How Long Has This Been Going On?

Time is money. Time is unmet needs. Time is unrealised public benefits.

I just wanted to capture some of the current, frankly depressing, data that is out there on application and appeal timescales.

The purpose of this post is to underline that there is a significant problem to be addressed. What to do about it will be for another post – there is certainly much that can be done that does not require (1) legislation (2) additional resources or (3) any procedural shortcuts.

Applications

A piece from yesterday’s Planning daily online: Council signs off 2,380-home urban extension almost four years after committee approval (£). Four years is certainly going it some but I can confirm from constant first-hand experience how difficult it can be to move a project from resolution to grant to permission at any speed. The larger or more complex the project, the longer those negotiations over the section 106 agreement and associated aspects can end up taking.

My colleague Lida Nguyen has been looking at the position in London. She has looked at all applications for planning permission which were referred to the Mayor between 3 January and 11 December 2020, so applications of potential strategic importance as defined in the Mayor of London Order 2008 and, for those which were then approved by the relevant borough (without intervention by the Mayor or secretary of State), she has looked at the average time that the application took from validation to the borough’s resolution to approve and from the borough’s resolution to approve to permission being issued. Discarding a few anomalous cases, this left 88 to be analysed.

In my humble view the statistics are appalling, but not surprising:

Application submission to resolution to approve

Median: 228.5 days

Mean: 269 days

Resolution to approve to grant of permission

Median: 218.5 days

Mean: 259 days

It’s rather deflating for applicants and (when you stand back from the detail) surely absurd that resolution to grant in reality only marks the halfway point to a permission in relation to significant projects in London. Wouldn’t it be a start for boroughs, the Mayor and those acting for applicants to set a target of halving each of those figures and agreeing the necessary steps to achieve that reduction?

Appeals

My 25 May 2019 blog post Pace Making: Progress At PINS reported on Bridget Rosewell’s recommendation, adopted by the Planning Inspectorate, that inquiry appeals decided by an inspector (i.e. not recovered by the Secretary of State) should be decided within 24 weeks of receipt and that where the Secretary of State is to be the decision-maker, inspectors’ reports should be submitted to the Secretary of State within 30 weeks of receipt of the appeal. Initial progress was really impressive – until the first lockdown struck in March 2020. After a slow start (see my 2 May 2020 blog post There Is No E In Inquiry), PINS of course eventually, to the massive credit of all involved, embraced virtual hearings, inquiries and examinations and the risk of an impossible backlog was averted. However, it is clear from the latest Planning Inspectorate statistical update (19 August 2021) that there is still much work to do:

“The mean average time to make a decision, across all cases in the last 12 months (Aug 20 to Jul 21), was 27 weeks. The median time is 23 weeks.

The median time to decide a case decreased by 0.6 weeks between June and July 21, with the median being 21.4 weeks.

Median timeliness by procedure type is shown in the summary table below.

Performance since April 21 against the median measure has only varied by 0.7 weeks, between 21.4 weeks and 22.1 weeks. Performance had been improving between November 20 and March 21. For inquiries, in the last two months, cases have taken longer to decide as a result of very old enforcement inquiry cases being decided.

Enforcement decisions made in the last 12 months had a median decision time of 34 weeks. Looking at the annual totals, the median and mean time to decision for specialist decisions have been broadly the same as for enforcement decisions, and longer than the median for planning decisions. Since February 21 there has been a change in this trend, with Specialist cases being quicker than Enforcement.

The median time for planning appeals decided by inquiry under the Rosewell Process over the 12 months to July 21 is 35 weeks. This is quicker than other types of casework decided by inquiry.

Whilst the extent of statistical information provided these days is welcome, it is difficult sometimes to track the figures through the different tables so as to work out what the likely timescale outcome for a prospective appellant will turn out to be. I have also looked in vain within the statistics for any information as the time being taken between appeal receipt and validation – a traditional black hole when it comes to appeal timescales. I’m also struggling to see any breakdown as to what the “Rosewell” inquiries were (35 weeks average) as compared to inquiries overall (79 weeks!).

That overall 27 weeks average is deceptively encouraging for anyone looking at anything other than a written representations appeal. Because those appeals make up 95% of the total of course they massively skew the mean figure. But even then, although not reflected in these statistics, my own anecdotal impression is that validation of appeals which proceed by way of written representations or hearing is very slow indeed, raising a large question mark over the overall statistics. Possibly something to do with the focus on Rosewell inquiry appeal targets. Am I being unfair? What solid information on this is there out there? If there isn’t any, why not??

The Planning Inspectorate Annual Report and Accounts (July 2021) contains further statistical information, with tables such as these looking back at the changing position over the last five years:

In order to meet Rosewell targets, surely on that last table the 90th percentile needs to come down from 66 weeks to 24 weeks – and to be measured from receipt of appeal rather than validation?

Again, as with timescales for major applications in London, with appeal inquiries, surely we are looking at the need to more than halve current timescales?

All tables above have been taken from PINS documentation, for which thanks.

Simon Ricketts, 20 August 2021

Personal views, et cetera

Planning Law Unplanned is having a summer break this week, before returning at 6pm on Tuesday 31 August for somewhat of a BECG/DP9 special, London Elections 2022: Politics Meets Planning. Join the club here for notifications of this and future clubhouse Planning Law Unplanned events.

Photograph by Ben White on Unsplash

Westminster’s Bump In The Road: The Mound

Westminster City Council’s deputy leader Councillor Melvyn Caplan resigned yesterday (12 August 2021) over the summer fiasco of the temporary viewing platform that has been built next to Marble Arch, in the middle of the gyratory roundabout where Park Lane meets Oxford Street. From WCC’s press statement Westminster City Council update on Marble Arch Mound:

The Mound opened too early, and we have apologised for that. It has become clear that costs have risen more than anticipated and that is totally unacceptable. Our original forecast cost was £3.3m. Total costs are now £6m, covering every aspect of the project: construction, operation and eventual removal.”

All credit to Councillor Caplan for taking that honourable step. However, so many questions arise from this:

• On the one hand, is it right for one person to carry the can, but, on the other hand, why don’t we see more examples of leadership like this in local or national government when bigger things go wrong?

• Doesn’t the Council deserve at least some credit for being innovative, in the face of the challenges faced by Oxford Street and the west end? There’s surely nothing wrong with “off the wall” projects as a matter of principle as long as behind the scenes they are as de-risked as possible and it will be a shame if the crushing “computer says no” answer to every idea will now be “remember the mound”.

• When is it appropriate for a public authority to take on this sort of project and when should it de-risk via the private sector? Didn’t it in fact ring alarm bells that a private operator wasn’t prepared to speculate on the project, or weren’t they even given the opportunity?

• Did the computer generated imagery serve to oversell the initial experience?

This project did seem to get an exceptionally easy ride.

The application for planning permission was resolved to be approved on 30 March 2021 and planning permission issued later that day, with the application only having been submitted on 19 February (which was the first time, as far as I know, the project entered the public domain). So applications can be determined quickly (in less than six weeks) under the current system then, even for an eight storey high temporary structure on metropolitan open land next to a grade 1 listed building and with the lead-in to a committee meeting! We’ll all have some of that please.

From the report to Planning Applications Sub-Committee:

“The location of the structure is sensitive due to its setting adjacent to the Grade 1 Listed Marble Area [sic] and location on Metropolitan Open Land (MOL). However, the provision of a temporary visitor is aimed at attracting visitors back to the Oxford Street District by increasing footfall, and supporting economic recovery following the Covid -19 pandemic. This is a clear planning benefit which is considered to outweigh the less than substantial harm that would be caused to the designated heritage assets.

I don’t particularly quibble with the fact that planning permission was granted (and I note that it did have much business support – after all it really wasn’t in principle a bad idea), although it is interesting to see the light touch applied to the sustainability of the project in the officer’s report:

Sustainability:

“Relocation of trees, grass, wood and soil. The proposal is that elements used in the construction of the structure, namely wood, soil, grass, and trees will all find new uses in nearby gardens and parks. The submission refers to ‘a co-ordinated dismantling programme to enable the transplanting of the numerous plants and trees used in landscaping of the hill to other projects in and beyond the Oxford Street District for the benefit of its communities’.

The focus will be on greening school environments, community spaces, and housing amenity areas. The planting used on this project will meet the City Council’s priorities for health and wellbeing. It is envisaged that the project as a whole can then contribute to the development and illustration of the Council’s Green Infrastructure Strategy.

The Head of Arboricultural Services advises that there are limitations on suitable space available for such material and attempting to transplant living plant material is likely to result in a high mortality rate. Therefore, this is unlikely to be a practical proposition. In the circumstances whilst the intention to re-use as much of the structure as possible is welcomed and encouraged. Given potential practical difficulties highlighted it is not recommended that this is secured by condition.”

After planning permission was granted, the final go-ahead for the project was given by cabinet in May 2021.

This what was said about costs:

The current indicative construction costs for the mound are approximately £1.998m. These will be met from the £150m investment in Oxford Street District approved by Full Council in March 2019. Capital expenditure of c£522k will ensure a number of permanent legacy improvements are delivered across the district and this will be met from the approved Highways capital budgets. The potential for significant income generation has been further developed. This will be offset against operational and construction costs to reduce the overall net cost.

To these costs were to be added the costs of the operator contract.

Cabinet were informed as to the prospect of income in the order of £2m being generated by the attraction.

Given that entrance is now going to be free for the duration of August, sadly the figures currently look on the optimistic side.

Why wasn’t there more scrutiny of the budget? Was everyone just caught up in the moment and conscious of the narrow window for pressing the “go” button? After all, warning bell surely, the architects, MVRDV, had previously proposed a very similar scheme for the Serpentine Gallery in 2004, which was abandoned for financial and health and safety reasons (see MVRDV’s proposed 2004 Serpentine Gallery Pavilion was “a heroic failure” (Dezeen, 8 November 2015) ).

My final question was as to the computer generated imagery used to “sell” the project. It looks instagram-amazing – and with a project like this the detail was always going to make the difference between success and failure. It is always going to be about that initial opening day wow factor: wasn’t the real problem (as per the first part of that WCC press statement) just that it really wasn’t ready to be unveiled? Worse things have happened, but it’s obviously difficult when you make a false, and unusual, step in such a high profile location.

Picture courtesy Westminster City Council

Who knows, it might turn out largely as illustrated (just late, like everything) and after all (although perhaps a stretch in this instance), perhaps all publicity is indeed good publicity. I’ll pay a visit to see what all the fuss is about, with maybe a little retail therapy en route (which after all is what it’s all about). Overall it is obvious that mistakes have been made, but (1) (oldest of sayings) let who is without sin cast the first stone and (2) (newest of sayings) don’t you just hate to see a combined media and social media pile-on?

Simon Ricketts, 13 August 2021

Personal views, et cetera

Our Planning Law Unplanned clubhouse event this Tuesday 17 August (6 to 7.15 pm) should be fascinating: “An End To Ugly? The Office for Place & National Model Design Code unpacked”, with special guests Nicholas Boys-Smith, Chris Miele and Vicky Payne. Sign up to the app here.

Picture courtesy Westminster City Council

London Plans

Surely planning becomes a democratic irrelevance when the plan making process is slower than the electoral cycle? That’s pretty much the position in London. After all, Sadiq Khan wouldn’t have managed it if he hadn’t been gifted a further year in post by virtue of the postponement of the May 2020 elections.

Election: 7 May 2016. First consultation document: October 2016. Adopted plan 2 March 2021.

But it doesn’t have to be that way. In fact, it shouldn’t be this way. The plan “must deal only with matters which are of strategic importance to Greater London” (section 334(5), Greater London Authority Act 1999).

My 23 April 2017 blog post Make No Little Plans: The London Plan heralded the imminent publication of initial non-statutory consultation in relation to the new London Plan. The hope at that stage was to have an adopted plan in place by Autumn 2019. I referred to the 400 pages or so of the then current plan and expressed the hope that its replacement would be shorter. Hmm, not so.

One of the issues with this process has certainly been of the Mayor’s making – the sheer bloated nature of the plan, with its excessive layers of detail. What can be done to make sure that this never happens again?

But the other issue has not entirely been of the Mayor’s making. For the whole of his period in office he has faced opposition from Government, which has been placing pressure on him to increase planned housing numbers well beyond the already ambitious and probably unachievable numbers that he has been planning for. See for instance the previous Secretary of State’s 27 July 2018 letter and Robert Jenrick’s 13 March 2020 letter directing that a series of amendments be made to the draft plan.

“I had expected you to set the framework for a step change in housing delivery, paving the way for further increases given the next London Plan will need to assess housing need by using the Local Housing Need methodology. This has not materialised, as you have not taken the tough choices necessary to bring enough land into the system to build the homes needed.

Having considered your Plan at length my conclusion is that the necessary decisions to bring more land into the planning system have not been taken, the added complexity will reduce appetite for development further and slow down the system, and throughout the Plan you have directly contradicted national policy. As you know, by law you must have regard to the need for your strategies to be consistent with national policies.

For these reasons I am left with no choice but to exercise my powers to direct changes.

Your Plan must be brought to the minimum level I would expect to deliver the homes to start serving Londoners in the way they deserve. However, this must be the baseline and given this, I ask that you start considering the next London Plan immediately and how this will meet the higher level and broader housing needs of London.”

Then most recently, only after the Mayor had chased on 9 December 2020 for a response from Government to his April 2020 proposed amendments to address those March 2020 directions, the Secretary of State wrote again on 10 December 2020 with further directions.

But, to accentuate the positive, we now have an adopted new London Plan (542 pages of it).

This is a good Lichfields blog post on it. I did also like this Tom Pemberton post that summarised some of its implications in seven slides.

The whole process will now have to start again, as soon as we are past the 6 May elections, given the Government’s expectation of an immediate review to take into account the current NPPF and the housing numbers deriving from the revised standard method (including indeed its additional 35% figure for London and other major towns and cities). The new numbers are truly challenging/unrealistic (93,500 per annum as against the 52,000 figure in the new plan and annual delivery of less than 37,000).

What a political dilemma for the next Mayor to face – to broker some sort of solution with Government, boroughs, communities, authorities surrounding London and, for so long as there are going to be the range of onerous requirements that are set out in the new plan, developers and funders. On top of all the other challenges post-pandemic, post- Brexit and in the midst of a climate emergency.

And yet numerous candidates have thrown their hats in the ring for 6 May 2021 and we haven’t yet reached the 30 March deadline for delivery of nomination papers (fancy a go?).

I’m chairing a Planning Futures hustings event at 2pm on 9 March 2021, where we will have a number of the candidates or their representatives. It will focus on planning/housing/built environment policies. The event is free so do register and join me.

In preparation I did a little googling to see what the main candidates might be saying that might give some hope that the scale of the challenges ahead are publicly acknowledged.

⁃ Sadiq Khan’s campaign was launched on 4 March, focusing on listing the achievements of his first term rather than setting out any significant new direction or pledges.

⁃ Conservative candidate Shaun Bailey’s campaign website – 100,000 shared ownership homes to be sold at £100,000 each – a London Infrastructure Fund to fund long-term transport projects.

⁃ Green Party candidate Sian Berry’s campaign website – would set up “a People’s Land Commission to find small sites for new homes, green spaces and community support”. “In addition to using existing powers including compulsory purchase orders, I will also continue to lobby central Government for a devolved or national “community right to buy” which will create new rights for local community groups to buy any land or property that is neglected, empty and needed for community uses”.

Liberal Democrat party candidate Luisa Porritt’s campaign includes “homes in the heart of the city”, “a green roadmap” and “reinvent the high street”.

⁃ Women’s Equality Party candidate Mandu Reid: “Stand with us to make sure no woman is turned away from refuge, to close the pay gap in a generation, to balance work and family life for everyone, and to make London the first gender equal city in the world.”

⁃ UKIP candidate Peter Gammons will “will focus on new housing in every borough, holding developers accountable for providing affordable housing and prioritising Londoners.” He has apparently written a book, “London – a road map for recovery”, although I couldn’t find it on Amazon.

I think we need to get beyond these platitudes, and that is what I shall attempt to do on Tuesday….

Simon Ricketts, 6 March 2021

Personal views, et cetera

London, 1572. Those were the days.

Art 4 Life

Article 4 directions are a small but essential cog in the complicated machine that is the English planning system. With the more widespread reliance by Government on permitted development rights, it falls to local planning authorities to make article 4 directions to disapply, where appropriate, those rights in relation to specific types of developments and/or in specific areas.

From 1 August 2021, we are potentially approaching a breakdown in this machine in the face of the proposed class E to class C3 permitted development right which I wrote about in my 4 December 2020 blog post E = C3.

But first a few basic points to note about the way these cogs work:

1. Article 4 directions do not have to be approved by the Secretary of State but he can intervene where he considers that a direction is inappropriate.

2. Unless an article 4 direction takes effect at least a year after it was first publicised, in certain circumstances the authority can be liable to claims for compensation where someone can show they incurred abortive expenditure or otherwise suffered loss or damage as a result of the direction.

3. For permitted development rights where prior approval of certain matters is required before the right can be relied upon, the prior approval needs to be secured before the direction takes effect and needs to be completed within three years of prior approval.

The role of article 4 directions has increased with the gradual spread of “resi conversion” permitted development rights since 2013.

The office to residential permitted development right was first introduced in May 2013. At that time the legislation included a specific list of “excepted areas” within which the right did not apply, for instance London’s central activities zone. The Government was not adverse to threatening intervention where authorities sought to introduce blanket article 4 directions in relation to other areas, for instance its well publicised spat at the time with the London Borough of Islington.

In 2016 the right was made permanent. The list of excepted areas was scrapped but only as from 30 May 2019 so as to give affected authorities time to put article 4 directions in place as appropriate (see Lichfields’ 14 March 2016 blog post Office to Residential Permitted Development Right Made Permanent.

There is now indeed a patchwork of article 4 directions across the country, disapplying “resi conversion” permitted development rights in relation to many areas of the country. Focusing on central London, here is how the “offices to resi” rights is disapplied in RBKC and in Westminster for instance.

When Class E was introduced from 1 September 2020 (see my 24 July 2020 blog post E Is For Economy for more detail) existing permitted development rights were kept in place until 31 July 2021 (applying to what the uses would have been categorised as prior to the creation of Class E) so as to give the Government time to introduce new permitted development rights that apply to Class E.

The consultation period on the proposed new development rights closed on 28 January 2021 and the Government has come under fire from many quarters for the intended breadth of the new rights (for instance, here is the British Property Federation’s response). The statutory instrument to introduce the new rights (and in part replace the old rights, which will expire) has not seen the light of day and we are now around six months away from what might be termed PD-Day, 1 August 2021.

Some big questions arise and discussions within Town with Duncan Field and other partners and colleagues have been really useful. I’m not going to give away for free our entire Town “house view” but I’m just going to state the obvious:

⁃ the existing permitted development rights that attached to uses now within Class E will fall away after 31 July 2021, the end of the “material period” in the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020, unless secondary legislation extends the material period for those purposes, as a stop gap.

⁃ it is questionable whether existing article 4 directions would restrict the operation of any new permitted development rights that are introduced, even where the change is still, say, offices to residential (and some changes that, according to the Government’s consultation proposals, will now be possible are entirely new, e.g. restaurant, indoor sports hall or creche to residential).

⁃ As a matter of principle an article 4 direction cannot be made in relation to a future permitted development right, so authorities’ hands are tied until the statutory instrument containing the new rights is actually made.

⁃ plainly there is no time for authorities to give a year’s advance notice in relation to any new article 4 direction that is to take effect from 1 August 2021, so any more immediate restrictions would expose authorities to the risk of compensation claims (unless there is some specific transitional arrangement in the new rights, for instance if the new rights would permit development that before 1 August 2021 have been restricted by an article 4 direction, but that will not be straight-forward at all).

It is interesting that when the “excepted areas” system was abolished in 2016 authorities were given sufficient time to put article 4 directions in place. In the rush this time round, either this issue has been overlooked or the Government is seeking to sidestep the article 4 direction process and create some kind of gold rush for prior approvals before directions can be introduced and take effect. After all its antipathy towards article 4 directions in the “resi conversions” area, save where exceptionally justified, is plain from its recent consultation on proposed changes to the NPPF:

Article 4 directions

“We also propose clarifying our policy that Article 4 directions should be restricted to the smallest geographical area possible. Together these amendments would encourage the appropriate and proportionate use of Article 4 directions.”

“The use of Article 4 directions to remove national permitted development rights should

• where they relate to change of use to residential, be limited to situations where this is essential to avoid wholly unacceptable adverse impacts

• [or as an alternative to the above – where they relate to change of use to residential, be limited to situations where this is necessary in order to protect an interest of national significance]

• where they do not relate to change of use to residential, be limited to situations where this is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 directions to require planning permission for the demolition of local facilities)

• in all cases apply to the smallest geographical area possible.”

The flexibility introduced by permitted development rights is necessary and welcome but let’s not focus on that lever without making sure that there isn’t going to be an almighty crunch when it is pulled. What am I missing here folks?

Simon Ricketts, 27 February 2021

Personal views, et cetera

PS If you’re on Clubhouse, I’ll be joined by some other friendly planning solicitors, barristers and planners to talk about this and other topical planning law issues at 6pm on Tuesday 2 March, details here. Do join us!

Temporary Covid Measures – Planning, Traffic, Local Government: There May Be Trouble Ahead

So friends, here we are, still in the most tedious sequel in the whole franchise: Lockdown 3. Of course, the vaccines will be the eventual way out 💪 this year but can anyone predict how many more months will go by before, in England, we are free from some level of restrictions on our ability to go about our lives?

The planning system has kept going through all of the restrictions of the last ten months, thanks to the determination of local authority staff and councillors, thanks to technology and thanks to the Government in providing for a number of temporary procedural relaxations last Spring. The relaxations were summarised in my 16 May 2020 blog post Stay Alert! A Quick Guide To All Those MHCLG Announcements.

However, there is no reason to be complacent:

⁃ Some temporary measures are due to expire and there is no certainty that they will be extended.

⁃ Covid does not give carte blanche to local authorities to cut corners in their approach to decision making – I deal below with last week’s High Court ruling in relation to Transport for London’s Streetspace plan.

⁃ If initially temporary measures are to be made permanent (rather than just extended to see us through this current saga), that should surely be after careful review and reflection.

I’m going to deal with that last point first. On 16 December 2020 and without prior consultation the Government laid two statutory instruments (Environmental Assessment of Plans and Programmes (Amendment) Regulations 2020 and Infrastructure Planning (Publication and Notification of Applications etc.) (Amendment) Regulations 2020) before Parliament, the effect of which was to make permanent the ability for plan makers and promoters to dispense with making copies of documents physically available for inspection, instead providing them on a website to which consultees are directed, in relation to strategic environmental assessment (i.e. , basically, sustainability appraisals in relation to plans) and in relation to nationally significant infrastructure projects.

As summarised in the explanatory memorandum accompanying the first set of Regulations:

“In addition to publishing documents on a public website, responsible authorities (or the Secretary of State, as the case may be) will now be required to: make available a telephone number for the public to raise enquiries in relation to any documentation published; provide by mail hard copies of any documentation upon request, subject to a reasonable charge and provided it is reasonably practicable to do so given precautions and other measures relating to coronavirus; and provide copies of any documentation by email upon request. Guidance will set out that authorities may also offer electronic copies of documents available on USB flash drive to those with access to a computer but without access to the internet, and that they may wish to consider waiving any charge for hard copies of documents to members of the public who are unable to access the documentation electronically or find it difficult to do so.”

Making these changes permanent without consultation was strongly criticised by the House of Lords Secondary Legislation Scrutiny Committee in its 21 January 2021 report. This is the summary at the beginning of the report:

“These two instruments remove permanently publication and publicity requirements for certain planning matters that were suspended temporarily last year to assist authorities in taking forward relevant plans, programmes and projects during the pandemic. The Ministry of Housing, Communities and Local Government (MHCLG) says that it is not aware of any concerns about the changes and that the move to more digital processes has been broadly welcomed, though support for the changes seems to have come largely from those involved professionally in the planning process.

We regret that there was no formal public consultation, as the changes have the potential to reduce physical access to information and the ability to make representations for the general public and in particular for vulnerable or disadvantaged groups or those with poor or no internet connection, in relation to important infrastructure, housing or other projects that may impact on them. The House may wish to ask the Government to update Parliament on the impact of the changes. The possibility that requesting hard copies of potentially complex planning documents may incur an undefined ‘reasonable charge’ also gives cause for concern. Taken as a whole, these proposals seem likely to increase rather than narrow any gap between the planners and the people whose lives may be affected. We also regret that MHCLG has again used secondary legislation to make significant, permanent changes to planning legislation during the pandemic.”

In the body of the report:

“Asked why the instruments had not been extended, as other measures dealing with the impacts of the pandemic, MHCLG told us that, in addition to moving towards a digital planning system, making the changes permanent:

“avoided some uncertainty about whether it would be possible to make Regulations providing for a further extension of all of these measures in a timely way in due course. This is because the measures are made in part under the powers set out in section 2(2) of the European Communities Act 1972 and these powers were only available until the end of the EU Exit Implementation Period (11pm on 31 December 2020)”.

We are not convinced by MHCLG’s explanation. The instruments were laid and came into force before the expiry of relevant powers at the end of the Transition Period, suggesting that MHCLG could have chosen to legislate for a further extension, rather than making the changes permanent. The House may wish to press the Minister for further explanation of the Government’s approach.”

Whilst these specific, initially temporary, publicity relaxations have been made permanent, the wider temporary changes to publicity requirements for planning applications introduced through the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 and the Town and Country Planning (Local Planning, Development Management, Listed Buildings etc) (England) Regulations 2020 are still due to expire on 30 June 2021 unless extended.

No doubt there will be an extension if it is needed (and let us hope that it isn’t). What is much more worrying is the imminent expiry on 6 May 2021 of the power for local authorities to hold virtual meetings, provided by Regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 . The concern is that the basis for this temporary relaxation in local government law is Section 78 of the Coronavirus Act 2020. Sub-section (3) provides:

The regulations may make provision only in relation to local authority meetings required to be held, or held, before 7 May 2021.

MHCLG’s current view is apparently that power to hold virtual meetings cannot be extended without primary legislation to amend section 78 and this may not be possible – see ‘Councillors could be disenfranchised without remote meetings’ (Local Government Chronicle, 21 January 2021).

This could be a real problem and needs to be grappled with now. I would be very pleasantly surprised if normal life has resumed by 6 May to such an extent that everyone is available to attend planning committee and other meetings in the same way as before the pandemic. Let’s be clear, without virtual planning committee meetings, the planning system (at least on any democratic basis, as opposed to wholesale reliance on officers’ delegated powers) would have shut down for the last ten months.

Finally, on the subject of temporary powers and measures:

⁃ the emergency permitted development right for the NHS and local authorities to provide additional temporary health and local authority facilities introduced by the Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 has been extended to 31 December 2021.

⁃ the additional allowance for temporary use of land expires on 31 December 2021 and the right for a local authority to hold a market for an unlimited number of days expires on 23 March 2022, both introduced by the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 and then extended by the Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020.

⁃ I am not aware of any proposal for any extension of the duration of certain planning permissions and consents beyond that provided for in the Business and Planning Act 2020.

Surely it’s going to take some time and evidence-gathering to work out what the benefits of each of these measures have been, what problems may have arisen and which processes and rights (if any) should now be permanently adopted. For instance, for my part, I see great advantages to the inclusivity that has come with virtual planning committee meetings and indeed appeal inquiries and hearings and I hope that we do not return entirely to old ways. However, we should not be bumped into permanent change without that process of reflection.

The judgment deserves a blog post of its own, but the dangers that arise where decisions are made under the justification of Covid but which have more widespread effects which may not have been properly considered are illustrated starkly by the Streetspace case, R (United Trade Action Group & others) v Transport for London (Lang J, 20 January 2021)

This was a challenge by London taxi drivers to the London Streetspace Plan, the related Interim Guidance to Boroughs and the A10 GLA Roads (Norton Folgate, Bishopsgate and Gracechurch Street, City of London (Temporary Banned Turns and Prohibition of Traffic and Stopping) Order 2020.

As summarised by Lang J:

“The Mayor issued the Plan on 6 May 2020, in response to the COVID 19 pandemic. The Guidance was published by TfL on 15 May 2020. Broadly, the aim of the Plan and the Guidance is to facilitate walking and cycling by providing more dedicated road space for pedestrians and cyclists, and “suppressing” motor vehicle traffic, other than buses.”

“The A10 Order is a traffic management order (“TMO”) made by TfL on 16 July 2020, under section 14(1) of the Road Traffic Regulation Act 1984 (the “RTRA 1984”). It is a temporary measure, due to expire by 15 January 2022 at the latest. It imposes extensive restrictions on motor vehicles, other than buses, along the A10 at Bishopsgate and Gracechurch Street in the City of London, from 7 am to 7 pm on weekdays. There are limited exemptions, but not for taxis.”

The judgment contains a detailed account of the effects of Covid lockdown measures on traffic in the City of London and the traffic measures introduced by the Mayor during the period. The contentious nature of decisions which balance priorities as between the use of streets by through traffic and by communities has been one of the political themes of the pandemic, particularly in London. This judgment is going to be carefully scrutinised by all sides in that particular debate. This is an interesting OnLondon piece about the ruling and its implications, High Court ruling means major rethink for Mayor’s ‘seriously flawed’ Streetspace scheme (OnLondon, 21 January 2021) but here are Lang J’s conclusions:

“278. Ground 1: in making and promulgating the Plan and Guidance, the Mayor and TfL failed to distinguish taxis from “general traffic”. In doing so, they failed to have regard to relevant considerations, namely:

a) the distinct status of taxis as a form of public transport, reflected both in law and policy;

b) the role played by taxis in facilitating accessible public transport for those with mobility impairments.

However, Ground 1 did not succeed in respect of the A10 Order.

279. Ground 2: In making the Plan and Guidance and the A10 Order, TfL and the Mayor failed to have proper regard to the public sector equality duty, pursuant to section 149 of the Equalities Act 2010.

280. Ground 3: The economic benefits which taxi drivers derive from their statutory licences, which entitle them to ply for hire throughout London, are a “possession” within the meaning of A1P1 ECHR [article 1 protocol 1 of the European Convention on Human Rights], and so A1P1 is engaged. However, because of the way in which this challenge was formulated, and insufficient evidence, the Claimants failed to establish an interference with their possessions by control of use.

281. Ground 4: The Plan and Guidance and the A10 Order breached the Claimants’ legitimate expectation to pass and repass on London’s roads, and to use lanes reserved for buses.

282. Ground 5: The treatment of taxis in the Plan and Guidance and the A10 Order was irrational.

283. In my judgment, quashing orders rather than declarations are appropriate because of the nature and extent of the unlawfulness which I have identified, which affects not only taxi drivers, but also their passengers. The Plan, the Guidance and the A10 Order all need to be re-considered by the Defendants and substantially amended in the light of my judgment. To reduce disruption, the Defendants can turn their minds to this task now, on a provisional basis, as there will be a stay and a delay whilst they pursue their appeal. If the appeal is unsuccessful, they can apply for further time (if required) to finalise the proposed revised Plan, Guidance and Order before the quashing orders take effect.”

So, watch this (street)space.

In the meantime, another date that is of course looming is 6 May 2021, local government elections. The Government is not presently intending to delay them again. That was particularly clear from MHCLG minister Luke Hall’s 19 January 2021 letter to Croydon Council (again for an explainer about this – campaigners had been pushing the council for a referendum into whether there should be a directly-elected Mayor for Croydon, which the council had been seeking to delay on Covid grounds – see the OnLondon 19 January 2021 piece Croydon: Government tells council it should hold governance referendum on 6 May (OnLondon, 19 January 2021).

Wouldn’t it be fantastic if things were indeed sufficiently normalised by 6 May 2021?! (But, in small font, what if they are not?).

Simon Ricketts, 23 January 2021

Personal views, et cetera

courtesy TfL

Quantity Street Fudge

On 16 December 2020 the Government abruptly abandoned its proposed revised standard method for calculating local housing need, in the face of political and media pressure from those who saw the method increasing substantially the figure for their particular areas. I covered the consultation as to the proposed revised method in my 29 August 2020 blog post, asking whether we might see a fudged outcome.

My piece referred to press pieces such as the article by Conservative MP for Harborough, Neil O’Brien, The next algorithm disaster – coming to a Conservative constituency near you. This time, it’s housing growth. (ConservativeHome, 24 August 2020)and Planning algorithm may destroy suburbia: Tory MPs warn Boris Johnson. (Times, 29 August 2020). “Mutant algorithm” they all said.

So the Government has decided to stick to its previous 2017 method (just as much of an algorithm, equally “mutant”), one based on out of date household formation figures from 2014 (2014!), but with a heavy handed readjustment of the figures to ensure that they still add up to 300,000 homes (a number which itself has no empirical basis – but reflective of the extent of the, plain to see, housing crisis). The heavy handed-adjustment? To increase the relevant figure by 35% for England’s 20 largest towns and cities, including London.

Imagine if a local planning authority attempted to include housing numbers in its plan in such a way, without evidence! (Or indeed if it introduced a blanket “approve it all” policy equivalent to the effect of the new class E to C3 PD right!).

If anyone knows about planning and housing, it’s Chris Young QC. He had put forward constructive suggestions for improving the proposals given the unduly low numbers the draft revised method would have achieved for much of the north. His subsequent LinkedIn post was incandescent:

“- Confused about the “new” Standard Method?

– Baffled why it fails to address levelling up across the North?

– Mystified why in an economic crisis, Govt would focus on the largest cities where apartment prices are falling?

– Troubled by the urban focus, when overcrowded housing is a key factor for the UK having the highest Covid 19 death rate in Europe?

Well, here’s what just happened

Govt introduced Standard Method 1 in 2017 to make housing targets simpler. But it added up to less than its own 300,000 annual target, and collapsed housebuilding in the North

In August, Govt consulted on a revised version. But it contained a double affordability uplift which piled the numbers into the Shires, causing a Tory revolt

Then experts in this field came up with a more appropriate set of numbers focussing on achieving 300,000 and levelling up the North.

And then Ministers bottled it

They decided to leave the formula, which they know doesn’t work, the same. But add 35% to the major constrained cities nearly all of which are Labour controlled, pinning their hopes on a collapse in the office market and town centres and the use of PD rights

Housing policy in this country is not about housing people. Its now 100% about politics”

I’ve no problem with an urban focus, but what really is the point when those higher numbers will not be achieved, meaning an inevitable failure to achieve the overall target?

Let’s take a step back (watch out for the Christmas tree though).

The Government’s NPPF tells local planning authorities this:

“To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.” (paragraph 60).

The new standard method is incredibly important, both for this purpose, and because it will form the basis for the new plan-making system proposed in the white paper, where local planning authorities will have to plan, without deviation, for the numbers handed down to them (numbers which will be based on this standard method and then tweaked by government by way of an as yet undevised process).

To understand the detail what has now been introduced, and the justifications given, there are four relevant documents, all published on 16 December 2020:

⁃ press statement, Plan to regenerate England’s cities with new homes 16 December 2020

written ministerial statement

changed planning practice guidance

the Government’s response to the local housing need proposals in “Changes to the current planning system”

The response document tries to downplay the role of the numbers – making them out not to be a “target” but a “starting point”:

“Many respondents to the consultation were concerned that the ‘targets’ provided by the standard method were not appropriate for individual local authority areas. Within the current planning system the standard method does not present a ‘target’ in plan-making, but instead provides a starting point for determining the level of need for the area, and it is only after consideration of this, alongside what constraints areas face, such as the Green Belt, and the land that is actually available for development, that the decision on how many homes should be planned for is made. It does not override other planning policies, including the protections set out in Paragraph 11b of the NPPF or our strong protections for the Green Belt. It is for local authorities to determine precisely how many homes to plan for and where those homes most appropriately located. In doing this they should take into account their local circumstances and constraints. In order to make this policy position as clear as possible, we will explore how we can make changes through future revisions to the National Planning Policy Framework, including whether a renaming of the policy could provide additional clarity.”

Weaselly words! Of course they are a target. This methodology can no longer be said to be a proper methodological assessment of local need based on demographics and household formation rates – if nothing else, the 35% uplift for the major towns and cities puts paid to that. The justification given for the uplift is a policy justification:

“”First, building in existing cities and urban centres ensures that new homes can maximise existing infrastructure such as public transport, schools, medical facilities and shops. Second, there is potentially a profound structural change working through the retail and commercial sector, and we should expect more opportunities for creative use of land in urban areas to emerge. Utilising this land allows us to give priority to the development of brownfield land, and thereby protect our green spaces. And third, our climate aspirations demand that we aim for a spatial pattern of development that reduces the need for unnecessary high-carbon travel.”

I quoted Chris Young earlier. For an equally brilliant, expert and authoritative analysis how about Lichfields? This is a superb post by Matthew Spry and Bethan Hayes Mangling the mutant: change to the standard method for local housing need on the day of the announcement, including indications as to what the new numbers will mean for the 20 largest towns and cities:

Courtesy of Lichfields

How quickly will the changes come into effect? The Government’s response document says this:

“From the date of publication of the amended planning practice guidance which implements the cities and urban centres uplift, authorities already at Regulation 19, will have six months to submit their plans to the Planning Inspectorate for examination, using the previous standard method. In recognition that some areas will be very close to publishing their Regulation 19 plan, these areas will be given three months from the publication date of the revised guidance to publish their Regulation 19 plan, as well as a further six months from the date they publish their Regulation 19 plan to submit their plan to the Planning Inspectorate for examination, to benefit from the transition period.

The standard method has a role not only in plan-making, but is also used in planning decisions to determine whether an area has identified a 5 year land supply for homes and for the purposes of the Housing Delivery Test (where strategic policies are more than five years old). Where this applies, the revised standard method (inclusive of the cities and urban areas uplift) will not apply for a period of six months from the publication of the amended planning practice guidance. After 6 months, the new standard method will apply.

For London:

“It is clear that in London, in the medium term, there will need to be a much more ambitious approach to delivering the homes the capital needs. The Secretary of State for Housing, Communities and Local Government expects to agree the London Plan with the Mayor shortly. This new plan, when adopted, will set London’s housing requirement for the next 5 years. The local housing need uplift we are setting out today will therefore only be applicable once the next London Plan is being developed. In order to support London to deliver the right homes in the right places, the government and Homes England are working with the Greater London Authority to boost delivery through the Home Building Fund. Homes England has been providing expertise and experience to support the development of key sites in London. Sites like Old Oak Common, Nine Elms and Inner East London provide opportunities to deliver homes on significant brownfield sites. The Secretary of State for Housing, Communities and Local Government will consider giving Homes England a role in London to help meet this challenge, working more closely with the Greater London Authority, boroughs and development corporations to take a more direct role in the delivery of strategic sites in London and the preparation of robust bids for the new National Homebuilding Fund.”

A final musing for the lawyers. It has become a bit of a knee jerk reaction to proposals to question whether strategic environmental assessment was in fact required but…was it?

The criteria were recently set out again in R (Rights : Community : Action) v Secretary of State (Divisional Court, 17 November 2020):

“From the statutory framework it can be seen that a plan or programme is only required to be the subject of an environmental assessment if all four of the following requirements are satisfied:-


(1) The plan or programme must be subject to preparation or adoption by an authority at national, regional, or local level, or be prepared by an authority for adoption, through a legislative procedure by Parliament or Government;


(2) The plan or programme must be required by legislative, regulatory or administrative provisions;


(3) The plan or programme must set the framework for future development consents of projects; and


(4) The plan or programme must be likely to have significant environmental effects.”

It was held in that case that the GPDO and Use Classes Order changes did not require SEA because they do not set the framework for future development consents.

The previous challenge to NPPF changes in Friends of the Earth v Secretary of State (Dove J, 6 March 2019) had also failed. Dove J held that, whilst it did set the framework for subsequent development consents, the NPPF was not a measure “required by legislative regulatory or administrative provisions“.

But what is wrong with the following analysis?

⁃ criterion 1 – standard method = a plan prepared by government

⁃ criterion 2 – standard method = a plan required by administrative provisions, i.e. required by NPPF paragraph 60

⁃ criterion 3 – standard method sets framework for local plans and for decision making – e.g. onus on the major towns and cities in their next plans to plan for 35% more homes or suffer consequences via the tilted balance and housing delivery test – indeed geographically specific in a way which the NPPF and PPG has previously largely avoided

⁃ criterion 4 – standard method likely to have significant environmental effects – of course.

In any event, wouldn’t some evidence be helpful, as well as a proper assessment of impacts and alternatives, before lurching to a new system that has moved a long way further away from being any methodological assessment of local housing need?

Merry Christmas!

Simon Ricketts, 19 December 2020

Personal views, et cetera

Court Challenges Undo Previous Blog Posts: Westferry, Dill

No-one embarks lightly on litigation but there have been two striking examples this week of what it can achieve. Sometimes it doesn’t even need a hearing (first example) and sometimes it’s on the final roll of the dice (second example).

Westferry Printworks

The Secretary of State’s decision to grant planning permission, against his inspector’s recommendations, for a large development on Docklands – with the decision issued a day before the developer’s CIL liability would have increased by up to £50m – was an eye opener. I covered it, and Tower Hamlets’ reaction, in my 18 January 2020 blog post Westferry Printworks Decision: LPA Reaction Unprintable.

The Council followed through with its threat of a legal challenge to the decision, as did the Mayor of London.

It was frankly surprising to hear this week that the Secretary of State has consented to judgment. I do not think that the consent order itself, which would set out the reasoning agreed by the parties and sealed by the court, is yet in the public domain but there are these two press statements from those involved:

Westferry Printworks: Secretary of State Accepts “Apparent Bias” in His Decision and Consents to Judgment (Francis Taylor Building press statement, 21 May 2020) (FTB’s Melissa Murphy acted for the Mayor).

Council forces government to concede illegality in making decision on controversial Westferry Printworks scheme (London Borough of Tower Hamlets press statement, 22 May 2020) (Sasha White QC and Gwion Lewis have been acting for Tower Hamlets).

To quote from the FTB statement:

“The consent order reflects the fact that in pre-action correspondence, the Secretary of State explained that the decision letter was issued on 14 January 2020, rather than the following day, so that it would be issued before Tower Hamlets adopted its new local plan and CIL charging schedule. He accepted that the timing of the decision letter, thereby avoiding a substantial financial liability which would otherwise fall on the developer, would lead the fair minded and informed observer to conclude that there was a real possibility that he was biased in favour of the developer. He accepted that the decision letter was unlawful by reason of apparent bias and should be quashed. The Mayor/GLA’s challenge was therefore academic, but he agreed to pay their costs. “

Those of us not close to what happened can only speculate but why would the Secretary of State cave in rather than face a hearing? Was he worried as to what might be made public in a trawling over of internal correspondence and notes? Echoes of the Mayor’s recent consenting to judgment in the Kensington Forum case (see my 14 March 2020 blog post, London, Friday the 13th).

The appeal will now need to be redetermined and, which is an expensive consequence for the developer of these events, even if the appeal is allowed second time around, the higher CIL figure will be payable.

Dill

I recounted this saga, about a lost pair of urns which were the subject of a listed building enforcement notice, at the time of the Court of Appeal ruling (see my 1 December 2018 blog post Is It A Listed Building? No Statuary Right Of Appeal). I still like the title to the post but the rest of it is now out of date – the effect of the Supreme Court’s ruling in Dill v Secretary of State (Supreme Court, 20 May 2020) was basically to remove the word “no” from my blog post: in defending a listed building enforcement appeal it is now possible to raise the argument that the listed building is not in fact a building (and the court gives some guidance as to what constitutes a “building” for these purposes). See also this excellent summary: Supreme Court rules on the meaning of listed building (39 Essex Chambers, 20 May 2020 – Richard Harwood QC appeared for Mr Dill, instructed by Simon Stanion at Shakespeare Martineau).

Aside from the substantive legal points, which are important, the interesting thing about the case for me is that persistence paid off. The inspector found against him, Singh J at first instance found against him, the Court of Appeal found against him but Mr Dill and his legal team did not give up. The costs of losing would no doubt have been as significant for Mr Dill as the CIL consequences for Tower Hamlets in Westferry.

And whilst the outcome of the case did not remove the spectre for Mr Dill of continued battles – the listed building enforcement notice appeal would now need to redetermined – Lord Carnwath concluded his final judgment before retiring from the Supreme Court with these words:

I understand that this will be deeply frustrating for Mr Dill. There is as I understand it no suggestion that he acted other than in good faith in disposing of items which he believed to be his own disposable property, and had been so treated by his family for several decades. Since this problem was first drawn to his attention by the local authority in April 2015 he has been attempting to obtain a clear ruling on that issue. On the view I have taken, that opportunity has been wrongly denied to him for five years. Even if his appeal were ultimately to fail, the practicability of restoring the vases to their previous location in the grounds of Idlicote House is uncertain. Accordingly, this court’s formal order for remittal should not prevent the respondents from giving serious consideration to whether in all the circumstances it is fair to Mr Dill or expedient in the public interest to pursue this particular enforcement process any further.”

Concluding thoughts

Well done to the successful claimants and legal teams in both cases. But “snakes and ladders” and “final roll of the dice” analogies are not far off the mark, are they? How to arrive at a system that is more simple and not dependent on expensive, uncertain litigation? Perhaps by reducing the politics (removing the ability for the Secretary of State to recover appeals?), certainly by trying to make sure that legal principles are simpler (if you do the maths, in Dill one inspector and four judges were overruled by five judges, over those narrow “legal exam” questions, following submissions prepared by five barristers and their associated legal teams – the whole process ultimately to be paid for by us, the tax payer, save for those costs which Mr Dill cannot recover).

Simon Ricketts, 23 May 2020

Personal views, et cetera

Key Worker Affordable Housing

The Clap for Our Carers phenomenon reflects heartfelt gratitude for what is currently being done, for all of us, by NHS staff, carers and others carrying out essential services. But clapping is glib. Many of us no doubt feel uneasy. After all many or most of those to whom we owe so much:

⁃ are in jobs in the public sector, or are employed by companies contracted to the public sector, and have seen particular and significant pressure on their incomes for many years;

⁃ are doing those jobs in the absence of adequate facilities and equipment, due to longstanding restrictions on public spending, lack of investment at necessary levels and/or a lack of organisational foresight;

⁃ are not UK nationals and have had to suffer an increasingly hostile environment, catalysed by Brexit;

⁃ due to the loss over time of traditional indentured accommodation and massive house price inflation, particularly in London, have found themselves unable to live in decent accommodation convenient to their work, despite often needing to work at unsocial times or being “on call”.

Plainly there will be a reckoning on many fronts when this immediate crisis is over but will one consequence be a fresh focus on the role of key worker affordable housing?

The NPPF affordable housing definition includes housing for “essential local workers” but, whilst many individual local authorities and registered providers may still prioritise some applications from local key workers, variously defined, there has been no central Government encouragement, let alone funding, for key worker accommodation for many years.

In fact the background to the demise of any focus on accommodation for key workers is well described in a November 2019 presciently topical Policy Exchange paper, Revitalising Key Worker Housing by Jack Airey (now of course a No 10 policy advisor) and Sir Robin Wales (previously leader, and then mayor, of Newham Council).

Back in 2000, the Blair Government launched the Starter Home Initiative, which aimed to provide low cost home ownership for key workers, primarily nurses, teachers and police officers.

The then housing minister Tony McNulty, responded to a question in the Commons as to what progress had been made on providing key workers with affordable housing in central London:

The Government recognise the importance of affordable housing for key workers in London in maintaining balanced and successful communities.

£146 million of the £250 million Starter Homes Initiative has been allocated to London schemes and will help around 4,600 key workers to realise their aspirations of home ownership. We hope that the initiative will act as a catalyst, and encourage other innovative approaches to housing key workers.

The NHS in London is providing 2,000 units of affordable rental accommodation for health staff in the three years up to June 2003.”

However, as summarised in this 2004 Guardian article:

Uptake was slow and the help available often failed to keep pace with rapidly rising property prices. As it was confined to just nurses, teachers and police officers, it was also criticised as too narrowly focused.

In March 2004, the government devoted more resources to the problem and replaced the SHI with a £690m programme called Key Worker Living (KWL). Under the new scheme, eligibility for assistance was broadened to include social workers, fire-fighters, and prison and probation service staff.

The type of housing assistance offered under KWL was also expanded to include ‘intermediate’ rented housing – priced at levels above those of traditional social housing, but still below market rates.”

As described by Shelter, four products were available to key workers under KWL

⁃ equity (“Homebuy”) loans of up to £50,000 to buy a home;

⁃ higher-value equity loans up to £100,000 for a small group of London school teachers with the potential to become leaders in their field;

⁃ shared-ownership of newly built properties; and

⁃ intermediate renting at subsidised levels

Until April 2008, KWL leases contained a clawback provision where the beneficiary ceased to be a key worker.

In the affordable housing reforms, and grant cut backs, following the global financial crisis and the 2010 general election, there was no longer any specific key worker housing “pathway” promoted or funded by Government. The focus has instead been on “affordability” judged by reference to rental/income levels and without reference to the applicant’s occupation. Responsibility for affordable housing in London transferred to the Mayor in April 2012 and since his election in 2016 Sadiq Khan has pursued a specific approach, driven by the obvious concern that the Government’s definition of “affordable rent”, based on discount to market value, does not necessarily enable local housing needs in London properly to be met. On London’s Dave Hill has written a good explainer, What are London ‘affordable’ homes and who can afford them? (17th December 2018), subtitled “An attempt to explain the almost unexplainable”.

The specific challenges faced in London have been covered well in papers such as these:

Fair to middling: report of the Commission on Intermediate Housing (November 2015)

Estimating the Value of Discounted Rental Accommodation for London’s ‘Squeezed’ Key Workers (Dolphin Square Foundation, October 2016)

Back in December 2019 the Mayor promised a consultation in intermediate housing during the course of 2020 “which will seek views on a range of issues, including how we can ensure that key workers benefit from intermediate housing in the capital”.

From a national perspective, we did see reference to key workers in the Government’s February 2020 consultation document on its proposed First Homes programme, “prioritised for first-time buyers, serving members and veterans of the Armed Forces, and key workers, such as nurses, police and teachers” (see my 29 February 2019) blog post (perhaps the Policy Exchange influence there, in the light of its December 2019 report?), but what is the Government’s stance more generally as to whether key workers should be given priority in relation to particular forms of affordable housing?

And indeed (the point at which the nice ideas start to stall), how do you even define “key workers”? The “essential workersdefinition may be appropriate for the purposes of the current Covid-19 crisis but would not necessarily be appropriate in the longer term – it is in some instances potentially too narrow and in other respects too wide.

The difficulty is possibly rooted in an uncomfortable fundamental truth. In a functioning market-based economy, who isn’t a key worker? The problem is rather that there are many people, some skilled some unskilled, carrying out relatively poorly paid roles, without which society certainly couldn’t function, and who cannot secure adequate, suitable and convenient accommodation due to the disparity between what they earn and the cost of renting or owning property.

The “correct” longer term solution is plainly a twofold one of significantly raising those earning levels (which is not going to be easy as presumably we enter another economically challenging period) and of reducing, or at least stabilising, property costs (also not easy, given lack of supply). We will only ever paper over part of the problem of inadequate salary levels by requiring developers to subsidise the affordability gap.

But in an imperfect world of course we do need an “incorrect” shorter term solution, which surely must be to ensure that those in defined categories of occupation are now given proper priority when it comes to affordable housing tenures of all kinds, and that developers who are prepared to make a meaningful commitment in that respect (particularly if supported by employers of key workers) are not faced with an overly restrictive application of local affordable housing policies until such time as those policies catch up.

Our carers (widely defined) certainly deserve a lot more than a badge at the end of this.

Simon Ricketts, 18 April 2020

Personal views, et cetera

NB Thank you to my Town colleague Lida Nguyen for some background research.

London, Friday The 13th

I’ll pass for now on Thursday’s Planning For The Future and indeed Wednesday’s budget. It’s one week at a time at the moment isn’t it? Planning for the future, and the wider politics of planning, has seemed less relevant than planning for a future – the even wider, and deeper, politics of public health and the intersections between virus control, health service capacity, economics and public messaging. You will already have read some other really good summaries and critiques of that document.

But then yesterday in London some fairly momentous things happened along the currently active fault lines as between MHCLG, the Mayor and the boroughs that I have previously written about in various posts.

Directed modifications to London Plan

First, the Secretary of State issued his letter to the Mayor directing that a series of modifications be made to the draft London Plan pursuant to section 337 of the Greater London Authority Act 1999. The modifications are set out an annex to the letter, in the form of a table setting out each directed “Modification to Remedy National Policy Inconsistency” with a “Statement of Reasons” alongside each modification. The letter and directed modifications are plainly a material consideration to be taken into account where relevant in the determination of planning applications and appeals.

Momentous but perhaps not surprising in the light of the “shot across the bowsletter that Khan had been sent by Robert Jenrick’s predecessor James Brokenshire on 27 July 2018. When you look back at that letter, the position was set out pretty clearly, in allowing the draft plan to proceed under the 2012 NPPF on condition that post adoption the Mayor would then embark on a review of the plan to reflect the revised NPPF (How far away is that review now? Might it have been better if MHCLG had bitten the bullet and required the Mayor to start again on his plan at that stage, so as to be consistent with the new NPPF?).

Back in 2018:

I am not convinced your assessment of need reflects the full extent of housing need in London to tackle affordability problems.

The Government is […] clear that Plans should be effective, deliverable and consistent with national policy. You will recall that the Government highlighted a number of further issues with your draft Plan in response to your consultation, including that:

⁃ 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.

⁃ 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.”

20 months later, following a lengthy examination and inspectors’ report (see my 26 October 2019 blog post More Plans Grounded: West Of England; Sevenoaks; London) the 13 March 2020 direction letter surely in part has the hand of a certain former London Mayor behind it in that as soon as it is past the “Dear Sadiq”, the letter is unforgiving in its content and tone and is a broader attack on the Mayor’s approach to housing:

Every part of the country must take responsibility to build the homes their communities need. We must build more, better and greener homes through encouraging well-planned development in urban areas; preventing unnecessary urban sprawl so that we can protect the countryside for future generations. This means densifying, taking advantage of opportunities around existing infrastructure and making best use of brownfield and underutilised land.

Housing delivery in London under your mayoralty has been deeply disappointing, over the last three years housing delivery has averaged just 37,000 a year; falling short of the existing Plan target and well below your assessment of housing need. Over the same period, other Mayors such as in the West Midlands have gripped their local need for housing and recognised the opportunities this brings, leading significant increases in the delivery of homes.

(an echo there of the Chancellor’s budget speech on 11 March 2020, which referred to “a new £400m Fund for ambitious Mayors like Andy Street in the West Midlands, to build on Brownfield sites…”)

Since you became Mayor, the price of an average new build home in London has increased by around £45,000, reaching £515,000 in 2018, 14 times average earnings. Clearly, the housing delivery shortfall you have overseen has led to worsening affordability for Londoners; and things are not improving, with housing starts falling a further 28 per cent last year compared to the previous.”

Critical strategic sites have stalled, epitomised by your Development Corporation in Old Oak and Park Royal being forced to turn away £250 million of Government funding because of your inability to work successfully with the main landowner. You also turned away £1 billion of investment we offered to deliver Affordable Homes, because of the support and oversight that would accompany this. You have put a series of onerous conditions on estate regeneration schemes for them to be eligible for grant- funding, such as the requirement for residents’ ballots. In attaching such conditions, you are jeopardising housing delivery and this approach will make it significantly more difficult to deliver the Plan’s targets and homes needed.”

(I covered the Old Oak and Park Royal Local Plan saga in my 4 January 2020 blog post Elephant, Dove, Old Oak, RICS. The Mayor published guidelines in August 2018 on applying his requirement (as a pre-condition to grant funding) for residents’ ballots in connection with estate regeneration schemes).

Following the Planning Inspectorate’s investigation of your Plan, they only deem your Plan credible to deliver 52,000 homes a year. This is significantly below your own identified need of around 66,000 homes and well below what most commentators think is the real need of London. As I have set out, the shortfall between housing need in London and the homes your Plan delivers has significant consequences for Londoners.”

Everyone should have the chance to save for and buy their own home so they can have a stake in society. In the short run this requires a proactive stance in building homes for ownership, including Shared Ownership and First Homes, and in parallel delivering a consistently high level of housing supply of all tenures. You should also be looking to deliver homes which people of different ages, backgrounds and situations in life can live in. Your Plan tilts away from this, towards one-bed flats at the expense of all else, driving people out of our capital when they want to have a family.”

(Of course, this is one of the largest and deepest fault lines – as to the relative weight to be given to intermediate affordable housing tenures, including in particular shared ownership and now – covered in my 29 February 2020 blog post – first homes).

Your Plan added layers of complexity that will make development more difficult unnecessarily; with policies on things as small as bed linen. Prescription to this degree makes the planning process more cumbersome and difficult to navigate; in turn meaning less developments come forward and those that do progress slowly. One may have sympathy with some of individual policies in your Plan, but in aggregate this approach is inconsistent with the pro-development stance we should be taking and ultimately only serves to make Londoners worse off.

(Bed linen? Well, Policy H16, Large-scale purpose-built shared living, lists the necessary criteria in order for a development to fall within the policy, and, it is true, one of the criteria is that “communal facilities and services are provided that are sufficient to meet the requirements of the intended number of residents and offer at least:

a) convenient access to a communal kitchen

b) outside communal amenity space (roof terrace and/or garden)

c) internal communal amenity space (dining rooms, lounges)

d) laundry and drying facilities

e) a concierge

f) bedding and linen changing and/or room cleaning services.”

Interestingly the Secretary of State is not directing any changes to H16).

This challenging environment is exacerbated by your empty threats of rent controls, which by law you cannot introduce without Government consent. As we all know, evidence from around the world shows that rent controls lead to landlords leaving the market, poorer quality housing and soaring rents for anyone not covered by the controls.

(Mayor demands powers to bring rents down, 19 July 2019)

I had expected you to set the framework for a step change in housing delivery, paving the way for further increases given the next London Plan will need to assess housing need by using the Local Housing Need methodology. This has not materialised, as you have not taken the tough choices necessary to bring enough land into the system to build the homes needed.”

So what modifications are proposed? As set out in the annex to the letter:

⁃ insertion of “the need for additional family housing” into policy H10.

⁃ references to optimising site capacity into policy D3, including the potential for boroughs to consider positively expansion of existing clusters of high density buildings and expanding Opportunity Area boundaries where appropriate.

⁃ deleting from policy H2 references to in lieu affordable housing contributions from schemes of nine or fewer homes.

⁃ removing the “no net loss of industrial floorspace” requirement from policy E4 and allowing boroughs to “identify opportunities to strategically coordinate development plans to identify opportunities to substitute Strategic Industrial Land where evidence that alternative, more suitable, locations exist”.

⁃ amending green belt and metropolitan open land policies G2 and G3 respectively to make them consistent with national policy.

⁃ introductory passage to be amended encouraging boroughs to review their housing targets where “they have additional evidence that suggests they can achieve delivery of housing above these figures whilst remaining in line with the strategic policies established in this plan

⁃ reintroducing the previous 2016 maximum residential car parking standards.

⁃ watering down the restrictions in policy T6 on retail parking: “G. Boroughs should consider alternative standards where there is clear that evidence that the standards in Table 10.5 would result in (a) A diversion of demand from town centres to out of town centres, undermining the town centres first approach (b) a significant reduction in the viability of mixed-use redevelopment proposals in town centre

⁃ deletion of paragraph 4.1.11 which was critical of the Government’s housing delivery test.

In addition to the modifications, the letter indicates that the Secretary of State is “taking this opportunity to highlight some of the specific areas where I think your Plan has fallen short of best serving Londoners.

⁃ He is “Directing” the Mayor to “work constructively with ambitious London Boroughs and my Department to encourage and support the delivery of boroughs which strive to deliver more housing.”

⁃ “I hope that where your small sites policies are appropriate, you are doing all you can to ensure sites are brought forward.”

⁃ “The Inspectors considered your industrial land policies to be unrealistic; taking an over-restrictive stance to hinder Boroughs’ abilities to choose more optimal uses for industrial sites where housing is in high demand. I am directing you to take a more proportionate stance – removing the ‘no net loss’ requirement on existing industrial land sites whilst ensuring Boroughs bring new industrial land into the supply.”

⁃ “I am concerned that your Plan will be to the detriment of family sized dwellings which are and will continue to be needed across London. This is not just in relation to their provision but also their loss, particularly where family sized dwellings are subdivided into flats or redeveloped entirely. I am therefore Directing you to ensure this is a consideration of London Boroughs when preparing policies and taking decisions in relation to dwelling mix.”

⁃ “It is important that development is brought forward to maximise site capacity, in the spirit of and to compliment the surrounding area, not to its detriment. Sites cannot be looked at in isolation and Londoners need to be given the confidence that high density developments will be directed to the most appropriate sites; maximising density within this framework. Examples of this are gentle density around high streets and town centres, and higher density in clusters which have already taken this approach. I am therefore Directing you to ensure that such developments are consented in areas that are able to accommodate them.”

⁃ In relation to aviation, “the Court of Appeal recently handed down judgment in the judicial review claims relating to the Airports National Policy Statement. The government is carefully considering the complex judgment and so does not consider it appropriate to make any direction in relation to Policy T8 Aviation at the present time. This is without prejudice to my power to make a direction under section 337 at any time before publication of the spatial development strategy, including in relation to Policy T8 Aviation.”

Finally, the Secretary of State wishes to see a “new standard for transparency and accountability for delivery at a local level” and a commitment to work together (regular meetings!) to provide “the fullest account of how the housing market and planning system is performing in London, where there are blockages and what is needed to unblock these, and what tools or actions can be undertaken to further increase housing delivery”.

“Housing in our capital is simply too important for the underachievement and drift displayed under you [sic] Mayoralty, and now in your Plan, to continue.”

To receive such a letter would be a bad start to the day for any Mayor.

Kensington Forum Hotel JR

Shortly after the letter was published, I separately saw a consent order, sealed by the High Court yesterday, 13 March 2020, the effect of which was to record the fact that the Mayor has consented to judgment in the judicial review brought by the Royal Borough of Kensington and Chelsea of his decision, having recovered the application, to grant planning permission for the Kensington Forum Hotel development. I have previously referred to the saga in my 26 January 2019 blog post The Secretary Of State & London and my 15 November 2019 blog post Planning Or Politics? Significant London Planning Decisions 2019. You will recall that planning permission was issued by the Mayor the same day as he had held his representation hearing. RBKC had judicially reviewed that permission and on 27 November 2019 secured an order for disclosure. The consent order records that following “a review of the documents disclosed pursuant to that order”, and in the light of RBKC’s case put in its grounds of claim and evidence, the Mayor “concedes that the Decision should be quashed on the basis of Ground 4, in particular that the decision to grant planning permission was made for an improper purpose and having regard to irrelevant considerations; namely that the Secretary of State should not be given the opportunity to call in the application for his own determination”. The Mayor has agreed as part of the order to pay RBKC’s costs in the sum of £90,000.

So the Mayor will now need to reconsider whether to grant planning permission (a further representation hearing) and the Secretary of State will no doubt consider whether to call in the application.

Postponed election

The coup de grace yesterday for the Mayor must surely have been the Government’s announcement that legislation will be introduced to postpone until May 2021 the local, Mayoral and Police & Crime Commissioner elections that were due to take place on 7 May 2020. After all, he would have been a re-election shoe-in this May if the polls are to be believed (eg see Sadiq Khan Has A Massive Lead In The London Mayoral Election According To A New Poll Londonist, 10 March 2020). Next year? Well that’s a long time away.

One last word on Planning For The Future. The Secretary of State promises “an ambitious Planning White Paper in the Spring”. Obviously government has a stretched and blurred definition of the seasons but technically “Spring” starts on 20 March. It’s one week at a time at the moment isn’t it?

Simon Ricketts, 14 March 2020

Personal views, et cetera

A retweet by the Secretary of State. Probably wisely, the Mayor has not yet risen to the bait.

Let Me Count The Ways

How unromantic. To my disappointment, that line from Elizabeth Browning’s poem is not followed by a list of the differences between the section 247 and 257 procedures for stopping up highways.

I need to fill that gap.

After all, the process for stopping up highways in order to enable development to be carried out is a vital corner of our planning system that is particularly dysfunctional and lacking in logic. Perhaps because the process largely comes after the decision as to whether the development itself is to be approved, there is too little focus on whether it is working effectively. The last material change to the procedure was the limited, but welcome, amendment made by way of the Growth and Infrastructure Act 2013, which at least allowed it to commence prior to planning permission being granted.

Section 247 (1) of the Town and Country Planning Act 1990 provides that “the Secretary of State may by order authorise the stopping up or diversion of any highway outside Greater London if he is satisfied that it is necessary to do so in order to enable development to be carried out…in accordance with planning permission...”

The procedure covers all types of highway.

Section 257 (1) of the Town and Country Planning Act 1990 provides that “[s]ubject to section 259, a competent authority may by order authorise the stopping up or diversion of any footpath, bridleway or restricted byway if they are satisfied that it is necessary to do so in order to enable development to be carried out…in accordance with planning permission…”

The procedure just covers footpaths, bridleways and restricted byways.

The substantive test in relation to both processes is whether the stopping up is “necessary” in order to enable the development to proceed and whether stopping up is in the public interest. However, they are administered in very different ways (and the section 247 process is different in London).

(Outside London) a section 247 application is made by the developer to the Secretary of State for Transport, and is administered by the Department for Transport’s National Transport Casework Team in Newcastle. The casework team’s guidance indicates that the “Department aims to process Orders where there are no objections within 13 weeks from receipt of all necessary information.”

If there are objections following publicity for the application, the Secretary of State considers in his discretion whether an inquiry is to be held. If an inquiry is to be held, there are no procedural rules which govern the process. The inspector is appointed by the DfT and reports to the Secretary of State for Transport, who makes the final decision.

(In London, section 247 order applications are made by the developer to the relevant borough.

If objections are received and cannot be resolved, the application is referred to the Mayor of London, who either decides that under section 252 (5A) that “in the special circumstances of the case” an inquiry is unnecessary, in which case the borough may confirm the order, or that inquiry is necessary, in which case the borough must cause an inquiry to be held.)

A section 257 application is made by the developer to the local planning authority, following the form set out in the Town and Country Planning (Public Path Orders) Regulations 1993. If there are objections following publicity for the application, section 259 and schedule 14 of the Town and Country Planning Act 1990 require that the application must be referred by the local planning authority to the Secretary of State for Environment, Food and Rural Affairs (although in practice by way of reference to the Planning Inspectorate’s rights of way section).

Unlike with opposed section 247 order applications, there are procedural rules that govern the determination of opposed section 257 order applications, namely the Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007 and there is also procedural guidance published by the Planning Inspectorate.

Unless each objector indicates that he or she doesn’t wish to be heard in front of an inspector, PINS will either arrange a hearing or a public inquiry. There are set timescales for the relevant stages. For a hearing, each party wishing to give evidence must provide a statement of case within 12 weeks of the start date. The hearing should generally take place within 20 weeks of the start date. For an inquiry, the parties must provide their statements of case within 14 weeks of the start date and proofs of evidence must then be provided at least four weeks before the start of the inquiry, which should generally be not later than 26 weeks after the start date.

Not only is it odd that the Planning Inspectorate has no discretion to decide that an opposed application be determined by written representations unless all objectors agree (contrast with section 247 but also with the powerless position of an appellant in relation to a section 78 appeal) but these timescales are way out of kilter with modern, post Rosewell, inquiry timescales, where statements of case are due within five weeks of the start date and the inquiry will generally be within 13 to 16 weeks of the start date.

There is a further sting in the tail: The Planning Inspectorate’s procedural guidance warns:

Having received an order from a local authority, we aim to issue the notice containing the ‘start date’ to all the parties within 10 weeks.”

Ten weeks! That is often by definition ten additional weeks on the post permission, pre construction, timeline for a project.

So a section 257 order is likely to take around 36 weeks to get to inquiry…

The only good news is that (another difference between section 247 and 257 orders), the inspector can make the final decision in relation to section 257, so there is no further delay caused by waiting for the Secretary of State to consider his or her report.

In conclusion, there are unjustified differences between what should be very similar processes:

⁃ No overall statutory procedural framework (no procedural rules in relation to section 247; out of date procedural rules in relation to section 257, in terms of leisurely time limits and limited scope for determining that a written representations procedure is adequate)

⁃ No single decision-maker (two different Secretaries of State – and in London the Mayor’s role in relation to section 247 – and section 257 decisions are taken by the relevant inspector rather than needing to be referred to the Secretary of State).

⁃ No single body administering the process (DfT National Transport Casework Team vs Planning Inspectorate rights of way section).

In relation to both processes I would go further: As long as there are appropriate safeguards for those affected and with suitable requirements as to consultation and publicity, surely a local planning authority, at the same time as determining any planning application for development, should be able to approve any highways closures that are required in order for that development to be carried out? Otherwise, the issues are artificially divided, in a way that is particularly confusing for objectors, between two processes (planning and stopping up) which still have to run largely one after the other?

How do I love thee (sections 247 and 257)? Let me count the ways (not).

Simon Ricketts, 15 February 2020

Personal views, et cetera