Category: London

4 Key Asks For The London Housebuilding Support Package Consultation

Most chats this week have been about the 23 October 2025 homes for London policy note.

tl;dr summary: positive direction but concerns about potential complexities, uncertainties and as to whether it will all be in place speedily enough.

We’re all now waiting for the consultation to start “over six weeks from November” (fair play, at least no “by the end of Autumn” fudge).

There are plenty of detailed issues arising, and differing interests will want to re-prioritise the measures in different ways, but I thought I would set out four key asks that I have, which in my view should be specifically addressed in the consultation documents:

  1. Should there be more focus on stalled sites that already have planning permission?

This is the lowest hanging fruit. And yet all we have (in paragraphs 33 and 34) is a reference to the potential for renegotiating previously agreed arrangements by way of deed of variation and discouragement as to the use of section 73.

This isn’t enough. I set out the current procedural constraints in my 18 October 2025 blog post London Stalling.

Procedurally, bar reintroducing section 106BA or, for a temporary period, amending section 106A to reduce the 5 years’ requirement, at the very least we need:

  • Specific encouragement for local planning authorities to accept developers’ requests to engage with the process of varying existing agreements where specific criteria (consistent with the direction of the policy note) are met, linked to some sort of oversight, monitoring and/or route for complaint where authorities refuse to engage (given that unless your section 106 agreement is at least five years’ old, or unless this is in the context of a section 73 application (of which more in a moment) there is no right of appeal on the part of the developer)
  • Not the current suggestion that the section 73 process “should no longer be used as an alternative means of reconsidering fundamental questions of scheme viability or planning obligations” but rather a proper recognition of the real challenge of keeping planning permissions, and associated planning obligations packages, up to date as against changing circumstances and the important role that section 73 plays in this. Attempts to make currently unviable schemes viable invariably involve an intertwined mix of scheme changes and changes to planning obligations. Section 73B, introduced by the Levelling-up and Regeneration Act 2023, is less useful as only the implications of the proposed changes are to be taken into account rather than considering the amended proposal holistically against the current development plan and other material considerations. This all needs to be connected up with the continuing problem that Hillside creates for amendments to projects (I was pleased to see Baroness Taylor confirm this week, on behalf of the government, in response to Lord Banner’s tabled amendment to the Planning and Infrastructure Bill, that the government will “explore with the sector” a “statutory role for drop-in permissions to deal with change to large-scale developments”. This is so important!).
  1. Is late stage (as opposed to early stage) review necessary in relation to the proposed “time-limited planning route”?

In basic summary, this route is where a residential scheme can commit to at least 20% affordable housing with a 60/40 social rent/intermediate tenure split with planning permission issued by the end of March 2028. If the first floor of the scheme has not been built by 31 March 2030 (in the case of larger phased schemes, in the case of any phase where the first floor of buildings providing at least 200 dwellings has not been built by that date), “a late review will be undertaken once 75 per cent of homes within the scheme or the final phase are occupied to determine whether a higher contribution for affordable housing can be made”.

Why the late stage review mechanism in these circumstances, rather than the early stage review that is currently the case with fast track schemes that don’t achieve substantial implantation by the specified deadline under London Plan policy H5? Late stage reviews unnecessarily spook funders and lenders, leaving the eventual outcome too late in the process – and also having the public policy disbenefit of being too late to allow for any further affordable housing, that can be unlocked via the review, to be accommodated within the scheme. There is also inconsistency with paragraph 30 which suggests another approach for multi-phase schemes: “For multi-phase schemes, a review of the scheme will apply prior to the start of each phase for which the milestone in paragraph 27 has not been reached, to determine whether additional affordable housing can be provided in subsequent phases.”

Isn’t it better to keep things simple and follow, where possible, the existing mechanisms within policy H5, just with the thresholds temporarily reduced?

  1. Are there unnecessary difficulties with introducing a viability test into the proposed CIL relief?

Permissions which are secured via the new time-limited planning route that commence after the relief is in place and but before December 2028 will qualify for at least 50% relief from borough CIL (NB is this 50% after reliefs and exemptions have been applied and what will be the calibration to work out the higher level of relief where the scheme is delivering more than 20% affordable housing?), but the relief would be “contingent upon meeting proportionate qualifying criteria to ensure relief is targeted at schemes which would otherwise remain stalled or fail to come forwards, with a lower relief applicable where the full available amount is shown not to be warranted.” This sounds complicated. With this hurdle in place, not only would the developer not know whether they will qualify for the relief until planning permission is granted and they receive their liability notice, but it means that the purported advantage with the time-limited planning route of not having to undertake viability assessment is illusory, because the work will be needed in any event to secure the CIL relief – and the requirement will surely be very hard to turn into workable legislative drafting – we know how difficult exceptional circumstances relief is to secure due to the various criteria and requirements built into that particular mechanism.

  1. Are the proposed additional powers to be given to the Mayor enough?

Boroughs would be required to “refer planning schemes of 50 units or more where the borough is minded to refuse the application – this would be a more streamlined process operating alongside the existing referral threshold of 150 units which applies regardless of a borough’s intended decision, and would ensure that the Mayor was able to review whether the right decision had been reached in the context of the housing crisis.”

But there may well be cases where schemes are being held up at borough level, either pre-resolution or post resolution whilst for instance the section 106 agreement is being negotiated, and where securing planning permission by the end of March 2028 will be critical under this package of measures. Here, speedy intervention, or threatened intervention, by the Mayor could really help. So, for this time limited period at least, why not allow the Mayor to intervene at any time after the end of the statutory determination period in relation to any scheme comprising at least 50 dwellings? Otherwise, that absolute cut of the end of March 2028 for grant of planning permission will need to some flex built in to allow for the possibility of appeal etc.

I’ll confine myself to those four although I have others, and I know that you do too…

NB none of this is to be churlish as to the scale of the task that MHCLG and the GLA have before them. It is of course by no means easy to get this package right and to avoid unintended consequences.

Simon Ricketts, 1 November 2025

Personal views, et cetera

London Stalling

This one is about the current position with London (non) development and some thoughts about what procedural steps may be open to you if you are a London (non) developer with a planning permission for a scheme that is no longer viable to build out.

On 14 October 2025, Molior published figures for Q3 2025 construction starts and sales in relation to schemes in London with 25+ homes for private sale or rent. Apologies for the extensive quoting but their summary is clearer than anything I can write:

“Between 2015 and 2020, there were 60-65,000 homes for private sale or rent under construction in London at any given time.

Today, that number has fallen to 40,000 … and 5,300 of those are halted part-built.

With a surge of completions expected in 2026, Molior forecasts that just 15-20,000 new homes will be actively under construction on 1st January 2027.”

“London had just 5,933 new home sales in Q1-Q3 2025.

Sales rates are weak across all local markets and at every price point.

At prices up to £600 psf – the level at which most London owner-occupiers can buy – sales to individuals are virtually non-existent.”

“Build-to-rent completions are about to plunge.

Interest rates rose during 2022, then the Liz Truss budget pushed them higher.

This stopped new money from funding London multifamily development.

Completions are set to disappear after 2027 because construction starts fell in 2023 / 2024.”

“There were 3,248 private starts in Q1-Q3 2025.

London is now on track for fewer than 5,000 private construction starts in 2025.”

“Starts have been falling for a decade because sales rates and profitability have been falling for a decade.

Building Safety Regulator delays have made things worse in 2025.”

“Development is unviable across half of London.

Development costs are high, so it is unviable to build profitably in half of London – areas under £650 psf.

This is even if the land is provided free and there are no planning obligations like CIL and affordable housing.”

“London has 281,000 unbuilt permissions.

These numbers are private + affordable C3 permissions.

The numbers include outline consents, detailed consents and unbuilt phases of schemes partly under way.

Also included are projects successful at committee but still waiting S106 sign-off.”

Set all that alongside the homelessness and rough sleeping crises in London. The BBC reported yesterday that more than 132,000 households were living in temporary accommodation on 30 June 2025, up 7.6% from the same time last year. Aside from the human cost, this is of course at a huge financial cost for London boroughs: £740m ‘black hole’: London’s temporary accommodation crisis draining local resources (London Councils, 13 October 2025). And at the sharpest end: Number of people “living on the streets” of London increases by 26% (Crisis, 31 July 2025).

Whilst I try not to wear out my two typing-fingers commenting on press speculation about forthcoming announcements, I think we can assume that the government and the Mayor of London will soon be announcing various measures to try to turn this around or at least provide some sort of jump-start (note to government press team, I suggest that we are in “jump-start” rather than “turbo-charge” territory). See for example the Guardian’s 17 October 2025 piece London developers to be allowed to reduce percentage of affordable homes.

The spectre in the press pieces of some temporary reduction in developers’ threshold for qualifying for the Mayor’s fast-track (i.e. basically avoiding the need for formal viability appraisal and a late stage viability review mechanism if they can commit to a level of affordable housing which is usually 35%, with a policy-compliant split of affordable housing tenure types within that – see policy H5 of the London Plan for more detail) down to perhaps 20% is being seen by some as amounting to an actual reduction in the amount of affordable (and particularly socially rented) housing that will be developed.  But this analysis is unfortunately wrong: very few schemes are currently proceeding with 35% or more affordable housing.  Viability appraisals either agreed or accepted after scrutiny on appeal (this is not developers cooking the books) are already coming out at way less than 20%, let alone 35% (which is why simply reducing the threshold alone wouldn’t be enough). See for instance the inspector’s decision in relation to the Stag Brewery appeal (summarised in my 4 May 2025 blog post (7.5% affordable housing) and the 29 May 2025 decision letter in relation to a proposed tower block in Cuba Street (16.6% affordable housing). Nor is this a purely London phenomenon, if you recall last month’s Brighton Gasworks decision (summarised in my 27 September 2025 blog post) (zero affordable housing).

20%, plus the other measures being whispered about such as increasing subsidies for socially rented housing and/or allowing councils not to charge CIL, may tip the balance so as to turn some non-developers back into being developers again and thereby deliver more affordable housing (including socially rented housing) in absolute numbers (which is what counts after all) than is currently the case.

But what about the many schemes consented on the basis of 35% or more, that simply aren’t proceeding, at least beyond basic operations to keep the permission alive (see my 7 September 2025 blog post The Stressful & Sadly Often Necessary Task Of Keeping Planning Permissions Alive)?

If we look to amend existing, unviable, section 106 agreements, no longer do we have the benefit of section 106BA, a provision introduced in April 2013 via the Growth and Infrastructure Act 2013, to allow developers to apply to modify or discharge affordable housing obligations in Section 106 agreements where those obligations made a development economically unviable, and then repealed three years later in April 2016. That provision unlocked various stalled permissions at the time. Is it too late, or too unpalatable, for an amendment to the Planning and Infrastructure Bill simply to reintroduce it?

Instead, the main routes are:

  • If the section 106 planning obligation is at least five years’ old, a formal application to the local planning authority can be made under section 106 A of the Town and Country Planning Act 1990 on the basis that the relevant obligation, unless modified, “no longer serves a useful purpose”.  The test is expressed very generally which is unhelpful but the case would be that if the obligation is causing development, otherwise beneficial, not to proceed, it cannot be serving a “useful purpose”. There is the right of appeal to the Planning Inspectorate.
  • Seeking variation of section 106 planning obligations in the slip-stream of an application made under section 73 of the Town and Country Planning Act 1990 (an application, of course, for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted – and which is to be assessed against the current development plan and other material considerations). This was the route taken in the Cuba Street appeal I mentioned above. Full planning permission had been granted in December 2022. A section 73 application was made to amend the approved floor plans set out in the schedule referenced in condition 2 of that permission, to “provide an increase in the residential units from 421 to 434, and a reduction in the affordable housing (AH) provision from 100 (71/29 affordable rented to intermediate split as a ratio) to 58 (66/44 affordable rented to intermediate split as a ratio). In percentage terms the change in AH would be from 30.15 % to 16.6%. A consequence of these changes would be amendments to conditions 24 and 29, with respect to wheelchair accessible homes and cycle storage, given that they relate to the quantum of development subject to the original permission.”
  • Negotiating a deed of variation to the section 106 planning obligation, outside these formal procedures, without any recourse to appeal if the authority is resistant.
  • A fresh application for planning permission – utterly the nuclear option in times of cost, time and risk.

If there is indeed some form of announcement from MHCLG and the Mayor of London, I will be interested to see:

  • What is said about existing stalled permissions and any advice that is to be given to boroughs as to the approach they should take when approached by way of any of these procedural routes.
  • More generally, how will any announced (presumably temporary) relaxations with regard to the London Plan policy H5 threshold approach  or any other policy requirements sit as regards section 38 (6) of the Planning and Compulsory Purchase Act 2004 (“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise”)? Where there’s a will there’s a way but this is all another reminder, as if we needed it, that the process for reviewing and updating the London is so slow as not to be fit for purpose.

Oh and we still await MHCLG’s updated planning practice guidance on viability.

“London calling, at the top of the dial.

And after all this, won’t you give me a smile?”

Simon Ricketts, 18 October 2025

Personal views, et cetera

The Perfect KISS

I’m preparing to speak at a couple of events at UKREiif this week, I’m trying to finish reading a book,  I’m pleased that the Strategic Planning Group’s report Planning Positively for the Future has now been published (16 May 2025) and I’ve been dipping into the Mayor of London’s Towards a New London Plan consultation document (9 May 2025)

And the over-arching theme for me is Keep It Simple, Stupid.

The book is Abundance: How We Build A Better Future by Ezra Klein and Derek Thompson. A few people have mentioned it but what caused me finally to reach for my wallet was when Strategic Land Group’s Paul Smith recommended it on a 50 Shades of Planning podcast – he’s a good reader is Paul.

You might get the basic ideas from this Guardian review from which I quote the following passages:

Abundance for all of us, via an entirely possible techno-optimistic “future is behind schedule – and Abundance holds late 20th‑century liberalism responsible. (Klein and Thompson critique the right, too – they are themselves liberals – but this book speaks only to their co-partisans, with the downside of artificially telling just half the story). Liberals, Klein and Thompson say, nobly fought to redistribute what we have to those without, while losing sight of the goal of creating more to redistribute in the first place. Meanwhile, they sought to protect the public from the unchecked consequences of growth: the bulldozers of urban renewal and the pollution of industrialisation. They succeeded, but left the state too constrained to solve the challenges of today.”

“For example, they tell how California began studying high-speed rail, a clean and congestion-free alternative to cars and planes, more than 40 years ago. It took a decade for planning to begin in earnest; another decade-and-a-half to get funded; 16 years after that, it still doesn’t exist. High-speed rail has been swallowed by procedures erected to prevent every conceivable harm to every conceivable stakeholder. The environmental reviews needed just to describe the project’s impacts began in 2012; they still aren’t done. All the while, costs keep increasing.”

“In everything from planning regimes that block badly needed housing and solar farms, to the ossified processes for writing federal regulations and hiring civil servants, they see systems attuned to the harms of action and not its benefits, and convincingly argue that the rewards of reform are immense.”

“Klein and Thompson’s story of sclerosis is of a “system so consumed trying to balance its manifold interests that it can no longer perceive what is in the public’s interest.”

The sorry story of the Californian High Speed Rail project reads across precisely to HS2 and the book’s description of the sometimes-unintended sometimes-intended obstacles to housing development and green energy projects in many US states are only too familiar here.

The book makes a telling point about how “a complex society begins to reward those who can best navigate complexity”. Doesn’t that apply to many of us at UKREiif – not really a conference about how to build, but rather a conference about navigating the regulatory and other complexities to be sorted before anyone gets near an actual construction contract?

And, uncomfortable for me and other lawyers (already well rewarded for navigating complexity), there’s much in addition about the dead hand of “adversarial legalism”.

The KISS mantra was certainly front of mind for me when I was participating as the only lawyer member of the Strategic Planning Group. In designing for the reintroduction of strategic planning, via spatial development strategies, how to reduce the scope for mission creep in the documents, how to reduce ambiguity, duplication and delay, and how to arrive at a proportionate evidence base and examination process. Developing the 17 recommendations in the report was a superb, thoughtful but practical project, by way of six half day workshops and much work by chair Catriona Riddell and by the Prior + Partners team between the sessions and in writing it all up. Do let us know what you think.

I hope that once the National Development Management Strategies take shape we have a much more logical and non-duplicative cascade of NDMPs, SDSs, local plans and neighbourhood plans with as little duplication,  gold plating and unnecessary text as possible – and that one day soon the whole cascade will be available at the click of a button in relation to any site. Will we get there or, as a “complex society”, is simplicity beyond us?

The London Plan is of course an awkward example of a spatial development strategy. This is not what the new breed of SDSs should look and feel like at all. Indeed, my personal vision is that the key diagram for an SDS should tell the main story, as to broad locations for strategic growth,  infrastructure and the scale of housing development required in local plan areas. With previous iterations of the London Plan being so all-encompassing, is it really possible for the next version to be radically stripped back? I doubt it. But if it is not to be, could we at least avoid London Plan policies being duplicated (often in slightly different terms) and gold-plated in boroughs’ local plans? If a trade-off for the scale of the London Plan were to be much shorter borough plans that would be something. It will also be interesting to see what the new regime of NDMPs will mean for the London Plan.

Maybe see you in Leeds, KISS KISS.

Simon Ricketts, 18 May 2025

Personal views, et cetera

Bank Holiday Weekend Special: Mayors, Oxford Street, Stag Brewery

The election for the first London Mayor took place 25 years today, 4 May 2000. I learned this via a piece by Nick Bowes in LCA’s latest LDN newsletter.

It is a topical weekend to think back as to the influence of the three very different political figures who have been London Mayor: Ken Livingstone, Boris Johnson and Sadiq Khan. Even without the extent of devolved powers available to their counterparts in other world cities, they have been able to exert significant influence over the shape and operation of our capital city, particularly in relation to transportation and in relation to strategic planning, including in relation to individual development projects of “potential significant importance”.

As Labour rolls out its vision for Mayoral strategic authorities across the country, what are going to be the political consequences over time and for the shaping of those areas? My 18 January 2025 blog post Viva La Devolution sought to summarise what lies ahead in terms of devolution and the introduction of strategic planning, modelled (in legislative form at least) on the spatial development strategy (aka London Plan) model, with equivalent intervention powers to the London Mayor in relation to applications of potential strategic importance (the power to direct refusal or to take over as decision maker).

For example, Greater Lincolnshire is now of course a combined county authority, covering the Lincolnshire County Council, North East Lincolnshire Council and North Lincolnshire Council’s areas. On 1 May 2025, Reform party politician Dame Andrea Jenkyns was elected Mayor and will lead the authority, the other members being:

Constituent members: Six members appointed by the constituent councils. Agreed at the first GLCCA meeting on 6 March, these are:

  • Councillor Martin Hill OBE – Leader of Lincolnshire County Council
  • Councillor Patricia Bradwell OBE – Lincolnshire County Council Councillor
  • Philip Jackson – Leader of North East Lincolnshire Council
  • Councillor Stan Shreeve – North East Lincolnshire Council
  • Councillor Rob Waltham MBE – Leader of North Lincolnshire Council
  • Councillor Richard Hannigan – North Lincolnshire Council

Non-constituent members: Four people nominated by the district councils within the area. Agreed at the first GLCCA meeting on 6 March, these are:

  • Councillor Richard Wright – Leader of North Kesteven District Council
  • Naomi Tweddle – Leader of City of Lincoln Council
  • Craig Leyland – Leader of East Lindsey District Council
  • Nick Worth – Leader of South Holland District Council

Additional non-constituent or associate members: Up to two further members, including one of the police and crime commissioners for the area and another from a business background. Agreed at the first GLCCA meeting on 6 March, these are:

  • Marc Jones – Police and Crime Commissioner for Lincolnshire
  • Neal Juster- Interim Associate Member

What will all this mean for planning?

I had a brief look at Reform UK’s policy documents:

Aside from a whole page on scrapping the government’s net zero policies, this is all there is on planning, on housing:

“Review the Planning System

Fast-track planning and tax incentives for development of brownfield sites. ‘Loose fit planning’ policy for large residential developments with pre-approved guidelines and developer requirements.

Reform Social Housing Law

Prioritise local people and those who have paid into the system . Foreign nationals must go to the back of the queue. Not the front”.

It will be interesting to see how the new authority engages with the process of preparing a spatial development strategy in due course and the extent to which the process will be used a wider political platform. Social media posts from Reform’s deputy leader and MP for Boston and Skegness (Lincolnshire of course) and from Dame Andrea Jenkyns perhaps give a flavour of what is in store:

  • Conflict with the government on national policy issues:
  • Influence in relation to wider political/cultural issues:

Of course it must be said that each of our London Mayors have used their role from time to time in equivalent ways!

Turning back to London, one long-running east-west scar across the centre of the capital has been Oxford Street. I wrote in my 21 September 2024 blog post Street Robbery about the Mayor’s 17 September 2024 announcement that he is to create a Mayoral Development Corporation to “transform Oxford Street, including turning the road into a traffic-free pedestrianised avenue” so that it can “once again become the leading retail destination in the world”. Since then a public consultation process was launched on 28 February 2025 which closed on 2 May 2025. For a detailed, authoritative account of the last hundred years of managing transport on Oxford Street, which puts the current proposals into context, I strongly recommend you read an On London blog post published today, 4 May 2025, by Paul Dimoldenberg, long serving Westminster City Council member.  How much progress will be made towards at least partial pedestrianisation before the end in 2028 of Sadiq Khan’s current term? One to watch.

We are also watching and waiting for the Mayor’s high level Towards a London Plan consultation document, initially expected last month but now delayed to May. Adoption is not expected of the final document until 2027, a year from the next Mayoral election. These slow time periods are crazy.

We are also still waiting for the final versions, following consultation in May 2023 (see my 6 May 2023 blog post New Draft London Guidance On Affordable Housing/Viability) of non-statutory London Plan Guidance on affordable housing and on development viability. All we have had so far is a December 2024 “practice note” on accelerating housing delivery (see my 11 January 2025 blog post Is The London Mayor Doing Enough In Practice To Accelerate Housing Delivery?)

As we wait for those documents, the inspector’s decision letter dated 2 May 2025 in relation to the Stag Brewery proposed development in Mortlake, Richmond-on-Thames, makes for interesting reading – and a reminder of how financially challenging it is to bring forward large-scale brownfield development. I need to declare an interest in that my Town Legal colleagues Elizabeth Christie and Aline Hyde acted for the successful appellant, Reselton Properties Limited. The proposals entail the redevelopment of the site for residential and mixed use purposes (including up to 1,075 new homes), together a new secondary school. The decision letter follows a lengthy saga, with a previous scheme on the site having been the subject of refusal by the Mayor in May 2021 following resolution to grant by the London Borough of Richmond-on-Thames in January 2020. The local planning authority had similarly resolved to approve this latest scheme; the main issue, again, was with the Mayor, primarily in relation to viability and the approach to affordable housing.

The appellant and local planning authority agreed that viability testing had demonstrated that the viable position would be zero affordable housing, and that, against this technical position, the offer of 7.5% affordable housing (split 80% social rented, 20% intermediate), with viability review mechanism to capture future uplifts in viability, was a benefit. The Mayor disagreed that this represented the maximum viable provision required by policy, questioning some of the viability inputs, namely on private residential sales values, developer return (appellant’s and council’s position: 17.2%, Mayor’s position 15%) and growth and review potential. However, the inspector accepted the appellant’s and council’s position, indeed rejecting an alternative offer by the appellant of 12% affordable housing if the inspector were to have found against the appellant and council on elements of the viability case. In the context of the council having marginally less than five years’ housing land supply; the additional presumption to be given to brownfield development, and other benefits including the opportunity for delivery of a new secondary school as required by the local plan allocation and wider economic benefits flowing from the development, planning permission was granted.

Simon Ricketts, 4 May 2025

Personal views, et cetera

Is The London Mayor Doing Enough In Practice To Accelerate Housing Delivery?

Congratulations Sir Sadiq Khan, Mayor of London, and Christopher Katkowski CBE KC on your respective new year’s honours.

CK CBE KC of course led work on a report published in January 2024 for the last government which considered any changes to the London Plan which might facilitate housing delivery on brownfield sites in London. The report lays bare the undersupply of new homes in London, which has not kept pace with increases in jobs, population and housing demand.

Sir SK’s Greater London Authority published on 19 December 2024 Accelerating Housing Delivery: Planning and Housing Practice Note. I summarise the document later in this post and would welcome reactions as to whether the document – non-statutory, intended as practical guidance and a material consideration in the determination of planning applications and, in part, renegotiation of existing section 106 agreements – really goes far enough, given where we currently are.

The need for additional housing in London, at all price points, both subsidised (“affordable”) housing and general market housing, has never been more acute. It is in fact much worse now than when CK CBE KC wrote that report. The statistics back that up, with planning approvals and housing starts both down sharply last year.

Annual housing completions have been falling short of the policy target in the 2021 London Plan of 522,870 net housing completions from (2019/20 -2028/29). Everyone knows that the viability position for developers is increasingly difficult, faced with build cost inflation, high interest rates and the costs and uncertainty of, for example, additional building safety requirements. Similarly everyone knows that there is an absence of registered providers willing to take on the affordable housing, leading to stalled schemes (a national problem – see the HBF’s December 2024 press statement 17,000 Affordable Homes stalled by lack of bids from Housing Associations and accompanying report).

We have the London Plan’s 50% affordable housing requirement – and with a relatively rigid and formulaic system of early stage and late stage viability review mechanisms where that cannot be met (the late stage review not being required where the “fast track” applies, i.e. if the developer commits to at least 35% affordable housing – 50% on industrial or public sector land), all in accordance with London Plan Guidance on affordable housing and on development viability which have remained in draft since May 2023.

Before we look at the practice note, let’s see what some of the evidence is saying, for instance the GLA’s own November 2024 document, Housing in London 2024: The evidence base for the London Housing Strategy (the charts referred to are here):

“London is home to both the fastest and slowest-growing local housing stocks in England. The number of homes in Kensington and Chelsea grew by 2% over the last decade, compared to 26% in Tower Hamlets (chart 2.1). Using data on new Energy Performance Certificates to track completions of new homes, it looks like new supply in 2024 is following the trend of 2022 and 2023, two of the lowest years in the last five years (chart 2.2).

The quarterly number of planning approvals is falling, and they are concentrated on fewer, larger sites (chart 2.4).  Increasing construction on small sites might be key to increasing overall delivery, with 65,000 new build homes completed on small sites between 2012/ 13 and 2021/ 22 (chart 2.3). Sales of new market homes in London peaked in 2022 and then fell considerably, partly due to lower demand from Build to Rent (BTR) providers and the end of Help to Buy (chart 2.6). The BTR sector, which completed 44,585 new homes in London between 2009 and 2023 is nevertheless still growing (chart 2.7).

38% of homes and 46% of habitable rooms recommended for approval by the Mayor in 2023 were affordable, with both of these figures a record high (chart 2.5). Affordable housing starts funded by the GLA fell sharply between 2022/ 23 and 2023/ 24 (charts 2.8 and 2.9), as registered providers and local authorities have diverted resources away from new supply in response to increased remediation and refurbishment costs and the costs of adapting to changing regulations. Completions are also down, but not as much. Of the affordable homes started with GLA support in 2023/ 24, 72% were for social rent. Affordable completions from all funding sources also rose to a recent high of 15,768 in 2022/ 23 (chart 2.10), with data for 2023/ 24 not yet available.

Social housing landlords in London owned just under 800,000 affordable homes for rent in 2023, the highest total since 2002 (chart 2.12). Sales of council homes through the Right to Buy (RTB) scheme have been on a downward trend since their peak in the 1980s, totalling 1,080 in 2023/ 24 (chart 2.11).

Council tax data showed that 2.3% of homes in London were empty in 2023, with only 1% empty longer than 6 months (chart 2.13). These are much lower levels than in the 1980s and 90s, when around 5% of homes used to be empty.

1.34 million homes in London, or 36% of its stock were leasehold homes in 2022/ 23, over half of which were privately rented (chart 2.15).  In 2023, there were 22,770 homes in multiple occupation (HMOs) with mandatory licences in London. This is the highest of any region (chart 2.14).”

This is chart 2.8 referred to in that text:

This is an extract from chart 2.4, showing the annualised trend per quarter in the number of new homes approved, and the number of projects:

Ahead of the awaited review of the London Plan, what can be done? The sorts of specific, practical,  issues that currently come up again and again relate to the operation of the viability review mechanisms in particular. Since the new Building Safety Act regime came into force on 1 October 2023 the early stage review mechanism, kicking in if substantial implementation (usually defined as construction of the foundations and ground or first floor) hasn’t taken place within two years of permission, is increasingly unworkable for higher-risk buildings given how long the gateway two stage is taking in practice. The contingent liability that the late stage review mechanism represents is unattractive in principle to funders, which is a big challenge in a weak market.

For measures that could have had an immediate positive impact, what about, for instance, introducing suitable flexibility into the triggering of the early stage review?  Potentially a temporary “holiday” from the late stage review for schemes that committed to proceed to completion within an agreed timescale?  A willingness to accept renegotiation of section 106 agreements on schemes which are now unviable? Some pragmatism as to commuted payments towards off-site delivery where a registered provider cannot be found?

Whilst the document does include some measures which may help at the margins, there’s certainly no “big bang” of that nature. It is in fact curious how little fanfare the practice note has been given. I can’t even find it on the GLA website, let alone any press release. Nor was any formal consultation or indeed feedback invited.

Anthony Lee at BNP Paribas did this good summary on LinkedIn before Christmas but I have seen little else.

I draw out some of the measures as follows:

  • Allowing the fast track threshold to be reduced, both for new and current applications and also for consented schemes, where the tenure split provides proportionately more social rent than the policy requirement, in accordance with a formula that appears to seek to avoid any financial advantage to the developer in so doing – the only advantage being if that unlocks more GLA funding and/or more willingness on the part of registered providers.
  • Estate regeneration schemes will be able to qualify for the “fast track” if at least 50% of the additional housing will be delivered as affordable.
  • The GLA will consider accepting supported housing and accommodation for homeless households, with nomination rights for the relevant borough, as a like for like alternative for intermediate housing, again both for new and current applications and also for consented schemes.
  • The cost of any meanwhile accommodation for homeless households, with nomination rights given to the relevant borough, may be taken into account in the operation of viability review mechanisms.
  • With the late stage review, the developer currently retains 40% of any surplus profit. In certain circumstances this can now increase to 70%.  However, the criteria are tight. “To qualify for this, the application must provide at least 25 per cent onsite affordable housing by habitable room for schemes with a 35 per cent threshold, and 35 per cent onsite for schemes with a 50 per cent threshold, at the relevant local plan tenure split, and be certified as reaching practical completion within three years of the date of this document.” “For larger phased schemes that provide at least 25 per cent affordable housing across the scheme as a whole that are granted planning permission after the date of this practice note, if the initial or a subsequent phase is certified as reaching practical completion within three years of the date of this document, the GLA will consider allowing the applicant to retain 70 per cent of any surplus profit identified in that phase when the late review is undertaken. The relevant phase must include at least 100 residential units.”
  • There is this enigmatic sentence: “The GLA will also work with boroughs to identify sites that have been allocated for development or that have been granted consent but that have not come forward for development for many years, or where limited progress has been made, and will assess the nature of interventions required to facilitate this.”
  • Great flexibility is announced as to the permissible inputs into review mechanisms. The formulae currently focus on changes in gross development value and build costs. “However, in some cases it may be more appropriate to allow for a full viability review to be undertaken which reconsiders all development values and a greater scope of development costs, including professional fees and finance costs.”
  • The Mayor’s housing design guidance should not be applied mechanistically, in relation to, for instance, the reference to the need to submit “fully furnished internal floorplans” and the objective that new homes should be dual aspect.
  • Various grant funding measures but I’ll look to others to comment as to the extent they will move the dial.

Thoughts?

Simon Ricketts, 11 January 2025

Personal views, et cetera

Street Robbery?

There was a surprising announcement on Tuesday by the Mayor of London, “supported by the new Government”, that he is to create a Mayoral Development Corporation to “transform Oxford Street, including turning the road into a traffic-free pedestrianised avenue” so that it can “once again become the leading retail destination in the world” (see Mayor of London and government announce bold plans to transform Oxford Street (17 September 2024).

We all know that there was a longstanding disagreement between the Mayor and the previous Conservative administration of Westminster City Council as to whether the street should be pedestrianised, his 2016 pedestrianisation scheme having been scuppered by opposition by WCC, as highway authority and therefore the relevant body to implement the proposals, in June 2018. But Labour took control of WCC  in May 2022 and I’m left scratching my head as to what lies behind his announcement and its timing.

WCC’s Statement on Oxford Street  (17 September 2024) reveals that the council was only informed the previous Thursday that this was on the cards. The plan would serve to frustrate the council’s own plans to redesign and improve the street.

Not only that, the council had a by-election two days after the announcement and lost one of its West End seats to the Conservatives (see Labour loses central London by-election to Tories amid row over Sadiq Khan’s Oxford Street pedestrianisation (Standard, 20 September 2024)). Was the result affected by the announcement? Well it can’t have helped, given how locally unpopular the prospect of pedestrianisation has been, with residents concerned about buses and taxis being displaced to other streets.

The Mayor’s announcement contains no information as to what the boundaries would be of the proposed Mayoral Development Corporation. I’m assuming that the main reason for designating the Corporation would be to give it the necessary planning and highways powers to deliver not just the pedestrianisation but any necessary works on surrounding streets – and is the Mayor looking to include the surrounding buildings within its area? There is no information in the public domain.

The procedure for establishing Mayoral Development Corporations is set out in sections 196 to 200 of the Localism Act 2011. The Mayor will need first to consult a number of bodies, including of course WCC, before placing it before the London Assembly, undertaking public consultation and then notifying the Secretary of State.

What funding will be made available by the Government? Again, nothing is in the public domain.

All in all this seems to me a very odd use of the Mayor’s powers to achieve a scheme which surely could have been driven through with WCC’s Labour administration with appropriate sticks and carrots. Or is the announcement itself just the waving of a big stick? Time will tell…

Simon Ricketts, 21 September 2024

Personal views, et cetera

image of Mayor’s 2016 scheme courtesy of Mayor of London

Labour’s Green Belt Grey Areas/Sadiq Khan’s London Manifesto

For those of us living or working in London, I reckon that Sadiq Khan’s manifesto for his next term as Mayor, published on 19 April 2024, is an important read. But yesterday it was rather drowned out by the media coverage that day of Labour’s press statement on green belt policy reform.

I’ll deal first with Labour’s green belt announcement.

As a country we certainly need to resolve the negative effects of this misunderstood policy concept (Sam Stafford’s updated blog post, The Green Belt. What it is; what it isn’t; and what it should be contains all (more than?) anyone could ever want to know about the subject). And for a sense of the sheer extent of green belt and its obvious consequent throttling effect on the areas it encircles, see for example Town Legal’s planning appeals map – green belt areas marked in … green).

It is surely positive in the context of a continuing, indeed worsening, housing crisis and the lack of other options which are likely to be sufficient and deliverable, that there is talk from Labour of using some green belt land to deliver more new homes. After all, even “going there” is politically brave. But fine words butter no parsnips. And I wonder whether the proposals in some ways just add to the confusion.

These are the core proposals from the press release :

“A Labour government would take a brownfield first approach to development across England, prioritising building on previously developed land in all circumstances and taking steps to improve upon the government’s lacklustre record of brownfield build out rates. Areas with enough brownfield land should not release greenbelt.

A Labour government will implement five ‘golden rules’ for Grey Belt development:

1.⁠  ⁠Brownfield first – Within the green belt, any brownfield land must be prioritised for development. 

2.  Grey Belt second – poor-quality and ugly areas of the Green Belt should be clearly prioritised over nature-rich, environmentally valuable land in the green belt. At present, beyond the existing brownfield category the system doesn’t differentiate between them. This category will be distinct to brownfield with a wider definition.

3.⁠ ⁠ Affordable homes – plans must target at least 50% affordable housing delivery when land is released.

4.⁠ ⁠ Boost public services and infrastructure – plans must boost public services and local infrastructure, like more school and nursery places, new health centres and GP appointments.

5.⁠ ⁠ Improve genuine green spaces – Labour rules out building on genuine nature spots and requires plans to include improvements to existing green spaces, making them accessible to the public, with new woodland, parks and playing fields. Plans should meet high environmental standards.”

What can we take from this as to what Labour would actually do, if elected?

This press statement is of course not intended to be picked over by people like me or you. Its purpose is to influence potential voters and to give us all a flavour of we would be likely to see, whilst giving plenty of wriggle-room when it comes to the actual implementation. So I’m not going to carp too much, but…

  • Are these tests for plan-makers or for decision-makers? If the former (likely), will there be a transition period before the new policy kicks in for decision-makers, if there is an otherwise up to date local plan?
  • So a basic hierarchy of brownfield; non-green belt greenfield; brownfield green belt; grey belt green belt; green belt green belt? It strikes me that this gives too much emphasis on the physical characteristics of the site itself rather than its sustainability and appropriateness in spatial terms? And how is this sequential testing to be carried out? The old questions as per the retail and flood risk sequential tests: to what extent can proposals be disaggregated; what is the area of search; deliverable over what period and what about where (as is often the case) there is not really a choice between site A and site B because the level of unmet need is such that A and B are both needed, and more besides?
  • How do references to “poor-quality and ugly” and “nature-rich, environmentally valuable” match up at all to the five traditional purposes for which green belt is designated – (a) to check the unrestricted sprawl of large built-up areas; (b) to prevent neighbouring towns merging into one another; (c) to assist in safeguarding the countryside from encroachment; (d) to preserve the setting and special character of historic towns; and (e) to assist in urban regeneration, by encouraging the recycling of derelict and other urban land. Is that what “poor-quality” means perhaps – not fulfilling those purposes?
  • If “brownfield” equates to what is currently defined as previously developed land, and treated less restrictively in green belt policy, give me an example of this untapped resource of non brownfield “grey belt”? And we’ve all gone on endlessly about the subjectivity of the concept of “beautiful” only now to be faced with a policy concept of “ugly“!
  • 50% is an eye-catching number for some areas but as a target what will actually change in practice? And define “affordable”. Will the opportunity be to introduce these requirements via national development management policies? That would be some exciting and early mission creep!
  • 4 and 5 are nothing new.
  • It’s not all about housing folks! What about logistics and other developments which need to be located in the green belt?

Now to Sadiq Khan’s manifesto, “A Fairer, Safer, Greener London” published ahead of the 2 May 2024 election. I’ll just draw out some quotes:

From his ten pledges:

3  Build 40,000 new council homes by the end of the decade

8  More support for renters – delivering new affordable ‘rent control homes’ and empowering Londoners to take on landlords through a New Deal for Renters

9  Continue world-leading action to tackle air pollution and the climate crisis – from making all buses zero-emission to providing air pollution filters to primary schools

10 Deliver a new London Growth Plan, with a target of creating more than 150,000 good jobs by 2028 and increasing living standards for Londoners

Under the heading “Tackling the housing crisis”:

“To unblock more new homes, I will take decisive action where needed to create new Land Assembly Zones and set up more Mayoral Development Corporations to boost overall housing supply and drive regeneration. These will deliver new sustainable communities with homes for first-time buyers as well as homes for social rent. I’ll work with a Labour government to strengthen planning so that the London Plan can go even further in supporting the delivery of the affordable housing our city needs, while unlocking economic growth and being the greenest ever plan for our city.”

Under the heading “Cleaning up London’s air”:

“making London the world’s first electric-vehicle ready global city by working with partners to double the amount of electric vehicle charging points installed since 2016 to more than 40,000 by 2030

continuing to oppose any expansion of airports in London”

Under the heading “Growing our economy”:

“I will build on our city’s economic recovery and set out an exciting new London Growth Plan, developed in close collaboration with councils, businesses and trade unions.

This new growth plan will set out how we can boost jobs and growth in the well-established sectors of our economy, including finance and business services; retail, hospitality, leisure and tourism; manufacturing; logistics; built environment and construction. I will also focus on and champion some of the fastest growing sectors, such as health and life sciences; digital including fintech, retail tech, cyber and AI; creative industries including film, fashion, TV, music and games; climate tech and the energy sector.”

“To help boost economic growth across our city, I will support individual boroughs to build on their strengths – from the new global culture and education powerhouse that is East Bank in Stratford, to the world-leading TV and film production cluster in West London, and the internationally influential cutting edge cancer research centre in Sutton. This also means working with councils and businesses to deliver a new vision and plan for the centre of London, ensuring that we can continue to compete with the central activity zones of other global cities like Paris and New York. London has roared back as a tourist destination since the pandemic and I’ll continue to work with partners to improve our tourism offer.”

“London is home to more than 600 high streets. We learned during the pandemic how intimately connected we are to local high streets, and their importance to our communities. That’s why I want to do more to protect, restore and improve them. If I’m re-elected, I will launch a support fund and set out a new vision for the future of London’s high streets, building on the work we have already done. I’ll also explore planning changes that can help breathe new life into our high streets, helping to ensure they remain a central feature of our economic and civic life.”

Not a word about green belt, you might note…

Simon Ricketts, 20 April 2024

Personal views, et cetera

M&S Mess 2: “The SoS Appears To Have Become Thoroughly Confused On This Point”

Quite a week. I was going to write about the London Mayor’s Large-scale Purpose-built Shared Living London Plan Guidance (29 February 2024) – less prescriptive in relation to co-living than his initial draft as a result of constructive engagement with the industry, well received and good to see – or indeed the Competition and Markets Authority’s final report into housebuilding in England, Scotland and Wales (26 February 2024) – the best analysis of the house building and land promotion industry and indeed opportunities to reform the planning system that I have read. But all that will need to wait because one case has dominated the chat in the last day or so:

Marks & Spencer plc v Secretary of State (Lieven J, 1 March 2024)

This was of course the legal challenge by M&S to the Secretary of State’s refusal of the retailer’s application, which he had called in, for planning permission for the construction of a nine storey new mixed office and retail store to replace its existing store at the western end of Oxford Street.

As to the various stages in the decision making process which led to the Secretary of State’s decision, together with an initial critique at the time of that decision (as well as the statement at the time from the M&S chief executive who had described Mr Gove’s decision as taken “on the whim of one man” and “utterly pathetic”) see my 21 July 2023 blog post, M&S Mess.

Russell Harris KC and Heather Sargent acted for M&S on the legal challenge, together with Dentons. Well done all for the outcome. For the pithiest and precise summary of the outcome you cannot beat Heather’s LinkedIn post yesterday:

“Lieven J has held that:

– The Secretary of State’s statement that “there should generally be a strong presumption in favour of repurposing and reusing buildings, as reflected in paragraph 152 of the [2021 NPPF]” was a misinterpretation of the NPPF and an error of law;

– The Secretary of State unlawfully failed to explain why he disagreed with his Inspector’s conclusions that there was no viable and deliverable alternative to the redevelopment scheme proposed by M&S;  

– The Secretary of State unlawfully failed “to grapple with the implications of refusal and the loss of the benefits and thus departure from important Development Plan policies”;

– The Secretary of State unlawfully failed to provide adequate reasons for concluding (again in disagreement with his Inspector) that the harm to the vitality and viability of Oxford Street if M&S’s scheme (or an alternative) were not delivered would be “limited”; and

– The Secretary of State’s decision was also vitiated both by a factual error (namely, an erroneous understanding that there was no dispute that the proposed scheme would involve much greater embodied carbon than refurbishment) and by a misinterpretation of development plan policy on carbon. The judgment confirms that it is “clear beyond any rational doubt … that the offsetting requirements in [London Plan policy] SI 2C are in relation to operational carbon, and not embodied carbon”.

For the best explainer, a vivid and fascinating piece of prose as ever, you have to read Zack Simons’ 2 March 2024 blog post This is not just *any* judgment: M&S in the High Court.  

My (possibly unfairly) selective quote in the title to this blog post is from paragraph 116 of Lieven J’s judgment where she reports his apparent misunderstanding that the London Plan’s requirement for carbon off-setting applies to embodied carbon rather than just operational carbon (ground 5). She goes on to conclude:

“120 It would be astonishing if one of the key policies in the London Plan on carbon emissions could have suddenly expanded the scope of the off-setting requirements in such a significant way without anyone applying it in this way before. The approach of the SoS appears to believe that there is a “net zero” requirement of, or at least aspiration for, construction impacts, in a key Development Plan policy which has never previously been applied.

121 It is important to make clear that this case is not about whether or not it would be appropriate or justified to have such a policy in the light of the climate emergency. Such a judgement is not the function of the court. The issue for the court is whether the SoS erred in law by misinterpreting the adopted London Plan policy.”

The only further comment I would add at this point is that this saga is not yet at an end. The effect of the judgment is that (absent any application by the Government Legal Department to the Court of Appeal for permission to appeal)  the application goes back to the Secretary of State to be redetermined. No doubt the parties will need to be given the opportunity to make further representations. It will take months. Indeed, who will be the Secretary of State by then?

Paragraph 152 of the previous version of the NPPF, on which ground 1 turned, survives unchanged as paragraph 157 of the latest version of the NPPF but will any relevant policy changes be made before the final outcome of the redetermination process? We know from the Government’s December 2023 Future Homes and Buildings Standards consultation:

“ Embodied carbon, the carbon emissions generated from the production and transportation of building materials, construction process and maintenance of a building – is beyond the scope of this consultation and the existing Building Regulations. We recognise, however, that embodied carbon is a significant contributor to the whole life carbon of a building and that it is therefore crucial that we take steps to address it. The government intends to consult on our approach to measuring and reducing embodied carbon in new buildings in due course” (paragraph 1.1.4)

At a local level,  and as an example of how life constantly edges on, Westminster City Council also adopted on 28 February 2024 (I said it was a busy week)  its new Planning Obligations and Affordable Housing SPD, which is intended to become a material consideration in decision making from 7 March 2024, with, amongst other things, a swingeing increase in carbon off-set payments (see brief Westminster Property Association explainer here).

The Secretary of State’s call-in of this application in June 2022 will so far have caused (assuming, which is not in the bag yet, that planning permission is eventually granted) at least two years’ delay, vast expense and delay for M&S as well as opportunity cost for the most important traditional shopping street in the nation’s capital (for which there is no financial recompense for M&S or for London). There really should be a higher threshold for call-in by the Secretary of State (whatever his or her political persuasion) of decisions which are referable to the Mayor of London (whatever his or her political persuasion). And the “behind the scenes” weighing of planning considerations/political advantage which leads to decisions such as this and that in relation to the Television Centre (see my 9 February 2024 blog post, The Weighting Game) is unfathomable (a word which I was relieved to see I used in my M&S Mess post last year about the Secretary of State’s reasoning on some aspects in his M&S decision).

Finally on this subject, whether as a thumbs up to that M&S legal team, or as a general thank you tip for us planning law bloggers, or as a gesture of support to Russell Harris and most importantly the young people’s charities he is supporting by way of this mad thing, please do sponsor Russell’s Cycle to MIPIM 2024 . He and the rest of them will no doubt shortly setting out and would appreciate any support. When I last looked, he was about £1,500 short of his £11,000 target. As another retailer might say, every little helps.

Simon Ricketts, 2 March 2024

Personal views, et cetera

Extract from photograph by Victor via Unsplash

The RUBR Hits The Road: Residential Urban Brownfield Regeneration

“Building homes on brownfield land will be turbocharged under a major shake-up to planning rules to boost housebuilding while protecting the Green Belt. “

For a concise summary of today’s DLUHC announcements and all the links, see my Town Legal colleague Susie Herbert’s post.

I have seen some understandable cynicism about the proposed changes – along the lines of “it’s motivated by the politics” (obviously in part yes); and/or “it’s in dribs and drabs, why couldn’t this have been done as part of the December 2023 NPPF changes?” (well yes, although maybe better late than never?); and/or ”none of it will make a difference” (I’ll declare an interest having assisted British Land and Land Sec in a small way last year with their report More Growth, More Homes, More Jobs: how to reform the planning system to unlock urban regeneration – but I would have said this anyway – I think the announced changes could well make a difference – and in fact there are plenty more within that report that are worthy of consideration!).

There is of course already existing policy encouragement (albeit rather general) in paragraph 124 (c) of the NPPF, which states that planning policies and decisions should “give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs.”

The Government proposes to strengthen that message with the following additional wording within paragraph 129 (c):

“local planning authorities should refuse applications which they consider fail to make efficient use of land, taking into account the policies in this Framework, especially where this involves land which is previously developed. In this context, when considering applications for housing, authorities should give significant weight to the benefits of delivering as many homes as possible and take a flexible approach in applying planning policies or guidance relating to daylight and sunlight and  internal layouts of development, where they would otherwise inhibit making the most efficient use of a site (as long as the resulting scheme would provide acceptable living standards).” [new passages underlined]

I do think this does move the dial further with those references to “delivering as many homes as possible” and (particularly in London) the “flexible approach in applying planning policies or guidance relating to …  internal layouts of development”.

The dial will then move into full “tilted balance” paragraph 11 (d) territory for those boroughs in London and those other 19 towns and cities subject to the urban uplift, where their Housing Delivery Test results (to be published in May) indicate that their delivery of housing was below 95% of the housing requirement over the previous 3 years.

For an indication of the potential outturn of those results see Ross Raftery’s excellent Lichfields blog post today, Testing times for England’s big cities – an extended reach for the presumption and other NPPF changes.

This strengthening of the tests is likely to make a difference (even during this consultation period): it will influence the way that planning committees are advised when they come to make decisions; it will focus a broader spread of authorities on the potential consequences of not meeting delivery targets (admittedly not fully within their control, but certainly partly), and it will certainly influence how inspectors and the Secretary of State approach appeals and call-ins.

In London there is also much good analysis in the excellent report prepared by Christopher Katkowski KC and his panel. From the executive summary:

“6 The consequences of housing under-delivery have significant economic, societal and personal impacts, not least on those who face no alternative option but homelessness (living in temporary accommodation), or who are forced into poor-quality rental accommodation.

7 Public and private sector stakeholders are clear in their view that the London Plan is not the sole source of the problem: wider macro-economic conditions; fire safety; infrastructure constraints; statutory consultees; viability difficulties; and planning resourcing pressures have all contributed.

8 However, there is persuasive evidence that the combined effect of the multiplicity of policies in the London Plan now works to frustrate rather than facilitate the delivery of new homes, not least in creating very real challenges to the viability of schemes. We heard that policy goals in the Plan are being incorrectly applied mechanistically as absolute requirements: as ‘musts’ rather than ‘shoulds’. There is so much to navigate and negotiate that wending one’s way through the application process is expensive and time-consuming, particularly for SMEs who deliver the majority of London’s homes.

9 This position is exacerbated by the change in context since the London Plan was formulated. The London Plan’s ‘Good Growth’ policies were advanced on the basis of public and private sector investment assumptions that were described in 2019 as being “ambitious but realistic” by the London Plan Inspectors. But planning and housing delivery indicators suggest this strategy has not been sufficiently resilient to the subsequent change in circumstances. Housing schemes (and decision makers on applications) have struggled to reconcile the multiple policy exhortations, which create uncertainty and delay in the preparation, submission and determination of planning applications.”

Many will also welcome the Secretary of State including within his consultation paper the question as to whether the threshold for referral of applications to the Mayor should be raised:

“As part of the large scale development theme, a threshold for large scale residential development was first set in the previous regulations in 2000 as development providing more than 500 houses, flats, or houses and flats or residential development on more than 10 hectares. In 2008, this threshold was reduced to 150 houses, flats or houses and flats.

Through engagement, the government is aware that in some instances this threshold is considered to be too low, requiring what may amount to duplicative interactions by developers with the relevant London Borough and with the Greater London Authority which is not always considered proportionate to the nature of the development in question.

The government wants to make sure that this threshold is set at the right level, in order that it adds value to the process of determining applications for potential strategic importance (especially for residential development), and does not inadvertently slow down or disincentivise developments that could be appropriately determined by the London Borough.”

In conclusion, will building homes on brownfield land be “turbocharged under a major shake-up to planning rules”? It’s more a ratcheting-up of policy than a “major shake-up to planning rules” (thankfully). And whilst I refuse to engage with that ridiculous, very Boris Johnson, word “turbocharged” and whilst this is a very late initiative for a Government that is fast running out of road, let’s hope there is at least some acceleration as a result.

Simon Ricketts, 13 February 2024

Personal views, et cetera

The Weighting Game

 I was going to call this blog post National Lottery but then I remembered I’ve already used that strapline back in 2019. 7 years of this blog, 408 posts – round and round the same track we go.

Much has already been written about the Secretary of State’s decision letter dated 6 February 2024 in which he granted planning permission for the redevelopment of the former London Television Centre, on London’s south bank (NB paragraph 1 of the Secretary of State’s letter curiously describes it as an appeal against refusal of the application by Lambeth Council, which it was not – Lambeth was supportive and had resolved to grant planning permission before the Secretary of State intervened by calling in the application).

See eg Zack Simon’s post as to what the decision may tell us as to the question of “beauty”, Nicola Gooch’s post on severability  (although maybe the applicant didn’t have Hillside severability in mind so much as simply phasing for CIL purposes?) and Andy Black’s post on the some of the wider implications of the decision.

I’m not going to duplicate any of those posts. I’m just going to use another aspect of the decision as a jumping off point both for sympathising with all parties who spend vast amounts of time and money at risk on these sorts of application and appeal processes and for giving a small jab at us lawyers.

Because the decision essentially turned on one thing: the Secretary of State having (crucially) found that there was compliance with the development plan as a whole (despite some conflict with individual policies), the pivot was whether there were material considerations which indicated that the proposal should be determined other than in accordance with the development plan – or, more basically, how much relative weight the Secretary of State decided to apply to the public benefits arising from the scheme as against the harms arising from the scheme (whilst applying the appropriate tests in relation to elements of “heritage” harm, for instance requiring “clear and convincing justification” by way of the public benefits arising). To quote the key paragraphs:

“35. Weighing in favour of the proposal are the employment generating opportunities for the Borough in the construction phase as well as the operational phase of the development, which both carry substantial weight, the placemaking benefits delivered by the public realm strategy which carry substantial weight, and the commitment towards an employment and skills strategy over and above the policy requirements as well as the provision of affordable creative workspace which carries moderate weight.

36. Weighing against the proposal is the less than substantial harm to the significance of the designated heritage assets of the RNT, the IBM building, Somerset House, the South Bank CA and the Roupell Street CA, which carries great weight. The Secretary of State has also found that the proposal would not provide a positive contribution to the townscape of the South Bank, which carries moderate weight.

37. The Secretary of State has considered the heritage balance set out at paragraph 208 of the Framework (formerly paragraph 202). He has noted public benefits deriving from the public realm strategy, as well as the other public benefits identified in paragraph 35 above. However, he has also identified less than substantial harm to the significance of the RNT, the IBM building and Somerset House, and to the South Bank CA and Roupell Street CA. Having carefully weighed up the relevant factors, he has concluded that the public benefits of the proposal do outweigh the harm to designated heritage assets. Therefore, in his judgement, the balancing exercise under paragraph 208 of the Framework (formerly paragraph 202) is favourable to the proposal.

38. Overall, in applying s.38(6) of the PCPA 2004, the Secretary of State considers that the accordance with the development plan and the material considerations in this case indicate that permission should be granted.”

Of course, a huge amount of expert evidence was given at the inquiry over 12 sitting days by the parties as to each of these matters and the weight to be applied to each of them, but if the Secretary of State had chosen to give less weight to the public benefits set out in paragraph 35, the decision would probably have gone the other way. How much weight the Secretary of State (or any decision maker) gives to such considerations is very difficult to predict – it is quintessentially a matter of planning (whisper political) judgment. (Similarly his decision as to whether, despite non-compliance with some individual policies, there was compliance with the development plan as a whole).

The weighting is particularly interesting, given that he was more bearish than the inspector (who had recommended that permission be granted) on various aspects, including:

  • whether “the scale of the building and the proposed massing provides an appropriate response to the site”
  • finding negative elements to the effects on townscape
  • disagreeing that “the proposed palette of materials and the aesthetic appearance of the building is appropriate for what is a very prominent and sensitive site. He disagrees with the Inspector that an attractive development would be delivered.”

The Planning Practice Guidance summarises the legal position as to the weight to be given to material considerations:

“What weight can be given to a material consideration?

The law makes a clear distinction between the question of whether something is a material consideration and the weight which it is to be given. Whether a particular consideration is material will depend on the circumstances of the case and is ultimately a decision for the courts. Provided regard is had to all material considerations, it is for the decision maker to decide what weight is to be given to the material considerations in each case, and (subject to the test of reasonableness) the courts will not get involved in the question of weight.

Paragraph: 009 Reference ID: 21b-009-20140306

Revision date: 06 03 2014”

And as for public benefits:

“What is meant by the term public benefits?

The National Planning Policy Framework requires any harm to designated heritage assets to be weighed against the public benefits of the proposal.

Public benefits may follow from many developments and could be anything that delivers economic, social or environmental objectives as described in the National Planning Policy Framework (paragraph 8). Public benefits should flow from the proposed development. They should be of a nature or scale to be of benefit to the public at large and not just be a private benefit. […]

Paragraph: 020 Reference ID: 18a-020-20190723

Revision date: 23 07 2019”

To quote Lindblom LJ in East Staffordshire Borough Council v Secretary of State for Communities and Local Government  (Court of Appeal, 30 June 2017):

“Planning decision-making is far from being a mechanical, or quasi-mathematical activity. It is essentially a flexible process not rigid or formulaic. It involves, largely, an exercise of planning judgment, in which the decision-maker must understand relevant national and local policy correctly and apply it lawfully to the particular facts and circumstances of the case in hand, in accordance with the requirements of the statutory scheme. The duties imposed by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act leave with the decision-maker a wide discretion.”

We often pretend that planning decision-making to be a quasi-scientific, quasi-judicial process. But it’s really nothing of the sort. We lawyers can seek to ensure that all material considerations are taken into account, that immaterial considerations are not taken into account, that thresholds and criteria in specific statutory and policy tests are taken into account and that the decision-maker’s reasoning is adequate and rational. We can apply our forensic experience to ensure that the necessary evidence is brought forward and is presented as persuasively as possible – and can stress-test the evidence against us. But beyond that, rather than anything resembling the scales of justice, there is a black box in which there is simply the exercise of planning judgment. (I’m not complaining about that – that is the essence of the role of the planner I would have thought).

My jab at us lawyers is simply that perhaps we do not stress strongly and frequently enough to clients how unscientific the planning application and appeal process is. We are often asked to indicate what the odds are on a proposal finding favour with the decision-maker: what are the percentage prospects of success? This is an entire reasonable question to ask, because otherwise how can the client carry out a proper cost benefit analysis of whether the process is likely to be a worthwhile investment? But save for rare examples of cases which mainly turn on the correct interpretation of a particular policy, we have so little to go on other than analysis (which is often not sufficiently objective and evidence-based and possibly infected by eg optimism bias) of previous trends in decision-making to see what weight has previously been applied to various material considerations, in differing circumstances and permutations – trends which in any event do not amount to formal precedents.

I’m not even sure that appeal odds can be given which are much more than, say:

  • Less than 35 – 40% ie very unlikely to succeed given significant technical or legal hurdles to be overcome.
  • Circa 50% ie yes it’s arguable but it’s going to come down to whether there has been development plan compliance as a whole and the weight that the decision-maker gives to competing material considerations
  • Circa 60% – 65% ie a scheme which appears to be policy compliant and to meet the relevant legislative and policy tests

Would anyone be prepared to bet good money on the basis of assuming prospects materially higher than 65%? In my view it would need to be an unusual case turning on relatively binary issues.

Factors which lead to additional variability:

  • The scale of the development proposal, the range of potential issues and process timescale (will the decision maker or other circumstances in fact change along the way?!)
  • Cases where the principal live issues give rise to a large element of subjectivity, in relation to matters such as design or townscape
  • Is this a Secretary of State decision (ie in relation to an application which he has called in or an appeal he has recovered for his own determination)? – again this inevitably makes the outcome less predictable, both due to the influence of “politics” but due to the additional delays thereby arising (see above)
  • Political/media interest or pressure
  • Unusual proposals and/or where the decision-maker does not have a relevant or consistent track record.

When set against the scale of investment required to promote a large scheme at inquiry or indeed to defend against it, these may be sobering thoughts.

Simon Ricketts, 9 February 2024

Personal views, et cetera

PS Since I left Twitter I have experimented with a few social media platforms. None are ideal but, now that it is finally public access, you could give Bluesky a go. I share these posts there (my account is here) and on LinkedIn and you may find some related content.

Scheme image courtesy of CO-RE website