Gestation Of An Elephant: Plan Making

Keith Hill, then housing and planning minister, once described the process to Royal Assent of what became the Planning and Compulsory Purchase Act 2004 as “the gestation of an elephant”. It took 17 months. Given that the average gestation period for an Asian elephant is 18 to 22 months he wasn’t far off.

However, he would have been more accurate using the metaphor in relation to the local plan examination processes that were conceived by way of the Act. Lichfields’ January 2019 statistical report Planned up and be counted: Local Plan-making since the NPPF 2012 concludes that the average examination length under the 2012 NPPF has been 18 months.

My 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism attempted to go into some of the reasons for that.

15 years on from the 2004 Act, it is interesting to set what the aspirations of the Government of the time were, as against some examples of current examination processes up and down the country.

Barbara Roche in the House of Commons on 17 December 2002, introducing the Bill for a second reading:

We want to make the system fairer, faster and more predictable and to bring to planning clarity, certainty and more strategic direction.”

Lord Rooker in the House of Lords 6 January 2004:

“…the Bill sets out a reform planning system for this new century that will help us to deliver sustainable communities faster and more fairly—it is no good being faster unless it is fairer.”

What will the Bill do? It simplifies the plan-led process by abolishing the middle tier of planning—the structure plans—that exists in some areas; that is to say, areas where there are county councils and two-tier local government. The new system will have two linked levels of planning: regional spatial strategies and local development frameworks. The local development frameworks will be made up each of a set of local development documents, which each authority will be required to prepare. Together, these documents will replace local plans and unitary development plans. They will set out development proposals and have a clear map so that everyone can see what goes where.”

The Conservative peer Lord Hanningfield in response:

In introducing the legislation, the Minister pointed out that the Government seek to make the planning system simpler and quicker, aims which we support. However, we believe that the proposals risk achieving the opposite outcomes. This legislation will unleash regional spatial strategies, local development schemes, local development frameworks, local development documents, action area plans, simplified planning zones and statements of community involvement. How will all these plans and schemes, with their different timetables, consultations, inspections and appeals, make the system more transparent or streamlined? This level of complexity and fragmentation will accelerate public disenchantment with the system. It will lead to uncertainty, delay and planning by appeal.”

Looking back at the scrutiny of the Bill in Public Bill Committee on 23 October 2003 for instance, Geoffrey Clifton-Brown, then shadow spokesman for Communities and Local Government, responding to planning and housing minister Keith Hill, also pretty much called it right (but it was what we all said at the time):

I accept a lot of what the Minister said in his long speech about the deficiencies in the existing system, such as the inflexibility as well as the time and difficulty in getting a revision due to the need to revise the whole plan. We feel that the existing system with amendments could have been made to work and that tearing it up and replacing it with a highly complicated new system will make a paradise for lawyers. We will see judicial reviews and all manner of case law created as a result of the Bill, which will add to the delay that it will bring.”

I accept absolutely, however, what the Minister said about the existing system being inadequate, in that it is too slow and that 31 authorities do not have a plan in place. The Committee will not be surprised to learn that a number of practitioners and large developers who use the planning system have been through my offices in the last few weeks. The one thing they all say is, ”For goodness’ sake, we hope that this new system is going to be quicker and clearer, but we don’t think it is.” The test of time will prove that, but we need to ensure that the system will operate.”

Time will tell whether that new system works, but I have a new acronym— CHAOS, which stands for ”Can Hill’s Alternative Objectives Succeed?” I submit that they will not.”

Nothing is black and white in planning. It is not that there is chaos, but, guess what, the system is no quicker or clearer. We no longer have lengthy adversarial local plan inquiries but we are seeing increasingly lawyer-heavy local plan examinations (cross-examination having been replaced by duelling legal opinions), that can turn into utter sagas of successive rounds of inspectors’ preliminary findings, further work, further consultation and rescheduled hearing sessions. Outcomes are unpredictable. There is a lack of statistical transparency across the piece as to how the system is performing.

It took 28 months from submission of the Cambridge and South Cambridgeshire local plans for examination on 28 April 2014 to publication of the inspectors’ final report on 3 September 2018. Is that a record?

If so, it won’t be for long. From those plan examinations that I am immediately aware of:

Welwyn Hatfield will soon overtake that. Its plan was submitted for examination on 15 May 2017. During the course of the hearing sessions, the inspector was not satisfied that the council had allocated sufficient housing sites and the council embarked on a further call for green belt sites for possible release but misjudged how long the process would take, or simply failed to manage the process properly, leading the inspector to issue his 8 August 2019 letter to the council. You can sense the frustration in his tone. There is now no likelihood that the examination will be completed by May 2020, as the council had suggested back in March. If the council is not able to revise the timetable, “putting forward realistic time periods and milestones for the conclusion of all the outstanding tasks, including the hearings…or slippage continues to occur [beyond April 2020] then I think we should consider the option of you withdrawing the plan with a view to re-submitting it for Examination when the work is finally completed and there are no obvious soundness issues accompanying it”.

The North Essex Authorities section 1 local plan will run and run. The plan was submitted for examination on 9 October 2017. The inspector was not satisfied with the sustainability appraisal work underpinning identification of three new garden cities and raised concerns as to soundness in his 8 June 2018 letter. He gave the options of removing the garden cities from the plan on the basis of a commitment to an early review, or doing further working and undertaking further consultation. The authorities chose the latter course. Consultation starts on Monday until 30 September 2019 before further hearing sessions are then arranged, according to the inspector’s August 2019 update.

The Windsor and Maidenhead local plan was submitted for examination on 31 January 2018. The council has had to do various strands of further work since the stage 1 hearings which took place last year. Another frustrated inspector – her letter dated 21 June 2019 presses the council for “as much detail as possible” as to the likely implications for the plan of each strand and the number and nature of changes that it is likely to propose:

In making this assessment, please consider whether continuing with the examination of the submitted Plan is the most prudent course of action in light of the work you are doing and of the potential issues reported in our previous correspondence. If you remain of the view that the examination should continue, please set out clearly the steps necessary before hearings can resume along with a realistic timetable for the process. I would also ask you to consider whether a procedural hearing might be a useful means of clarifying the process for all parties and, if so, when it could take place.”

The St Albans local plan was submitted to the Secretary of State for examination in March 2019, following the failure of the previously submitted plan on the basis of the inspector finding that the duty to cooperate had not complied with. The hearing sessions were due to begin in October 2019 but already the examination has run into the sand. The council responded in detail on 31 July 2019 to initial questions from the inspectors. When I say “in detail”, their response as to its approach to proposed green belt releases runs to over 70 pages (an explanation that should surely have been available when the plan was initially submitted). The council has now confirmed that the stage hearing sessions will not be taking place until January and February 2020.

The York local plan was submitted for examination in May 2018, following years of delay and political disagreements. 15 months on, there is no sign of any hearing sessions. Consultation closed on 22 July 2019 in relation to a proposed revised housing need figure and other documents as well as a number of proposed consequent modifications to the plan.

And so it goes on. The North Warwickshire local plan was submitted for examination in March 2018. The inspector’s letter dated 24 June 2019 following the hearing sessions sets out various unresolved issues, the main one being the plan’s reliance on a HIF funding bid of around £58m which has not yet been awarded. The inspector puts forward three possible options for the council and recommends that in the first instance the council pursues option (a), which “may mean suspending the examination for a short period”:

a. await the outcome of the HIF bid and unambiguously identify the likely source(s) of funding for the dualling of the A5; or

b. put forward alternative sites that do not rely on highways improvements for which funding is not certain or unknown; or

c. withdraw the plan

The inspectors’ approach with the West of England joint spatial plan (submitted for examination in April 2018) – to recommend, after the first hearing sessions, withdrawal of the plan, in their letter dated 1 August 2019 – was perhaps a more realistically decisive response than the make-do-and-mend pragmatism that is leading time and time again to these prolonged examination processes, although equally unsatisfactory for the participants. They will provide more detailed reasoning later this month, but the inspectors have a series of concerns as to how the “strategic development locations” in the plan were selected against reasonable alternatives. They question whether further work could be carried out “with the necessary objectivity, rather than being an exercise to justify a predetermined spatial strategy.

It would obviously be better for all concerned if work is done to the necessary standard before plans are submitted. Why isn’t it? The problems can’t all be laid at the door of the 2012 NPPF and the uncertainties arising from the 2012 system of assessing housing need. Or of the prescriptive requirements of strategic environmental assessment.

Is it a lack of guidance, too many fudged compromises pre-examination or simply a system that is not fit for purpose?

Or, to mix mammalian metaphors, is it that, if the system was an elephant, perhaps now it is a camel? For example, crucial components of the 2004 brave new world were (1) the setting of numbers by way of regional spatial strategies (a process that proved slow and difficult, with little public appetite for directly elected regional assemblies), abolished once the coalition government took control in 2010, and (2) the concept that the local development scheme would comprise a variety of development plan documents, being updated at different times, but now encouraged to be bundled back together as local plans and thereby as cumbersome as the complex documents the 2004 system sought to replace. Tinkering has not necessarily improved.

An elephant would never forget the meandering way in which we ended up with our present planning system.

One hump or two?

Simon Ricketts, 17 August 2019

Personal views, et cetera

Pic courtesy of Wikipedia

Less Than Best Laid Plans: Political Pragmatism

The Secretary of State sent a curious letter to the Planning Inspectorate on 18 June 2019, which was only placed on the Government’s website on 28 June 2019. (The delay may have been to allow PINS to update its procedure guide for local plan examinations).

It is in two parts:

Sharing information with MHCLG

The Secretary of State reminds inspectors and local authorities that Parliament has given him “a number of powers that, where justified, allow [him] to become involved in plan making. This includes powers to notify or direct the Inspectorate to take certain steps in relation to the examination of the plan or to intervene to direct modification of the plan or that it is submitted to [him] for approval”. He states that he is “frequently asked by those affected by the plan making process to consider use of these powers and must look at each of these requests on a case by case basis. This includes requests from Members of Parliament, who have a legitimate interest in the progress of local plans in their areas and are accountable to their electorates. I am pleased that the Planning Inspectorate’s published Procedural Practice encourages MPs to participate in the examination hearing sessions even if they did not make a representation and I would encourage their involvement in this way”.

He considers that more can be done by way of sharing of factual information so that his officials can advise him as to whether use of his powers would be appropriate.

He sets out two changes to the arrangements for sharing of information between MHCLG and PINS with immediate effect:

1. On a quarterly basis the Planning Inspectorate will publish a report that sets out the plans that are expected to be submitted for examination in the following 6-month period. I ask that this report be published on the Planning Inspectorate website. Clearly this can only be as good as the information received from local authorities, and I am arranging for this to be drawn to the attention of local authorities to remind them of the importance of giving clear timetables;

2. The Planning Inspectorate will share all post-hearing advice letters, letters containing interim findings, and any other letters which raise soundness or significant legal compliance issues, as well as fact check reports, with my department on a for information basis, at least 48 hours in advance of them being sent to the Local Planning Authority

In relation to the second change, can I ask that we have on one website each of these documents as soon as they can be made public. There is a fundamental lack of transparency in the ad hoc way that this information is currently made available only on the relevant examination page of the particular local authority’s website, meaning that ensuring consistencies of approach, reviewing trends and learning from similar circumstances is currently very difficult indeed.

And what local plans have escaped to adoption before the relevant MP could ask the Secretary of State to apply the knife? Local Plan Intervention: a question of MP influence published by the House of Commons Library in July 2017 summarises the four times since the 2012 NPPF (to July 2017) when the Secretary of State had used his powers of intervention: Bradford, Birmingham, Maldon and North Somerset. In all but Maldon the intervention was at the request of an MP. I note that the MPs’ interventions only achieved delay to eventual adoption of the plan, whereas the call in of the Maldon plan was in circumstances where an inspector had found that the whole plan was unsound, due to its policies on traveller provision, the council’s chief executive successfully sought call in of the plan and the plan was eventually adopted.

Aside from the Secretary of State’s sabre rattling in relation to authorities that have not made sufficient progress with their plans, which I will come to in a moment, what interventions have there been since July 2017? Do we discern a continuing trend? Wouldn’t it be nice to have the information in one place so that potentially straight-forward questions such as that could be resolved. Is MPs’ interest more often in the “progress of local plans in their areas” or is it in being seen to be pressing in relation to those issues of most concern to their electorate eg retention of green belt and/or opposition to housing?

In fact, as I was typing this, in pinged a Planning magazine online update High Court allows legal challenge to Guildford local plan to proceed to full hearing (12 July 2019, behind paywall):

In May, Sir Paul Beresford, the Conservative MP for Mole Valley, wrote to several Guildford councillors expressing outrage at the “astonishing way” the plan had been adopted in the purdah period before local elections.”

Another Conservative MP on the “anti-housing in the Green Belt” campaign trail. Was this local plan perhaps “the one that got away” as far as MHCLG is concerned?

So how has the more general sabre rattling, in relation to delays in plan preparation, been going? My 18 November 2017 blog post Local Plan Interventions referred to the 31 January 2018 deadline given to 15 local authorities to set out any exceptional circumstances as to why they had failed to produce a local plan, to justify the Secretary of State not intervening in their local plan processes.

On 23 March 2018 the Secretary of State made a statement to the House of Commons, indicating that his attention had narrowed to three authorities: Castle Point, Thanet and Wirral:

In three areas, Castle Point, Thanet and Wirral, I am now particularly concerned at the consistent failure and lack of progress to get a plan in place and have not been persuaded by the exceptional circumstances set out by the council or the proposals they have put forward to get a plan in place. We will therefore step up the intervention process in these three areas. I will be sending a team of planning experts, led by the Government’s Chief Planner, into these three areas to advise me on the next steps in my intervention.

I have a number of intervention options available to me which I will now actively examine. As it may prove necessary to take over plan production, subject to decisions taken after the expert advice I have commissioned, my Department has started the procurement process to secure planning consultants and specialists to undertake that work so it can commence as quickly as possible. My Department will also be speaking to the county councils and combined authority with a view to inviting those bodies to prepare the local plan in these three areas as well as exploring the possibility with neighbouring authorities of directing the preparation of joint plans

Tough talk but it then took another ten months before intervention letters were finally sent to Wirral and Thanet on 28 January 2019.

The position in Castle Point is a mystery to me. Councillors voted down a proposed draft of the plan in December 2018. The council’s website simply says this:

A Special Council Meeting was held in November 2018, whereby the Council resolved to not proceed with the Pre-Publication Local Plan. As a result of this meeting the Council are in discussions with the Minstry of Housing, Communities and Local Government in regards to the next steps. “

But no intervention letter yet.

Sadly, if I worked for an authority I would presently be more concerned about the risk of the Secretary of State intervening in relation to a plan that has passed its examination and is about to be adopted than the risk of his intervening due to the lack of a plan in the first place or due to the authority’s withdrawal of a draft plan. We are seeing various authorities taking decisions to withdraw their submitted plans (for example East Cambridgeshire and Amber Valley) because they find the inspector’s findings, usually seeking further development allocations or additional housing numbers, unpalatable and there is still such slow progress on the part of many authorities. Surely this is the scourge – not plans which are within a process that has been refined by independent examination, the outcome of which happens to contradict the views of an MP, now encouraged to participate in hearing sessions “even if they did not make a representation”? In any world other than one in which backbench MPs have to be pacified, isn’t this madness?

The importance of being pragmatic

On the subject of pragmatism…

The second part of the Secretary of State’s 18 July letter comprises this final paragraph which I have already seen trotted out at an examination by one authority seeking to paper over the cracks:

Finally, on the substance of plan examinations, I wanted to stress to inspectors – who are doing a challenging job – the importance of being pragmatic in getting plans in place that, in line with paragraph 35 of the NPPF, represent a sound plan for the authority and consistent in how they deal with different authorities. We support and expect Inspectors to work with LPAs to achieve a sound plan, including by recommending constructive main modifications in line with national policy. In this regard, I would reiterate the views set out by the Rt Hon Greg Clark MP in his 2015 letter which I attach, on the need to work pragmatically with councils towards achieving a sound plan.”

I have since been trying to find an example of a local plan inspector in the last few years who has not been pragmatic in seeking to rescue a plan by way of main modifications rather than recommending withdrawal – and indeed the 2013/2014 spate of plans that failed examination were down to hard-edged legal failings in relation to the duty to cooperate.

Inspectors routinely allow pretty significant changes by way of main modifications, and general evidential backfilling, rather than recommend withdrawal. They routinely accept unenforceable assurances from the authority that the authority will carry out an early review – but at best “early” never means early and, at worst, as last week with the Reigate and Banstead plan, the authority’s (judge in its own cause) “review” determines that changes to the plan are not after all necessary!

So what is this paragraph getting at? If the Secretary of State were to be saying that inspectors should not be checking that legal requirements (eg the duty to cooperate and the need for adequate sustainability and habitats appraisals) have been met or that the plan meets the soundness test in NPPF, that would surely be wholly inappropriate. And shouldn’t we be protecting the independence of the Planning Inspectorate? Formal guidance is one thing, but “go easy” warning letters such as this surely just make an inspector’s task even more challenging.

Imagine equivalent guidance being given to appeal inspectors! Oh yes, bend over backwards to give the appellant time to amend elements of his scheme, overlook policy inconsistencies, fudge the approach to later phases of the development because the appellant has agreed, outside any enforceable timescale, to carry out an “early review” of those aspects. Doesn’t ring true, does it?

Simon Ricketts, 13 July 2019

Personal views, et cetera

MHCLG Consults On A Changed Basis For Assessing Local Housing Need & Other Urgent Repairs

I’m not sure anyone was expecting MHCLG to act quite so quickly to try to mend a number of problems that have been arising from the July 2018 NPPF (although perhaps problems of its own making).

Its technical consultation on updates to national planning policy and guidance (26 October 2018) invites comments by 7 December 2018 on the following:

Local housing need assessment

I referred in my 29 September 2018 blog post OAN Goal to the confusion caused by the publication by the ONS on 20 September 2018 of updated 2016-based household projections that resulted in the national minimum housing need calculated by the NPPF’s standard method falling significantly from data published in September 2017 which had been based on 2014 household projections.

There was widespread concern that the updated figures were not reliable. The Government had indicated that the figures would not lead to a reduction in the national 300,000 new homes target. A revision to the standard method was to be made so that the new household projections did not cause that target to be missed but in the meantime how were authorities to plan?

The consultation paper is unambiguous: the Government has decided that it is not right to change its aspirations and the ONS figures are indeed misleading due to the way that they only draw from two censuses (rather than previous projections based on five censuses) “which focuses it more acutely on a period of low household formation where the English housing system was not supplying enough additional homes“. In addition:

⁃ “Household projections are constrained by housing supply

⁃ “The historic under-delivery of housing means there is a case for public policy supporting delivery in excess of household projections, even if those projections fall“.

⁃ “Other things being equal a more responsive supply of homes through local authorities planning for more homes where we need them will help to address the effects of increasing demand, such as declining affordability, relative to a housing supply that is less responsive“.

⁃ “The above factors have led to declining affordability…This indicates that the Government should not be less ambitious for housing supply“.

The Government has decided that the best way of responding to the ONS household figures is to ignore them completely, ie in its language:

1. For the short-term, to specify that the 2014-based data will provide the demographic baseline for assessment of local housing need.

2. To make clear in national planning practice guidance that lower numbers through the 2016-based projections do not qualify as an exceptional circumstance that justifies a departure from the standard methodology; and

3. In the longer term, to review the formula with a view to establishing a new method […] by the time the next projections are issued.”

So for local plans submitted from 24 January 2019, the 2014-based household projections as per the September 2017 data are to be used but with current figures used for the calculation of the ratio of local median house prices to local median earnings (where the ratio exceeds four the standard method formula will continue to increase local need above household projections). This all provides authorities with welcome clarity – ignore the September 2018 ONS projections and no need to wait for tweaks to the methodology.

Housing land supply

The 2018 NPPF provides that in calculating how many years’ supply of housing land supply each authority has, the standard method for assessing local housing need is to be used as the baseline for housing land supply calculations where plans are considered to be out of date. The NPPF is to be amended (and updated planning guidance is to be published) so as to clarify that whilst in exceptional circumstances authorities can use a justified alternative approach to the standard method for calculating housing need, this only applies to plan making rather than in the calculation of need in the determination of applications and appeals where the scale of housing land supply is relevant.

The definition of deliverable

In order to determine whether an authority has a five year supply of deliverable sites, the definition of “deliverable” is critical. The Government has held its hands up: the definition of “deliverable” in the 2018 NPPF could be clearer. It proposes the following revised definition:

To be considered deliverable, sites for housing should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years. In particular:

a) sites which do not involve major development and have planning permission, and all sites with detailed planning permission, should be considered deliverable until permission expires, unless there is clear evidence that homes will not be delivered within five years (for example because they are no longer viable, there is no longer a demand for the type of units or sites have long term phasing plans).

b) where a site has outline planning permission for major development, has been allocated in a development plan, has a grant of permission in principle, or is identified on a brownfield register, it should only be considered deliverable where there is clear evidence that housing completions will begin on site within five years.”

There will be further guidance in due course “to provide further information on the way that sites with different degrees of planning certainty may be counted when calculating housing land availability“.

Development requiring Habitats Regulations Assessment

The Government belatedly intends to address a problem that has arisen from the European Court of Justice’s ruling in People Over Wind (see my 20 April 2018 blog post EU Court Ruling: Ignore Mitigation Measures In Habitats Screening). The 2018 NPPF followed the 2012 NPPF in disapplying the presumption in favour of sustainable development where appropriate assessment is required, even though the effect of People Over Wind is that appropriate assessment is now routinely required in relation to proposed developments where mitigation will avoid any potential from harm, thereby removing the presumption in relation to many more development proposals than had previously been the case.

Paragraph 177 is now proposed to be amended to read:

The presumption in favour of sustainable development does not apply where the plan or project is likely to have a significant effect on a habitats site (either alone or in combination with other plans or projects), unless an appropriate assessment has concluded that there will be no adverse effect from the plan or project on the integrity of the habitats site.”

So now the need for appropriate assessment will not be a bar to the presumption applying. The wording in fact now allows the presumption to apply to more schemes than was the case pre People Over Wind.

The Government could have dealt with this issue before the 2018 NPPF was published. It makes the rather weak excuse: “Although some consultation responses asked for an amendment to the Framework in the light of the ruling, there was not an opportunity for all interested parties to comment at the time.” Well, why was there not even a written ministerial statement to clarify the position? I’m sure I am not the only one to have lost a planning appeal partly due to the absurd position that arose.

The government also indicates that it is “considering what other changes to regulations and guidance may be necessary following the European Court’s ruling“.

In my view MHCLG should take some credit for trying to sort out all of these issues. It is also interesting that the previous approach of avoiding making running repairs to the NPPF has been abandoned – we can soon expect NPPF version 2.1.

Simon Ricketts, 26 October 2018

Personal views, et cetera

OAN Goal

The Government’s goal remains as per Philip Hammond’s 22 November 2017 Autumn budget statement:

So today we set out an ambitious plan to tackle the housing challenge.

Over the next five years we will commit a total of at least £44 billion of capital funding, loans and guarantees to support our housing market.

To boost the supply of skills, resources, and building land.

And to create the financial incentives necessary to deliver 300,000 net additional homes a year on average by the mid-2020s.”

Will that number be reached? What pressure will the Government be under from its supporters, at next week’s party conference and subsequently, to resile from that 300,000 target in the light of the Office of National Statistics’ statistical bulletin, household projections in England published this month?

After topdown targets for individual authorities, derived from regional plans directly overseen by government, were abolished by the incoming 2010 coalition government, the 2012 NPPF has required each local authority to work out for itself, without any centrally prescribed methodology, what the objectively assessed need for housing is in its area. That quickly proved to be a recipe for complexity, uncertainty, local politicking and delay.

So the Government has been trying since 2015 to arrive out how to arrive at a simpler system that isn’t seen as centrally prescribed. As set out in my 20 September 2017 blog post Housing Needs: Assessed Or Assumed?, the Government decided to consult on a new “standard method” which would provide authorities with a minimum figure, desired from a formula based on household projections, local affordability and a cap on the extent of any increase deriving from the new formula.

Alongside its 14 September 2017 consultation document it published a spreadsheet showing “indicative” figures that would result for each authority from the new method, draft figures which it warned should be “treated with caution“. The total number totted up to 266,000 – a number that made the 300,000 look like a decent stretch target.

All admirably transparent and fascinating at the time, but surely in retrospect it was not helpful to publish those figures, particularly given that it was also stated that the new standard method would apply to local plans that weren’t submitted for examination by the later of 31 March 2018 and publication of the new NPPF?

Numbers drive actions. For some authorities there was clearly an immediate incentive to rush to submit their plan before the standard method was imposed, for others quite the reverse. We have seen corners cut by some authorities in their haste and the position became even more confused once (1) the possible 31 March 2018 deadline became, once the new NPPF was published containing a six months’ grace period, 24 January 2019 and (2) it became clearer that the figures and methodology were liable to change in any event.

The numbers were always likely to change given that the September 2017 household formation projections were arrived at by MHCLG using date going back to 1971 and the task for arriving at the final numbers was to be given to the Office of National Statistics, who would use the 2016-based population projections published in May 2018. When the ONS published its proposed methodology in June 2018 it became clear that ONS would only use trends in household formation back to 2001. Lichfields were expressing concerns about the likely consequences in a 27 June 2018 blog post:

We know that in the decade 2001-11 housebuilding fell to its lowest level and household formation amongst young adults changed significantly. If the new household projections only draw upon this (relatively) short term trend for projecting future household growth, is there a significant risk of ‘baking-in’ trends which are not reflective of future ‘need’ but simply an illustration of what the number would be if we continued more of what has been before?

ONS had consulted on its approach in 2017, and many respondents (including Lichfields) pointed out the need for the methodology to reflect not just a ‘purist’ demographic approach, but reflect on the real-world implications for housing need. Suggestions were made that ONS might wish to consider producing local ‘variant’ projections (as DCLG used to do at a national level) with modified formation rates as the basis for the standard methodology. It does not appear ONS intends to follow this advice.”

To be fair, the Government was not blind to what was likely to happen. As I set out in my 5 August 2018 blog post Housing Needs, Housing Shortfalls, when it published the final version of the NPPF on 24 July 2018, it published on the same dayits response document to the consultation on the draft, with this passage:

A number of responses to this question provided comment on the proposed local housing need method. The government is aware that lower than previously forecast population projections have an impact on the outputs associated with the method. Specifically it is noted that the revised projections are likely to result in the minimum need numbers generated by the method being subject to a significant reduction, once the relevant household projection figures are released in September 2018.

In the housing white paper the government was clear that reforms set out (which included the introduction of a standard method for assessing housing need) should lead to more homes being built. In order to ensure that the outputs associated with the method are consistent with this, we will consider adjusting the method after the household projections are released in September 2018. We will consult on the specific details of any change at that time.

It should be noted that the intention is to consider adjusting the method to ensure that the starting point in the plan-making process is consistent in aggregate with the proposals in Planning for the right homes in the right places consultation and continues to be consistent with ensuring that 300,000 homes are built per year by the mid 2020s.”

So, as at July the position was that updated household projection figures would be released in September and the Government would then “consider adjusting the method after the household projections” and would “consult on the specific details of any change at that time.

The updated figures were indeed then published, on 20 September, and show significant downward movements in the projections for individual authorities and an overall decrease in the total required, from 266,000 to 213,000. There has been a quick succession of excellent blog posts from planning consultancies, going into the statistical detail and likely implications, including (with apologies to those I don’t mention) Bidwells, Barton Willmore, Turley and Lichfields. There have inevitably also been many calls from objectors to housing numbers within emerging local plans for those numbers to be reviewed in the light of the new figures.

But the goalposts haven’t moved (yet). I assume that the Government will now indeed consult on changes to the standard method to increase numbers back within spitting distance of the 300k. There is surely no point in any authority taking any steps in reliance on the September 2018 ONS figures, but then again the September 2017 MHCLG figures have a large question mark against them. If you are an authority looking to make progress with your plan with a view to submission after 24 January 2019 you really have very little to go on as to the approach to be adopted.

So it is urgent that the Government consults as to proposed changes to its methodology and what that is likely to mean for individual authorities – although that consultation paper is going to end up running very close up to the 24 January 2019 date, leaving very little time for, er, planning.

Furthermore, I’m not sure that the ONS numbers are going to be standing still. As Planning magazine have identified in their useful coverage of the new numbers, ONS’ analysis that accompanies their figures makes it clear that it is aware of some of the deficiencies in the data. It refers to responses to consultation on its proposed methodology:

There was a view that only using the 2001 and 2011 Censuses would result in a downward trend in household formation for the younger age groups, which in turn would downplay the need for housing for younger people. With these views in mind, Section 8 shows the results of sensitivity analysis in which 2014-based HRRs (projected using 1971 to 2011 Census data) are applied to the 2016-based subnational population projections (SNPPs), should users wish to investigate the impact of the change of HRR methodology on the household projections.”

ONS is also “planning to publish a set of variant 2016-based household projections in which household formation rates for younger adults (those aged 25 to 44 years) are higher – provisionally scheduled for 3 December 2018. The purpose of this variant would be to illustrate the uncertainty in the projections around the future household formation patterns of this age group.”

You numbers people will know better than me whether this is also likely to have an appreciable effect on the numbers, at least in some areas.

But it does seem odd that in order to gauge the level of housing need, in order finally to look to put right the increasing shortage and unaffordability of housing, the starting point has been to look at the rate at which people have been able to form households in particular areas, during that very period where lack of supply and high prices have led to them sharing with others or not moving from the parental home – or, in areas of particularly high demand and/or restraint, not having a hope of living near their family or job (or the job that they would seek were suitable affordable accommodation available).

There is now the dilemma at a national level that echoes the dilemma that local plan inspectors have had to grapple with at an individual authority level: whether to accept a coarse, hypothetical approach that can be implemented with relative ease or whether to insist on getting to a “pure” statistical answer. The latter may in my view be unrealistic: we need targets, with consequences if they are not met and we need to avoid giving convenient excuses for delay. Those targets need to be based on the best evidence but are ultimately political choices where national leadership is essential – this is not a local issue where individual authorities can operate without regard for wider consequences.

I would be disappointed if the Government, faced in any event with the prospect of not meeting its current target (which conveniently is expressed in any event by reference to a time frame, the “mid-2020s“, that takes it past the next election), were to see this current position, which should be a surprise to no-one, as an excuse to retreat from the 300k commitment. But they won’t get an easy ride from some I’m sure.

Simon Ricketts, 29 September 2018

Personal views, et cetera

Housing Needs, Housing Shortfalls

We’ve got five years, my brain hurts a lot

We’ve got five years, that’s all we’ve got

(David Bowie)

The new NPPF introduces the requirement for local planning authorities to use a standard method to arrive at their local housing needs assessment, “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.”

However, the precise methodology and authority by authority figures are still a moving target. The Government said this in its “response to consultation” document, published alongside the new NPPF:

A number of responses to this question provided comment on the proposed local housing need method. The government is aware that lower than previously forecast population projections have an impact on the outputs associated with the method. Specifically it is noted that the revised projections are likely to result in the minimum need numbers generated by the method being subject to a significant reduction, once the relevant household projection figures are released in September 2018.

In the housing white paper the government was clear that reforms set out (which included the introduction of a standard method for assessing housing need) should lead to more homes being built. In order to ensure that the outputs associated with the method are consistent with this, we will consider adjusting the method after the household projections are released in September 2018. We will consult on the specific details of any change at that time.

It should be noted that the intention is to consider adjusting the method to ensure that the starting point in the plan-making process is consistent in aggregate with the proposals in Planning for the right homes in the right places consultation and continues to be consistent with ensuring that 300,000 homes are built per year by the mid 2020s.”

Inevitably, with change comes uncertainty as to how the new policies will be applied to applications and plans which are currently in the pipeline. There are three key transitional arrangements:

⁃ “The policies in the previous Framework will apply for the purpose of examining plans, where those plans are submitted [for examination] on or before 24 January 2019” (paragraph 214)

⁃ “The Housing Delivery Test will apply from the day following the publication of the Housing Delivery Test results in November 2018” (paragraph 215)

⁃ “The policies in this Framework are material considerations which should be taken into account in dealing with applications from the day of its publication” [ie 24 July 2018] (paragraph 212).

I want to look at a few specific issues of interest (to me at least):

The application of the new NPPF to the draft London Plan

The footnote to paragraph to paragraph 214 is more specific than the draft, in making it clear that the equivalent cut-off date for the London Plan is “the point at which the Mayor sends to the Panel copies of all representations made in accordance with regulation 8(1) of the Town and Country Planning (London Spatial Development Strategy) Regulations 2000“, meaning that the current Draft London Plan, for which a Panel of three inspectors has been appointed to hold an examination in public late this year, will be tested against the 2012 NPPF.

As underlined in his 27 July 2018 letter to the London Mayor, even when it is tested against the 2012 NPPF the Secretary of State is “not convinced” that the assessment of need in the current draft “reflects the full extent of housing need in London to tackle affordability problems.” He is looking to see modifications on a series of matters:

⁃ “A number of policy areas in the draft that are inconsistent with national policy, such as your policies allowing development on residential gardens and your policy on car parking. [NB whilst these might be areas of political difference they are not areas where the MHCLG’s approach would drive up numbers – far from it]

The detail and complexity of the policies within the draft London Plan have the potential to limit accessibility to the planning system and development.

⁃ The draft Plan strays considerably beyond providing a strategic framework.

⁃ The draft Plan does not provide enough information to explain the approach you will take to ensure your targets are delivered, including collaboration with boroughs and neighbouring areas.

⁃ There are a number of policies in the draft Plan which seek to deal with matters relating to building standards and safety. It is important that there is a consistent approach to setting building standards through the framework of Building Regulations

But, presumably as a quid pro quo for not sending the plan back to the drawing board to be tested against the methodology for assessing housing need in the new NPPF (which would arrive at significantly higher need figures than the basis for the draft plan), the Secretary of State is looking for the Mayor to review and revise the plan as soon as it is adopted:

It remains crucial however that you bring forward a revised London Plan that has regard to new national policies at the earliest opportunity. You will want to note paragraph 33 and annex 1 of the revised National Planning Policy Framework, which sets out that the Government expects plans to be reviewed early where all identified housing need is not being met and to ensure a plan is in place which reflects current national policy. I would therefore expect you to review the London Plan to reflect the revised National Planning Policy Framework immediately once the London Plan has been published. I remind you that if this is not forthcoming, I have powers to direct the review to ensure London delivers the plan and homes that communities need.”

Of course, since the current draft is not likely to be adopted until late 2019 and Sadiq Khan’s current term ends in May 2020, this will presumably increase the potential for politicking as between candidates and parties. Not good for consensus building, or perhaps other kinds of building, although if a new plan does not come forward presumably we can expect to see more MHCLG intervention in relation to major applications in London.

Other plans submitted for examination before 24 January 2019

Nothing in planning is of course black and white. Paragraph 214 of the new NPPF says that plans submitted for examination before 24 January 2019 will still be tested against the 2012 NPPF, but of course the 2012 NPPF allowed significant room for argument as to what the appropriate methodology might be for any authority “to use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework“. To what extent might inspectors allow the new standard method to be used for plans submitted before 24 January 2019?

Already since the publication of the new NPPF we have seen the East Cambridgeshire local plan inspector, Louise Nurser, issue her preliminary findings in a letter dated 30 July 2018 in which she accepts that the use of the new standard methodology is appropriate “in the particular circumstances of East Cambridgeshire” even though the plan was plainly submitted well before the relevant date. I set out her reasoning below:

“I conclude that it is a sound approach for the standard method to be used to set the OAN for housing within East Cambridgeshire at a minimum of 11,960 dwellings between 2016 and 2036. Indeed, in the context of a Strategic Housing Market Assessment (PE05) of considerable vintage (2013), which had already been used as the primary evidence base for the development strategy which is to be superseded by the Plan before me, it would not have been appropriate to update the evidence base in isolation of the wider HMA, so that it could be used a second time. Ideally, for the purposes of this plan, the housing needs of the wider Housing Market Area would have been thoroughly considered through a new Housing Market Assessment.

However, it is clear from the different stages in which the constituent plan making bodies find themselves that such a scenario would be unrealistic, particularly in the context of the clear indication from the recently published Framework that the standard method should be used in plan making in the future, and as a consequence, it is highly improbable that a completely new HMA would ever be commissioned.

I draw particular comfort from the fact that the annual dwelling requirement using the revised OAN figure of October 2016, for the district, which is based on the SHMA, is 586 dwellings per annum (PE06). This is comparable with the figure of 598 dwellings per annum, using the standard method (PE07). As such, the use of the standard method to determine East Cambridge’s housing needs is an acceptable and a pragmatic approach to determining the district’s needs. In coming to this conclusion, I must stress that my conclusions relate to the particular circumstances of East Cambridgeshire, which has already adopted a plan on the basis of the 2013 SHMA evidence.

I can see that there does not seem to be a significant difference in the case of East Cambridgeshire as to the outcome under the two approaches, but is her reasoning essentially, as she says, pragmatic – it would have been impractical to expect the 2013 strategic housing market assessment to have been updated as a base for the new plan? Might this be a position that various other authorities find themselves in? Does the new standard method amount to an appropriate evidence base for these purposes?

What now of the tilted balance?

Paragraph 11 of the new NPPF of course contains an amended form of what was paragraphs 14 and 49 of the 2012 document, the presumption in favour of sustainable development (or the “tilted balance” in the jargon) which applies where there is a shortfall in housing supply.

There is a shortfall where:

⁃ the “local planning authority cannot demonstrate a five year supply of deliverable housing sites” (with a 5 to 20% buffer – see paragraph 73); or where

⁃ (for decisions after the publication of the Housing Delivery Test results in November 2018) the Housing Delivery Test indicates that the delivery of housing was substantially below the housing requirement over the previous three years (with “substantially below” defined in paragraph 215 – starting at 25% of what is required and ratcheting up first to 45% and then to 75%).

Where there is a shortfall, the “policies which are most important for determining the application” are deemed to be out of date, meaning that planning permission should be granted unless (i) the application of policies in the NPPF that protect a defined list of categories of areas or assets of particular importance provides a clear reason for refusing the development proposed or (ii) “any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed the policies in this Framework taken as a whole“.

In my view this wording is clearer than the 2012 NPPF and should be easier to apply.

However, the effects of a shortfall are much reduced where there is a neighbourhood plan (which, after 11 December 2018, must be less than two years old) which contains policies and allocations to meet its identified housing requirement, the local planning authority has at least a three year supply of deliverable housing sites and the authority’s housing delivery was at least 45% of that required over the previous three years (25% until December 2019). (See paragraphs 14 and 216). In these circumstances, “the adverse impact of allowing development that conflicts with the neighbourhood plan is likely to significantly and demonstrably outweigh the benefits“.

Relevance of degree of shortfall

In deciding an appeal against the refusal of planning permission for housing development, how far does the decision-maker have to go in calculating the extent of any shortfall in the five-year supply of housing land? That was precisely the question considered last week by the Court of Appeal in Hallam Land Management Limited v Secretary of State (Court of Appeal, 31 July 2018). The case concerns the policies within the 2012 NPPF but the principles are just as applicable to the new NPPF.

In his decision letter dated 9 November 2016 the Secretary of State had dismissed an appeal by Hallam Land against refusal of planning permission by Eastleigh Borough Council for a development of up to 225 dwellings, a 60-bed care home and 40 care units together with associated development in Hamble.

His conclusions as to the degree of shortfall in housing supply simply stated this:

The Secretary of State notes the Inspector’s comment (IR108) that at the time of inquiry the Council were not able to demonstrate more than a four and a half years supply of deliverable housing land, and that there is evidence of an existing need for affordable housing. Whilst the Secretary of State notes that the Council are now of the view that they are able to demonstrate a 4.86 year supply...”

Weighing this shortfall into the balance he dismissed the appeal on the basis that the adverse impacts of the proposal would significantly and demonstrably outweigh its benefits.

Had he reached a properly reasoned decision on the housing supply question or had he just ducked it? At the inquiry there had been much argument as to the extent of housing supply. Hallam asserted that it was between 1.78 and 2.92 years. In post inquiry representations, the council asserted that the figure was now 4.86 years. However two inspectors’ appeal decisions in the borough had concluded otherwise. In the 24 May 2016 Bubb Lane decision letter the inspector had found that the council had a “considerable way to go to demonstrate a five year supply of deliverable sites”. In the 7 October 2016 Botley Road decision letter the inspector had concluded that there were 4.25 years of supply.

It is not necessary for the decision maker to arrive at a precise conclusion as to the level of shortfall. As Lindblom LJ states:

Relevant authority in this court, and at first instance, does not support the proposition that, for the purposes of the appropriate balancing exercise under the policy in paragraph 14 of the NPPF, the decision-maker’s weighting of restrictive local plan policies, or of the proposal’s conflict with such policies, will always require an exact quantification of the shortfall in the supply of housing land.

Accordingly, Lindblom LJ did not “think that in this case the Secretary of State could fairly be criticized, in principle, for not having expressed a conclusion on the shortfall in the supply of housing land with great arithmetical precision. He was entitled to confine himself to an approximate figure or range – if that is what he did. Government policy in the NPPF did not require him to do more than that. There was nothing in the circumstances of this case that made it unreasonable for him in the “Wednesbury” sense, or otherwise unlawful, not to establish a mathematically exact figure for the shortfall. It would not have been an error of law or inappropriate for him to do so, but if, as a matter of planning judgment, he chose not to do it there was nothing legally wrong with that.”

It was not clear “whether the Secretary of State reached any concluded view on the scale of the “acknowledged shortfall”. His reference in paragraph 17 to “the limited shortfall in housing land supply” suggests he had not found it possible to accept Hallam Land’s case at the inquiry, as recorded by the inspector in paragraph 62 of his report, that the supply of housing land was as low as “2.92 years, or 1.78 years if the need for affordable housing is included”, or even the “material shortfall” to which the inspector had referred in paragraph 108, in the light of the council’s concession that it was “not able to demonstrate more than a four and a half years supply of deliverable housing land”. A “limited shortfall” could hardly be equated to a “material shortfall”. It would have been a more apt description of the shortfall the council had now acknowledged in conceding, or contending, that it was able to demonstrate a supply of 4.86 years – the figure to which the Secretary of State referred in paragraphs 19 and 30 of his decision letter.”

If he did adopt, or at least assume, a figure of 4.86 years’ supply of housing land, or even a range of between four and half and 4.86 years, his approach could not, I think, be stigmatized as unlawful in either of those two respects. It could not be said, at least in the circumstances of this case, that he erred in law in failing to calculate exactly what the shortfall was. In principle, he was entitled to conclude that no greater precision was required than that the level of housing land supply fell within a clearly identified range below the requisite five years, and that, in the balancing exercise provided for in paragraph 14 of the NPPF, realistic conclusions could therefore be reached on the weight to be given to the benefits of the development and its conflict with relevant policies of the local plan. Such conclusions would not, I think, exceed a reasonable and lawful planning judgment.”

However, “even if that assumption is made in favour of the Secretary of State, there is in my view a fatal defect in his decision in his failure to engage with the conclusions on housing land supply in the recent decisions in the Bubb Lane and Botley Road appeals.”

In both decision letters the shortfall was characterized as “significant”, which plainly it was. This was more akin to saying that it was a “material shortfall”, as the inspector in Hallam Land’s appeal had himself described it in paragraph 108 of his decision letter. Neither description – a “significant” shortfall or a “material” one – can be squared with the Secretary of State’s use of the adjective “limited”. They are, on any view, quite different concepts.”

“Quite apart from the language they used to describe it, the inspectors’ findings and conclusions as to the extent of the shortfall – only “something in the order of four year supply” in the Bubb Lane appeal and only “4.25 years’ supply” in the Botley Road appeal – were also substantially different from the extent of the shortfall apparently accepted or assumed by the Secretary of State in his decision in this case, which was as high as 4.86 years’ supply on the basis of evidence from the council that had been before the inspector in the Botley Road appeal and rejected by him.”

“One is left with genuine – not merely forensic – confusion on this important point, and the uncomfortable impression that the Secretary of State did not come to grips with the inspectors’ conclusions on housing land supply in those two very recent appeal decisions.”

In a short judgment, agreeing with the lead judgment of Lindblom LJ, Davis LJ makes the position plain:

I have the greatest difficulty in seeing how an overall planning judgment thereafter could properly be made without having at least some appreciation of the extent of the shortfall. That is not to say that the extent of the shortfall will itself be a key consideration. It may or not be: that is itself a planning judgment, to be assessed in the light of the various policies and other relevant considerations. But it ordinarily will be a relevant and material consideration, requiring to be evaluated.

The reason is obvious and involves no excessive legalism at all. The extent (be it relatively large or relatively small) of any such shortfall will bear directly on the weight to be given to the benefits or disbenefits of the proposed development.”

The decision was quashed.

Was David Bowie writing for the Secretary of State, or for all of us?

My brain hurt like a warehouse, it had no room to spare

I had to cram so many things to store everything in there

Simon Ricketts, 5 August 2018

Personal views, et cetera

The NPPF & Eleven Other Documents Published By MHCLG On 24 July 2018

I declare after all there is no enjoyment like reading!” (Jane Austen)

Happily the House of Commons did not after all rise a few days early, because on the last day before the summer recess the revised NPPF was duly published as the Secretary of State James Brokenshire had promised.

We have since all been busy getting to grips with what it all means – an urgent task given that its policies have immediate effect in relation to the determination of planning applications and appeals (whilst for plan-making the document is only relevant in relation to plans submitted for examination after 24 January 2019). I have already seen many good online summaries and blog posts as to the substance of the document and there are plenty of issues to delve into in coming months. The purpose of this post is simply to provide links to the various documents that were published by MHCLG alongside the NPPF.

Alongside the publication of the NPPF itself, there was a press release, “Government’s new planning rulebook to deliver more quality, well-designed homes“, as well as James Brokenshire’s short written ministerial statement, entitled “housing policy” (although the NPPF is of course about far more than housing and is hardly a “rulebook”).

There is no official marked up version showing the changes that have been made to the 2012 version or to the March 2018 draft, although various of us have our own internal versions – after all the detailed wording matters. Whilst the Government has published its response to the draft revised National Planning Policy Framework consultation, setting out its summary of consultation responses received to the March draft and “the Government’s view on the way forward“, the document only identifies the main substantive changes (not for instance the expunging of references to European Union directives – of no substantive relevance but an interesting reminder that the new NPPF may outlive our membership of the European Union).

The response document is interesting for some of the pointers it provides as to further guidance that may be on the way. For instance, in relation to:

⁃ ensuring the vitality of town centres: “The support for the policy changes is welcomed and the Government intends to implement the changes as set out in the consultation. On the specific request for clarity in relation to ‘reasonable period’, further advice will be set out in updated national planning guidance to assist with the application of the policy. ”

⁃ making effective use of land: “We will publish national planning guidance to enable local authorities to maximise opportunities that arise from delivering increased densities.

⁃ the implications of the European Court of Justice’s People Over Wind judgment, bearing in mind that the draft NPPF (substantively unchanged in the final version) disapplies the presumption in favour of sustainable development where appropriate assessment is required, which will more frequently be the case as a result of the judgment): “The Government notes representations it has received on the impact of the People Over Wind judgement. The Government notes that this judgement concerns both the Habitats Regulations and the Framework. The Government is examining the implications of this judgement closely and is not proposing any changes to the Framework at this stage. ”

⁃ conserving and enhancing the historic environment: “We have also revised the reference to ‘optimum viable use’ and will set out in guidance where its use could be appropriate. We note the concerns about clarifying the policy approach to the assessment of the impact of proposed development on the significance of heritage assets and we will consider this issue further in revising national planning guidance.”

⁃ the definition of “deliverable” in the light of recent case law: “The Government has considered whether the definition of ‘deliverable’ should be amended further, but having assessed the responses it has not made additional changes. This is because the wording proposed in the consultation is considered to set appropriate and realistic expectations for when sites of different types are likely to come forward.”

So, plainly, work is still very much in hand in updating the Planning Practice Guidance and other advice. So far, two main sections have been updated, namely those relating to:

housing and economic development needs assessments (albeit with further guidance to come); and

viability

MHCLG has also published its “Housing Delivery Test Measurement Rule Book“, setting out its method “for calculating the Housing Delivery Test result“.

Aside from the above summer reading we have also been given some homework. MHCLG has now published a call for evidence in relation to the Independent Review of Planning Appeal Inquiries chaired by Bridget Rosewell. The deadline for responses is 18 September 2018.

The call for evidence is accompanied by some fascinating additional material which will no doubt be the subject of a future blog post, namely:

Key appeal statistics

Planning appeal statistics

Planning appeals inquiries process timeline (illustrative)

Annex – Case Studies which provide illustrations of when delays in the process can occur

What is right to be done cannot be done too soon.” (Jane Austen)

Simon Ricketts, 25 July 2018

Personal views, et cetera

Challenging Plans Before They Are Hatched

Can you challenge a draft local plan in the High Court before it is submitted to the Secretary of State for examination? When does the ouster in section 113 of the Planning and Compulsory Purchase Act 2004 kick in, which prevents development plan documents from being “questioned in any legal proceedings” except by way of an application for leave made before the end of six weeks beginning with the date that the document is adopted by the local planning authority?

These ouster provisions in legislation cause problems. For instance, in my 4 February 2017 blog post Hillingdon JR: Lucky Strike Out?, I reported on a case where the equivalent provision in relation to challenges to national policy statements under the NSIPs regime was relied upon to strike out a challenge to the Government’s announcement of a decision to publish a draft airports NPS.

R (CK Properties (Theydon Bois) Limited) v Epping Forest District Council (Supperstone J, 29 June 2018) concerned a challenge by a developer to Epping Forest District Council’s decision on 14 December 2017 to proceed with regulation 19 consultation of the submission version of its draft local plan prior to its submission to the Secretary of State for examination.

For those not familiar with the process, in summary authorities first have to carry out consultation in relation to their proposed development plans under Regulation 18 of the Town and Country Planning (Local Planning) (England) Regulations 2012 and take that consultation into account in preparing a revised version either for further Regulation 18 consultation or, if they consider that the document is ready for examination, for submission to the Secretary of State – in which case they must then carry out further consultation, under Regulation 19, before submitting the plan along with the representations received in response to that further consultation.

Remember back when many local planning authorities were racing to submit their local plans before a deadline of 31 March 2018, when the Government was indicating that its proposed standardised methodology for assessing housing needs would need to be used for plans submitted after that date? Of course that date then slipped with the delays to the draft revised NPPF to a date which will now be six months after the new NPPF is published but that’s another story.

Epping Forest was one of those authorities rushing to submit its plan, a district where the new standardised methodology would apparently increase the required housing provision over the plan period from some 11,400 to 20,306 homes. Some difference.

CK Properties have a site which was not allocated for residential development. Its complaint in the legal proceedings was that the appendix to the council’s site selection report that assessed the various sites considered for allocation and explaining its reasoning was not available at the time the council made its decision to consult on the submission version of its plan, despite assurances in its statement of community involvement that such background documents would be made available. The claimant secured an order from the Planning Court on 20 March 2018 restraining the council from submitting the plan for examination until the claim had been determined.

At the full hearing, the council sought to argue that regardless of the position in relation to the matters complained of, the effect of section 113 was that any challenge would have to await adoption of the plan.

It’s an important issue – can those aggrieved by a decision by a local planning authority to submit its plan to the Secretary of State for examination, challenge that decision by way of judicial review or do they have to store up their complaint until the plan is finally adopted?

The High Court had previously considered a challenge to a decision taken at an earlier stage in the development plan process in The Manydown Company Limited v Basingstoke and Deane Borough Council (Lindblom J, 17 April 2012), allowing judicial review proceedings to be brought of a decision by a council to approve a pre-submission draft core strategy for consultation (the equivalent of what is now the regulation 18 stage under the 2012 Regulations). The judge postulated that the position might be different in relation to the submission draft of a plan but considered that section 113 did not preclude challenges to pre-submission drafts.

Indeed the judge saw good sense not closing out the potential for an early challenge:

In a case such as this, an early and prompt claim for judicial review makes it possible to test the lawfulness of decisions taken in the run-up to a statutory process, saving much time and expense – including the expense of public money – that might otherwise be wasted. In principle it cannot be wrong to tackle errors that are properly amenable to judicial review, when otherwise they would have to await the adoption of the plan before the court can put them right.”

The High Court had also considered in IM Properties Development Limited v Lichfield District Council (Patterson J, 18 July 2014) the different question as to whether judicial review proceedings could be brought in relation to main modifications to a local plan or whether the challenge could only be brought post plan adoption by way of section 113. The court determined that the latter position was correct:

Once a document becomes a Development Plan document within the meaning of section 113 of the 2004 Act the statutory language is clear : it must not be questioned in any legal proceedings except in so far as is provided by the other provisions of the section. Sub-section (11)(c) makes it clear that for the purposes of a Development Plan document or a revision of it the date when it is adopted by the Local Planning Authority is the relevant date from when time runs within which the bring a statutory challenge.

It is quite clear, in my judgment and not inconsistent with the Manydown judgment, that once a document has been submitted for examination it is a Development Plan document. The main modifications which have been proposed and which will be the subject of examination are potentially part of that relevant document. To permit any other interpretation would be to give a licence to satellite litigation at an advanced stage of the Development Plan process.”

Having considered the scope of section 113 and these two previous authorities (neither covering the situation of an authority’s decision to proceed with a submission draft plan), Supperstone J concluded that the authority’s decision to prepare for submission of the plan could indeed be challenged by way of judicial review and was not closed out by section 113.

Whilst the claim ultimately failed because the judge did not find any of the grounds of challenge to be made out, the potential implications of the ruling are significant. There is very clearly now a window for judicial review of a local planning authority’s decision to embark on regulation 19 consultation (the formal precursor to submission of the plan for examination). The window closes when the plan is submitted for examination and any subsequent challenge can only be brought once the plan has been adopted. If there are clear grounds for challenge (for instance on the basis of procedural failings in the process to that date) why wait for submission of the plan and its eventual adoption? Indeed, might claimants challenging an adopted plan be criticised and even denied relief if they could have brought proceedings at the earlier stage?

Whilst there is something to be said for the Lindblom LJ (as he now is) view, expressed in Manydown, that early challenge (rather than having potential challenges stored up) can be a good thing, it can surely also be a bad thing if it slows down the process, particularly if, as is so often the case, the challenge is ultimately dismissed.

I assume that one reason why the claimant brought the early challenge in Epping Forest, and secured the interim order obtained from the court preventing submission of the plan until the full hearing had taken place into the challenge, was to seek to ensure that the plan was not submitted until the deadline had passed after which the Government’s standardised methodology for assessing housing needs had been introduced – given that the new methodology would require additional housing sites to be found. However, such have been the delays with the introduction of that methodology and such has been the speed of the court process to date (I do not know whether permission to appeal is being sought) it is very likely that the council will still be in a position to submit its plan on the basis of the old methodology.

Simon Ricketts, 30 June 2018

Personal views, et cetera