newly produced plans are not undermined, our intention is to remove the requirement for authorities to maintain a rolling five-year supply of deliverable land for housing, where their plan is up to date, i.e., adopted within the past five years. This will curb perceived ‘speculative development’ and ‘planning by appeal’, so long as plans are kept up to date. We will consult on changes to be made to the National Planning Policy Framework.”
Much is to be resolved here before we can begin to work out whether the proposals in the Bill will be an improvement on the present position.
Of course, the Government recognises that more work is needed. The following forthcoming consultation processes are identified:
“Technical consultations on the detail of the Infrastructure Levy and changes to compulsory purchase compensation.
• A consultation on the new system of Environmental Outcomes Reports which will ensure we take a user-centred approach to the development of the core elements of the new system, such as the framing of environmental outcomes as well as the detailed operation of the new system.
• A technical consultation on the quality standards that Nationally Significant Infrastructure Projects will be required to meet to be considered for fast-track consenting and associated regulatory and guidance changes to improve the performance of the NSIP regime.
• Proposals for changes to planning fees.
• Our vision for the new National Planning Policy Framework (NPPF), detailing what a new Framework could look like, and indicating, in broad terms, the types of National Development Management Policy that could accompany it. We will also use this document to set out our position on planning for housing, and seek views on this, as well as consulting on delivering the planning commitments set out in the British Energy Security Strategy.”
I hope this serves as some sort of introduction to the Bill and a taster as to some of the issues which will be occupying so many of us as the Bill passes through its Parliamentary stages. I don’t expect it to be on the statute book before early 2023, with a fair wind, and most of its provisions will not be in force until 2024 at the earliest. Final health warning: Bills change – we can expect plenty of amendments, omissions and additions over coming months.
Aside from my earlier plugs for our newsletters and the Planning Law Unplanned clubhouse sessions, I would also recommend two other blog posts: those of Nicola Gooch and Zack Simons . None of us has come up with a satisfactory LURB pun yet but I’m sure we all have our teams working on it.
Computer analogies about the planning system used to be all the vogue. Remember open-source planning anyone, and all that talk of rebooting? Sadly, the phrase “spinning wheel of death” now comes to mind in relation to so many local plan processes up and down the country, particularly in green belt authority areas.
“We will be providing a further update on our approach to changes in the planning system in the Spring. This will provide further detail on how we will take forward measures to create a modernised and effective planning system that empowers communities to support, and local authorities to deliver, the beautiful, environmentally-friendly development this country needs.
Whilst we understand that many colleagues in local government are looking forward to further detail on the precise details of our changes to planning, I would like to take this opportunity to encourage local authorities to continue work to ensure they have an up-to-date local plan in place in a timely manner.”
Surely something more than words of encouragement to local plan making authorities is needed in the face of what is now a growing systemic issue (thank you to my colleague Stephanie Bruce-Smith for the list, media links and quotes):
• Basildon Councilresolved on 10 February 2022 to withdraw its plan, two years into an examination in public:
“Committee papers released prior to the full council meeting last night said the motion to withdraw the plan was “based upon, in part, to the current Conservative Administration views and beliefs in placing a greater emphasis on protecting the Greenbelt for current and future generations than the previous administration.”
• Welwyn Hatfield Borough Councilresolved on 27 January 2022 to seek to take a different stance to that of the inspector of its local plan, voting down proposed modifications that would have achived the inspector’s required 15,200 homes in favour of a reduced number of 13,279:
“The Leader of the Council said the administration was “stuck between a rock and a hard place” [after backing plan to fight inspector on housing targets], but presented a “viable alternative” which involved less building on the green belt.”
• Hertsmere Borough Council resolved on 26 January 2022 to abandon its draft plan:
“Cllr Bright acknowledged the decision meant the council was unlikely to meet [the 2023 deadline], but said, “this potential decimation of large swathes of the Green Belt has been too much for local people and local councillors to accept”.
• Mid Sussex District Councilresolved on 21 January to delay work on its draft plan:
“The scrutiny committee voted in favour of a motion to discuss the district plan review so that “further work and consideration can take place and the outcome of any change in government policy can be known”, the committee’s chairman said.”
• Ashfield District Councilresolved in November 2021 to pause work on its emerging plan:
“Coun Matthew Relf (Ash Ind), cabinet member for place, planning and economic regeneration on the district council, said: […]
“Now Michael Gove has stated that the very assumptions we were forced to use are out of date and all Government housing policy is being looked at.
“To that end, we will pause the local plan timetable until we get greater clarity.”
• Arun District Councilresolved on 6 October 2021 to pause work on its emerging plan:
“At an Arun District Council planning policy committee on Wednesday (October 6), members voted to put the work on hold [and look again in 6 months’ time].
This was in light of proposed reforms to the planning system as a result of the government’s white paper ‘Planning for the Future’ and the upcoming Planning Bill.”
You may know of other examples. The draft Royal Borough of Windsor and Maidenhead plan of course only squeaked through 22 – 17 on 8 February 2022:
“Cllr Coppinger said it was “the most important paper” he has brought to the council, adding the borough is “desperate” for affordable family housing.
He warned if the local plan is not adopted, government would ‘force’ the council to adopt it as all local authorities must have an updated plan in place.”
We wait to see what consequences, if any, await those authorities which have decided to take a “wait and see” approach, rather than proceed with green belt release.
The Secretary of State has powers to intervene (see my 18 November 2017 blog post Local Plan Interventions) but Joanna Averley’s “encourage” wording seems some way short of that…yet (contrast with this week’s designation of Uttlesford District Council for “not adequately performing their function of determining applications for planning permission for major development”, meaning that applications for planning permission for major development may now be made direct to the Planning Inspectorate). Much of this is all of course the entirely foreseeable consequence of the ongoing uncertainty as to what reforms to the planning system will now be made. We look forward to the Spring, in so many ways.
As a half-term holiday treat, there will be no clubhouse session this week, although recent events are available on replay on the Planning Law Unplanned club page. Spencer Tewis-Allen is planning a “build to rent” themed discussion for 22 February 2022.
If you are dealing with any proposal for a building of six storeys or more in London, R (London Borough of Hillingdon) v Mayor of London (Lang J, 15 December 2021) is a vital case, because it resolves for now the question of how the relevant policy in the London Plan, policy D9, is to be interpreted. Is it right, as have some have contended, that tall buildings may only be developed in locations identified as suitable in boroughs’ local plans? Lang J says no.
The three relevant parts of the policy for the purposes of this issue, as quoted in the case, read as follows:
Based on local context, Development Plans should define what is considered a tall building for specific localities, the height of which will vary between and within different parts of London but should not be less than 6 storeys or 18 metres measured from ground to the floor level of the uppermost storey.
1) Boroughs should determine if there are locations where tall buildings may be an appropriate form of development, subject to meeting the other requirements of the Plan. This process should include engagement with neighbouring boroughs that may be affected by tall building developments in identified locations.
2) Any such locations and appropriate tall building heights should be identified on maps in Development Plans.
3) Tall buildings should only be developed in locations that are identified as suitable in Development Plans.
Development proposals should address the following impacts:
1) visual impacts […]
2) functional impact […]
3) environmental impact […]”
(there is also a fourth part – as to provision for public access).
The big question has been whether the first and second parts of the policy have to be passed before a scheme can be judged as against the detailed criteria in part C.
The text underlined had been added pursuant to a direction by the Secretary of State dated 10 December 2020 before the plan was then adopted on 2 March 2021.
Quoting from the judgment:
“The Secretary of State’s covering letter, dated 10 December 2020, said as follows:
“….. I am issuing a new Direction regarding Policy D9 (Tall Buildings). There is clearly a place for tall buildings in London, especially where there are existing clusters. However, there are some areas where tall buildings don’t reflect the local character. I believe boroughs should be empowered to choose where tall buildings are built within their communities. Your draft policy goes some way to dealing with this concern. In my view we should go further and I am issuing a further Direction to strengthen the policy to ensure such developments are only brought forward in appropriate and clearly defined areas, as determined by the boroughs whilst still enabling gentle density across London. I am sure that you share my concern about such proposals and will make the required change which will ensure tall buildings do not come forward in inappropriate areas of the capital.”
DR12 set out a “Direction Overview” as follows:
“The draft London Plan includes a policy for tall buildings but this could allow isolated tall buildings outside designated areas for tall buildings and could enable boroughs to define tall buildings as lower than 7 storeys, thus thwarting proposals for gentle density.
This Direction is designed to ensure that there is clear policy against tall buildings outside any areas that boroughs determine are appropriate for tall buildings, whilst ensuring that the concept of gentle density is embodied London wide.
It retains the key role for boroughs to determine where may be appropriate for tall buildings and what the definition of tall buildings are, so that it is suitable for that Borough.”
The ‘statement of reasons’ for DR12 stated inter alia:
“……The modification to policy D9 provides clear justification to avoid forms of development which are often considered to be out of character, whilst encouraging gentle density across London.”
The issue had come before the court in the context of planning permission granted by the Mayor of London for the redevelopment of the former Master Brewer Motel site in Hillingdon – a development promoted by Inland Homes for a series of buildings of up to 11 storeys in height. Hillingdon Council had resolved to refuse planning permission on the basis that tall buildings in this location would be contrary to its local plan but the Mayor had recovered the application for his own determination and approved it on 30 March 2021.
There were three grounds to the judicial review brought by the Council:
“i) The Defendant misinterpreted Policy D9 of the London Plan 2021 by concluding that, notwithstanding conflict with Part B of that policy, tall buildings were to be assessed for policy compliance against the criteria in Part C.
ii) The Defendant erred in failing to take into account a material consideration, namely, the Claimant’s submissions and accompanying expert evidence as to air quality.
iii) The Defendant acted unlawfully and in a manner which was procedurally unfair in that he failed to formally re-consult the Claimant or hold a hearing, prior to his re-determination of the application, following the adoption of the London Plan 2021.”
I am only focusing on the first ground but the third ground may also be of interest on the question of when an application needs to be re-consulted upon or re-considered in the light of changes in policy.
The analysis carried out by the judge is interesting.
First of all she considers whether the meaning of the policy was “clear and unambiguous” such that under legal principles of interpretation, the courts should not have regard to extrinsic materials to assist in interpretation. She recorded that “[a]ll parties contended that the meaning of Policy D9 was clear and unambiguous, despite the differences in their interpretation of it. In those circumstances, applying the principles set out above, I consider that I ought not to have regard to the letter from the Secretary of State to the Defendant dated 10 December 2020 (paragraph 46 above) as it is not a public document which members of the public could reasonably be expected to access when reading Policy D9. Furthermore, it is of limited value as, taken at its highest, it sets out the Secretary of State’s intentions, whereas the Court must consider the meaning of the words actually used in Policy D9, as amended by DR12, which in my view did not give effect to the expressed intentions in the letter.”
(I’m scratching my head as to how the various parties to litigation can be arguing as to the meaning of a policy but can agree that the meaning of the policy is “clear and unambiguous”. In saying that the Secretary of State’s direction letter “was not a public document which members of the public could reasonably be expected to access when reading Policy D9”, I take it that she was not saying that it was not a “public document”, which of course it was, but that a member of the public should not be expected to go searching for such documents to assist with interpretation of a policy if it is indeed clear and unambiguous).
She then concludes that the council’s interpretation of the policy “cannot be correct”:
“Read straightforwardly, objectively and as a whole, policy D9:
i) requires London Boroughs to define tall buildings within their local plans, subject to certain specified guidance (Part A);
ii) requires London Boroughs to identify within their local plans suitable locations for tall buildings (Part B);
iii) identifies criteria against which the impacts of tall buildings should be assessed (Part C); and
iv) makes provision for public access (Part D).
There is no wording which indicates that Part A and/or Part B are gateways, or pre-conditions, to Part C. In order to give effect of Mr Howell Williams QC’s interpretation, it is necessary to read the words underlined below into the first line of Part C to spell out its true meaning:
“Development proposals in locations that have been identified in development plans under Part B should address the following impacts.”
But if that had been the intention, then words to that effect would have been included within the policy. It would have been a straightforward exercise in drafting. It is significant that the Secretary of State’s direction only required the addition of the word “suitable” to Part B(3). It did not add any text which supports or assists the Claimant’s interpretation, even though the Secretary of State had the opportunity to do so.
In my view, the context is critical to the interpretation. Policy D9 is a planning policy in a development plan. By section 70(2) TCPA 1990 and section 38(6) PCPA 2004, there is a presumption that a determination will be made in accordance with the plan, unless material considerations indicate otherwise. Thus, the decision-maker “will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it”: per Lord Clyde in City of Edinburgh at 1459G. Furthermore, the decision-maker must understand the relevant provisions of the plan “recognising that they may sometimes pull in different directions”: per Lindblom LJ in BDW Trading Ltd at , and extensive authorities there cited in support of that proposition. As Lord Reed explained in Tesco Stores Ltd v Dundee City Council, “development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another”.
The drafter of Policy D9, and the Defendant who is the maker of the London Plan, must have been aware of these fundamental legal principles, and therefore that it was possible that the policy in paragraph B(3) might not be followed, in any particular determination, if it was outweighed by other policies in the development plan, or by material considerations. It seems likely that policy provision was made for such cases, given the importance of the issue.
In considering whether to grant planning permission for a tall building which did not comply with paragraph B(3), because it was not identified in the development plan, it would surely be sensible, and in accordance with the objectives of Policy D9, for the proposal to be assessed by reference to the potential impacts which are listed in Part C. The Claimant’s interpretation leads to the absurd result that a decision-maker in those circumstances is not permitted to have regard to Part C, and must assess the impacts of the proposal in a vacuum.”
“Notwithstanding the non-compliance with Part B of Policy D9, the Defendant determined that the proposal accorded with the provisions of the development plan when read as a whole. That was a planning judgment, based on the benefits of the proposal, such as the contribution of much-needed housing, in particular affordable housing, and the suitability of the Site (brownfield and sustainable, with good transport). The Defendant was satisfied, on the advice of the GLA officers, that sufficient protection from air quality impacts would be achieved. The Defendant was entitled to make this judgment, in the exercise of his discretion.”
Accordingly, boroughs do not have a veto, by virtue of their local plans, as to where tall buildings may be located in their boroughs – policy D9 is not to be interpreted in a way automatically treats proposals for tall buildings as contrary to the development plan where they are not supported in the local plan.
Whether or not this is what the previous Secretary of State intended with his direction may be another matter but of course the London Plan is adopted and free from the possibility of legal challenge (and, pragmatically, the Secretary of State could have course chosen to call in the application but did not) – and if parts A and B were indeed to be a necessary gateway there would be the immediate issue that any development of buildings of six storeys or more would be stymied as contrary to the development plan until boroughs’ plans had caught up with, and been examined in the context of, the new policy approach – hardly consistent with the Secretary of State’s urging for London to achieve a significant increase in housing delivery.
To mark the end of 2021 and, self-indulgently, the 5th anniversary of my firm, we have a unique Clubhouse event planned for 6 pm this Tuesday 21 December: “START ME UP: how Town Legal started 5 years ago – & why”. There will be a stageful of “day one” Townies: Clare Fielding, Patrick Robinson, Meeta Kaur, Benita Wignall, Spencer Tewis-Allen, our former chairman (and ex Herbert Smith Freehills COO) John Mullins and former associate Ricky Gama (now Leigh Day) as well as our good friends, without whom…, Drew Winlaw (Simmons Wavelength) and Beau Brooke (Kindleworth). If you ever wondered what it takes to create a professional services firm from scratch, do tune in. Link to app here.
Just as solutions are beginning to emerge to unlock the development embargos that have been in place in many areas due to the nutrient neutrality issue, areas of Sussex now have a new problem: water.
For over two years now, where the integrity of special areas of conservation or special protection areas (areas of nature conservation importance previously protected at EU level) are already under stress due to nitrate or phosphate pollution (usually due to historic farming practices), Natural England has been advising local planning authorities that an appropriate assessment cannot be reached under regulation 63 of the Conservation of Habitats and Species Regulations 2017 to the effect that further development, causing additional sewage or surface water run-off will not affect the integrity of nearby SACs and SPAs unless measures will are secured to achieve neutrality, either on or off site. Under the 2017 Regulations, unless a development can pass that appropriate assessment test it’s stuffed, no go.
Topically, HBF’s director for cities, James Stevens, has written an article Wading through the effluent in the October 2021 edition of Housebuilder magazine as to the problems being caused to housebuilders by needing to achieve nutrient neutrality, even where a technical solution can be found – the average costs being apparently over £5,000 per dwelling.
But those involved with development in Horsham, Crawley and Chichester, which fall within the Sussex North Water Supply Zone, are all now faced with an even more challenging issue: the potential need to demonstrate water neutrality. Natural England has become increasingly concerned as to the impact of groundwater abstraction on the Arun Valley SPA, SAC and Ramsar site. It has recently published its Position Statement for Applications within the Sussex North Water Supply Zone – interim approach (September 2021):
“Natural England has advised that this matter should be resolved in partnership through Local Plans across the affected authorities, where policy and assessment can be agreed and secured to ensure water use is offset for all new developments within Sussex North. To achieve this Natural England is working in partnership with all the relevant authorities to secure water neutrality collectively through a water neutrality strategy.
Whilst the strategy is evolving, Natural England advises that decisions on planning applications should await its completion. However, if there are applications which a planning authority deems critical to proceed in the absence of the strategy, then Natural England advises that any application needs to demonstrate water neutrality. We have provided the following agreed interim approach for demonstrating water neutrality:
The relevant authorities are now advising applicants accordingly. Crawley Borough Council’s website for instance now says this:
“Developers / planning applicants who can demonstrate water neutrality such as having significant water efficiency measures built into their development and by providing offsetting measures to reduce water consumption from existing development, and who are able to enter into legal obligations to secure these measures, would be able to proceed, subject to the planning process. The onus is on developers and planning applicants to demonstrate that they can deliver water neutrality for their proposals. For applications in these circumstances which are not able to do this, the Local Planning Authority [the council] when determining a decision, would unfortunately have no choice but to refuse them, as a matter of law, in light of the Natural England Statement.
The Local Planning Authority [the council] has written urgently to agents of affected applicants advising them of Natural England’s position and advising them that, for the time being, all applications where a positive decision / recommendation was / is to be made on an application will have to be delayed if they are within the Southern Water supply zone, until the matter of water neutrality can be addressed.”
Without speedy solutions, this is going to create real problems both for individual developers in the area and for authorities in bringing forward deliverable local plans.
No doubt there will be solutions in due course (and questions do have to be asked as to whether the issue really lies with the water abstraction licences, which presumably were the subject of appropriate assessment under the 2017 Regulations and their statutory predecessors, rather than with those who are seeking to have access the abstraction of which has already been licensed!) but how long will that take and at whose cost?
In the meantime, what an unplanned mess.
Simon Ricketts, 9 October 2021
Personal views, et cetera
Talking of Planning Law Unplanned…our clubhouse session will tackle this subject in more detail with practical, authoritative, input from special guests including Peter Home (mentioned above), Tim Goodwin, Charlie Banner QC, Richard Turney and others. Do join us at 6 pm on Tuesday 12 October. Link to app here.
A personal rant, with apologies. Did you see that quote in the Daily Mail about the long awaited Planning Bill?
“A Government source said ministers would be in ‘listening mode’ on the issue when Parliament returns in September, adding: ‘We’ll listen and we’ll move.
‘We can take some of the edges off that are upsetting people and still get some important changes through.
‘The bottom line is we have got to get more houses built. The average age of a first-time buyer is 34. We have to get that down and give younger people a chance to get a stake in society.’”
Listening to whom, do we think? Backbench Conservative MPs of course and voters in relevant constituencies of course. Anyone else? Shrugging shoulders emoji.
Does the Government really believe that it can make changes that materially accelerate the delivery of homes, without upsetting voters and therefore backbench Conservative MPs? (I’m only focusing on the Conservative party because it is in Government – Labour MPs are hardly falling over themselves either to support development in their constituencies, and as for the Liberal Democrats…). I see it all around me, the social norm/knee jerk reaction to a development proposal being to object and being to assume that everyone else will want to object too – whether green field development (it should be on a brown field site) or the development of a brown field site (oh not there, too high, setting, infrastructure etc etc). Of course it is hoped that exhortations as to design will make a difference in making development less unpopular, but, even travelling optimistically, that is going to take a long long time.
So what are the “edges” that are going to be taken off the white paper proposals?
It’s obvious isn’t it? No doubt the idea that national housing targets will actually, perish the thought, have to be planned for by each local authority on a local basis, let alone find their way through to consents and development, isn’t just out of the window, it’s jumped down onto the pavement and skipped half way down the street by now.
“One leading rebel said: ‘If this ends up being a developers’ free-for-all, it will be utterly toxic for Tory MPs everywhere – not just in the South East.
‘If ministers get this wrong we can kiss goodbye to our new electoral success.
‘We will be doing the Lib Dems’ job for them across the Midlands, the South and the suburbs where we’ve had massive growth in recent years.
‘People are fed up. Being seen as the party concreting over our countryside or ramming housing estates into suburban green spaces will be electoral suicide. Boris needs to get a grip on this.’ Rebels want the idea of mandatory house-building targets replaced with voluntary ones.
They also want ministers to drop ‘growth zones’ in which planning applications would be automatically approved.”
Can we be clear: no-one I know in the development and planning world wants a fudged, bodged, old failed ideas re-branded, camel of a Planning Bill. Forget the whole thing rather than waste valuable time on a set of reforms based on political trade-offs and trying to be all things to all people. If as a politician you can’t focus on the objectives – climate change, providing everyone with a decent home, a functioning economy – because you’re just worrying about holding onto power and a job, forget it, don’t even start: with that frame of mind you will make things worse not better.
Without (1) a clear articulation of how many homes need to be built across the country, with a published evidence base to support that number (whether that’s 300,000 a year, or lower, or – probably – higher) and (2) those numbers somehow being divided out across the country without local opportunities for prolonged delays, obfuscation and special pleading (a year on from the white paper it is still really difficult to work out how this can be done), the system will continue to meander on its way – through the interminable plan making local politics, through the lengthy, unpredictable, too detailed and yet too light touch, examinations and through the inevitable court challenges.
The incoming coalition government in 2010 tore up top-down planning, in the form of the regional strategies, before the system even had time to prove itself. Yes it was an slow and over-engineered process, but there was at least the opportunity for democracy at the regional level in setting and apportioning numbers. The return to a bottom up approach, together with the let’s cross our fingers and rely on the duty (not really) to co-operate, and with a semi voluntary, almost unmappable, ad hoc patchwork of local authority combinations and alliances, has led to local plans being mired in endless debates as to numbers. Even with a supposedly standard method for calculating local housing need, those endless debates continue in every green belt local authority area – see Cherwell Development Watch Alliance v Cherwell District Council & Secretary of State (Thornton J, 30 July 2021) for the most recent example.
How are we going to get out of that mire, plan quickly and positively, stabilise spiralling house prices, reduce the age at which adult working offspring can leave the parental home to live somewhere convenient (let alone buy their own home – that’s a first world problem compared to the need for an affordable home in the first place), if local housing numbers are going to be left for local authorities and communities to determine?
Pray tell, “Government source”.
Simin Ricketts, 6 August 2021
Personal views, et cetera
Two great clubhouse Planning Law Unplanned events coming up:
⁃ 6pm Tuesday 10 August: Stonehenge road tunnel consent quashed: why, how, what next – discussion led by junior counsel to Save Stonehenge, Victoria Hutton. Link to invitation here.
⁃ 6pm Tuesday 17 August: AN END TO UGLY: The Office for Place & NMDC unpacked – special guests Nicholas Boys-Smith (chair, Office for Place), Dr Chris Miele (Montagu Evans) and Vicky Payne (URBED). Link to invitation here.
On 16 December 2020 the Government abruptly abandoned its proposed revised standard method for calculating local housing need, in the face of political and media pressure from those who saw the method increasing substantially the figure for their particular areas. I covered the consultation as to the proposed revised method in my 29 August 2020 blog post, asking whether we might see a fudged outcome.
So the Government has decided to stick to its previous 2017 method (just as much of an algorithm, equally “mutant”), one based on out of date household formation figures from 2014 (2014!), but with a heavy handed readjustment of the figures to ensure that they still add up to 300,000 homes (a number which itself has no empirical basis – but reflective of the extent of the, plain to see, housing crisis). The heavy handed-adjustment? To increase the relevant figure by 35% for England’s 20 largest towns and cities, including London.
Imagine if a local planning authority attempted to include housing numbers in its plan in such a way, without evidence! (Or indeed if it introduced a blanket “approve it all” policy equivalent to the effect of the new class E to C3 PD right!).
If anyone knows about planning and housing, it’s Chris Young QC. He had put forward constructive suggestions for improving the proposals given the unduly low numbers the draft revised method would have achieved for much of the north. His subsequent LinkedIn post was incandescent:
“- Confused about the “new” Standard Method?
– Baffled why it fails to address levelling up across the North?
– Mystified why in an economic crisis, Govt would focus on the largest cities where apartment prices are falling?
– Troubled by the urban focus, when overcrowded housing is a key factor for the UK having the highest Covid 19 death rate in Europe?
Well, here’s what just happened
Govt introduced Standard Method 1 in 2017 to make housing targets simpler. But it added up to less than its own 300,000 annual target, and collapsed housebuilding in the North
In August, Govt consulted on a revised version. But it contained a double affordability uplift which piled the numbers into the Shires, causing a Tory revolt
Then experts in this field came up with a more appropriate set of numbers focussing on achieving 300,000 and levelling up the North.
And then Ministers bottled it
They decided to leave the formula, which they know doesn’t work, the same. But add 35% to the major constrained cities nearly all of which are Labour controlled, pinning their hopes on a collapse in the office market and town centres and the use of PD rights
Housing policy in this country is not about housing people. Its now 100% about politics”
I’ve no problem with an urban focus, but what really is the point when those higher numbers will not be achieved, meaning an inevitable failure to achieve the overall target?
Let’s take a step back (watch out for the Christmas tree though).
The Government’s NPPF tells local planning authorities this:
“To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.” (paragraph 60).
The new standard method is incredibly important, both for this purpose, and because it will form the basis for the new plan-making system proposed in the white paper, where local planning authorities will have to plan, without deviation, for the numbers handed down to them (numbers which will be based on this standard method and then tweaked by government by way of an as yet undevised process).
To understand the detail what has now been introduced, and the justifications given, there are four relevant documents, all published on 16 December 2020:
The response document tries to downplay the role of the numbers – making them out not to be a “target” but a “starting point”:
“Many respondents to the consultation were concerned that the ‘targets’ provided by the standard method were not appropriate for individual local authority areas. Within the current planning system the standard method does not present a ‘target’ in plan-making, but instead provides a starting point for determining the level of need for the area, and it is only after consideration of this, alongside what constraints areas face, such as the Green Belt, and the land that is actually available for development, that the decision on how many homes should be planned for is made. It does not override other planning policies, including the protections set out in Paragraph 11b of the NPPF or our strong protections for the Green Belt. It is for local authorities to determine precisely how many homes to plan for and where those homes most appropriately located. In doing this they should take into account their local circumstances and constraints. In order to make this policy position as clear as possible, we will explore how we can make changes through future revisions to the National Planning Policy Framework, including whether a renaming of the policy could provide additional clarity.”
Weaselly words! Of course they are a target. This methodology can no longer be said to be a proper methodological assessment of local need based on demographics and household formation rates – if nothing else, the 35% uplift for the major towns and cities puts paid to that. The justification given for the uplift is a policy justification:
“”First, building in existing cities and urban centres ensures that new homes can maximise existing infrastructure such as public transport, schools, medical facilities and shops. Second, there is potentially a profound structural change working through the retail and commercial sector, and we should expect more opportunities for creative use of land in urban areas to emerge. Utilising this land allows us to give priority to the development of brownfield land, and thereby protect our green spaces. And third, our climate aspirations demand that we aim for a spatial pattern of development that reduces the need for unnecessary high-carbon travel.”
I quoted Chris Young earlier. For an equally brilliant, expert and authoritative analysis how about Lichfields? This is a superb post by Matthew Spry and Bethan Hayes Mangling the mutant: change to the standard method for local housing need on the day of the announcement, including indications as to what the new numbers will mean for the 20 largest towns and cities:
How quickly will the changes come into effect? The Government’s response document says this:
“From the date of publication of the amended planning practice guidance which implements the cities and urban centres uplift, authorities already at Regulation 19, will have six months to submit their plans to the Planning Inspectorate for examination, using the previous standard method. In recognition that some areas will be very close to publishing their Regulation 19 plan, these areas will be given three months from the publication date of the revised guidance to publish their Regulation 19 plan, as well as a further six months from the date they publish their Regulation 19 plan to submit their plan to the Planning Inspectorate for examination, to benefit from the transition period.
The standard method has a role not only in plan-making, but is also used in planning decisions to determine whether an area has identified a 5 year land supply for homes and for the purposes of the Housing Delivery Test (where strategic policies are more than five years old). Where this applies, the revised standard method (inclusive of the cities and urban areas uplift) will not apply for a period of six months from the publication of the amended planning practice guidance. After 6 months, the new standard method will apply.”
“It is clear that in London, in the medium term, there will need to be a much more ambitious approach to delivering the homes the capital needs. The Secretary of State for Housing, Communities and Local Government expects to agree the London Plan with the Mayor shortly. This new plan, when adopted, will set London’s housing requirement for the next 5 years. The local housing need uplift we are setting out today will therefore only be applicable once the next London Plan is being developed. In order to support London to deliver the right homes in the right places, the government and Homes England are working with the Greater London Authority to boost delivery through the Home Building Fund. Homes England has been providing expertise and experience to support the development of key sites in London. Sites like Old Oak Common, Nine Elms and Inner East London provide opportunities to deliver homes on significant brownfield sites. The Secretary of State for Housing, Communities and Local Government will consider giving Homes England a role in London to help meet this challenge, working more closely with the Greater London Authority, boroughs and development corporations to take a more direct role in the delivery of strategic sites in London and the preparation of robust bids for the new National Homebuilding Fund.”
A final musing for the lawyers. It has become a bit of a knee jerk reaction to proposals to question whether strategic environmental assessment was in fact required but…was it?
“From the statutory framework it can be seen that a plan or programme is only required to be the subject of an environmental assessment if all four of the following requirements are satisfied:-
(1) The plan or programme must be subject to preparation or adoption by an authority at national, regional, or local level, or be prepared by an authority for adoption, through a legislative procedure by Parliament or Government;
(2) The plan or programme must be required by legislative, regulatory or administrative provisions;
(3) The plan or programme must set the framework for future development consents of projects; and
(4) The plan or programme must be likely to have significant environmental effects.”
It was held in that case that the GPDO and Use Classes Order changes did not require SEA because they do not set the framework for future development consents.
The previous challenge to NPPF changes in Friends of the Earth v Secretary of State (Dove J, 6 March 2019) had also failed. Dove J held that, whilst it did set the framework for subsequent development consents, the NPPF was not a measure “required by legislative regulatory or administrative provisions“.
But what is wrong with the following analysis?
⁃ criterion 1 – standard method = a plan prepared by government
⁃ criterion 2 – standard method = a plan required by administrative provisions, i.e. required by NPPF paragraph 60
⁃ criterion 3 – standard method sets framework for local plans and for decision making – e.g. onus on the major towns and cities in their next plans to plan for 35% more homes or suffer consequences via the tilted balance and housing delivery test – indeed geographically specific in a way which the NPPF and PPG has previously largely avoided
⁃ criterion 4 – standard method likely to have significant environmental effects – of course.
In any event, wouldn’t some evidence be helpful, as well as a proper assessment of impacts and alternatives, before lurching to a new system that has moved a long way further away from being any methodological assessment of local housing need?
What happens when a development plan, or one or more of its policies, is found to be unlawful? There have been two instances of this in 2020: in relation to the Leeds Site Allocations Plan (in the Aireborough case, the subject of three rulings by Lieven J between January and August this year) and in relation to the Harrogate Local Plan (in the Flaxby case, the subject of a ruling by Holgate J last week).
My firm acted for the claimant in both cases (alongside Jenny Wigley in Aireborough and Christopher Katkowski QC and Richard Moules in Flaxby). Aside from the substantive issues arising, the cases are interesting examples of the flexibility that the court has when it finds against the plan making authority. By virtue of the changes made to section 113 of the Planning and Compulsory Purchase 2004 by the Planning Act 2008, the court no longer simply has to quash the plan, or relevant part of the plan (meaning that the authority would need to start again) but can “remit” the plan back to an earlier stage in its preparation so that decisions can be taken again, from the stage where the errors occurred.
I set out the relevant sub-sections of Section 113 as follows:
(7) The High Court may—
(a) quash the relevant document;
(b) remit the relevant document to a person or body with a function relating to its preparation, publication, adoption or approval.
(7A) If the High Court remits the relevant document under subsection (7)(b) it may give directions as to the action to be taken in relation to the document.
(7B) Directions under subsection (7A) may in particular—
(a) require the relevant document to be treated (generally or for specified purposes) as not having been approved or adopted;
(b) require specified steps in the process that has resulted in the approval or adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken;
(c) require action to be taken by a person or body with a function relating to the preparation, publication, adoption or approval of the document (whether or not the person or body to which the document is remitted);
(d) require action to be taken by one person or body to depend on what action has been taken by another person or body.
(7C) The High Court’s powers under subsections (7) and (7A) are exercisable in relation to the relevant document—
(a) wholly or in part;
(b) generally or as it affects the property of the applicant.
At an initial hearing Lieven J first considered arguments at by Leeds City Council and the two developer interested parties that as an unincorporated association the Aireborough Neighbourhood Development Forum did not have legal capacity to bring the claim. After a useful review of the caselaw on standing, the judge held that the Forum could indeed bring the claim: the “critical question in judicial review or statutory challenge is whether the claimant is a person aggrieved or has standing to challenge, which is not a test of legal capacity but rather one of sufficient interest in the decision not to be a mere busybody.”
Judgment 2: substantive issues
There was then the main hearing, which lasted two days.
The Site Allocations Plan (SAP) had initially been promoted on the basis of housing need evidence prepared in accordance with Leeds City Council’s 2014 core strategy. The significant level of housing need identified by the core strategy was used as the basis for exceptional circumstances justifying green belt releases. However, the housing need requirement was reduced during the course of the SAP examination based on changes to the government’s standard methodology for assessing housing need, and a much lower housing need requirement was therefore promoted the city council as part of a selective review of the core strategy (CSSR) being promoted at the same time as the SAP.
The city council proceeded with the adoption of the SAP, in accordance with the examining inspectors’ recommendation, notwithstanding the claimant’s submissions that the case for exceptional circumstances had been undermined given the lower housing need.
The claim was successful on three grounds. The judge found that the material change of circumstances had been insufficiently considered and its consequences insufficiently explained by the examining inspectors. This amounted to a failure to provide adequate reasons, which had been contended in two grounds of challenge. The inspectors also made an error of fact amounting to an error of law in calculating housing need figures.
The defendant was found also to have breached the Strategic Environment Assessment Regulations by failing to consider and consult upon a “reasonable alternative” to continuing with the SAP in materially changed circumstances. However, relief was not granted in respect of this ground of challenge because the failure was found not to have been likely to have resulted in a different outcome.
Following hand down of the main judgment Lieven J then needed to consider the parties’ written submissions as to the relief to be granted to give effect to her judgment: whether to quash all or part of the document or to remit it back to the city council or Secretary of State.
The dispute between the parties was as to the appropriate remedy under section 113 and the scope of any remedy, i.e. whether it should apply across the whole of Leeds rather than just the area for which the claimant was the neighbourhood development forum. Applying University of Bath v North Somerset Council (HHJ Alice Robinson, 7 March 2013), the judge determined that remittal was the appropriate remedy, as she held that it was appropriate to go back to the stage where the error of law occurred rather than back to the very beginning of the local plan process.
The judge also held that the scope of the remedy should be all Green Belt allocations in Leeds, rather than just those in Aireborough. Although the claim was focused on Aireborough, the claim was never limited to only those sites. The grounds of challenge went to the Green Belt allocations in their entirety. In the face of submissions from the Secretary of State, the allocations were remitted back to the inspectors and the judge indicated that it would be for the council to consider what modifications if any to make.
Flaxby Park Limited v Harrogate Borough Council (Holgate J, 25 November 2020) concerned the new settlements policy within the plan, which purported to identify a broad location for a new settlement within the borough, at Green Hammerton/Cattal. Flaxby Park Limited argued that that the council had not properly considered its alternative proposals.
The detailed chronology is set out at length in Holgate J’s judgment but in basic summary, the local plan inspector agreed with Flaxby that the council should carry out further sustainability appraisal to consider possible reasonable alternatives to the Green Hammerton/Cattal, including broad locations around Flaxby and other new settlement options.
The council carried out further work and consulted upon it, reported it and the consultation responses to the inspector who concluded that the plan was sound. The council then adopted the plan.
In summary, Flaxby’s complaints were partly as to the adequacy of the sustainability appraisal work and the extent to which it had been taken into account by the council, arguing that the council (1) had failed properly to consider the outcome of the assessment of alternative “broad locations” (and officers purported to carry out that consideration rather than the council itself) (2) had failed to compare the broad locations of Flaxby and Green Hammerton/Cattal on an equal basis because it did not include in the Additional sustainability appraisal work an additional 630 ha of land which had been identified by consultees and (3) had failed properly to examine viability and deliverability of the Green Hammerton/Cattal proposals.
The judge partly accepted the first complaint, in that, after an examination of the extent to which decisions in relation to the local plan process may lawfully be delegated, he found that “the full Council did not take into account the final SEA material and consultation responses, or a summary and analysis thereof, when they resolved to adopt the local plan”.
The judge has ordered that “the whole of Local Plan shall be remitted firstly, to the Defendant’s Cabinet to re-consider whether or not to accept the Inspector’s recommendations in so far as they related to the New Settlement Policies, and secondly, to the Defendant’s full Council to consider the Cabinet’s decision, whether or not to accept the Inspector’s recommendations in so far as they related to the New Settlement Policies, and whether or not to adopt the Local Plan with those policies.”
For completeness while we are talking about local plan challenges…
This claim focused on the Local Plan’s Policy BE2 which, in operation with other parts of the plan, releases from the green belt a site of approximately 32 hectares of mainly agricultural land at Hollands Farm, south-east of High Wycombe, allocating the majority of the site for housing (some 467 dwellings).
The main grounds of challenge were first that Policy BE2 releasing the Site from the green belt was adopted on a basis of misunderstanding or misinterpretation of national policy (including the National Planning Policy Framework 2012 paragraphs 47 and 50) and guidance (including the 2014 Planning Practice Guidance) regarding published household projections, in part involving erroneous calculations of “objectively assessed housing need” (“OAHN”) for the local area. Second, that that Policy BE2 releasing the Site from the green belt was adopted on a basis of misapplication of national green belt policy requiring exceptional circumstances for release of land from green belt, in part as there were no exceptional circumstances.
Holgate J rejected all grounds of challenge. He stated that “it is important for the court to emphasise … that its role is not to consider the merits of the Council’s proposed policy or of the objections made to it. The court is only able to consider whether an error of law has been made in the decision or in the process leading up to it.”
On the first ground, Holgate J held that the local plan had been adopted following proper consideration of applicable published household projections, without errors of law, and with appropriate planning judgment being exercised by decision-makers. In doing so, he commented that “There have been many attempts in the last few years to entice the courts into making pronouncements on the methods used to assess OAHN. Repeatedly the response has been that this is a matter of planning judgment for the decision-maker and not for the courts.”
On the second ground, Holgate J held that, on the basis of there being no definition of the policy concept of “exceptional circumstances”, the expression “is deliberately broad and not susceptible to dictionary definition. The matter is left to the judgment of the decision-maker in all the circumstances of the case. Whether a factor is capable of being an exceptional circumstance may be a matter of law, as an issue of legal relevance. But whether it amounts to such a circumstance in any given case is a matter of planning judgment”. He held that the relevant decision-maker’s (an Inspector) reasons for finding “exceptional circumstances” do not “raise any substantial doubt as to whether a public law error was committed”; the “overall package of considerations upon which the Inspector relied was plainly capable of amounting to “exceptional circumstances” and could not be described as simply “commonplace”. It is impossible to say that the judgment which the Inspector reached was irrational. It did not fall outside the range of decisions which a reasonable Inspector could reach.”
The Court of Appeal this month refused the claimant permission to appeal.
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.
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 willcontinue 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.
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:
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.
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.
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.
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.
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
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.
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.
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.
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!