Does My Embodied Carbon Look Big In This?

M&S used to be the bellwether of the retail sector but its proposed demolition and redevelopment of its 456 – 472 Oxford Street store, in preference to refurbishment and extension, is as likely to be a bellwether of decision makers’ approach to carbon efficiency and in particular to justifying the loss of embodied carbon.

Siri, give me a definition of embodied carbon:

Embodied carbon means all the CO2 emitted in producing materials. It’s estimated from the energy used to extract and transport raw materials as well as emissions from manufacturing processes.

The embodied carbon of a building can include all the emissions from the construction materials, the building process, all the fixtures and fittings inside as well as from deconstructing and disposing of it at the end of its lifetime.” (UCL engineering faculty).

Plainly, maximising the carbon efficiency of new development should be a significant material consideration in the determination of planning applications. But it’s not easy. How, for instance, to weigh longer term operational carbon savings against the one-off carbon costs associated with demolition and rebuild? And how much weight is to be given to carbon saving in the planning process as against other considerations?

You can look in vain for any specific guidance in the National Planning Policy Framework. The “planning for climate change” section (paragraphs 153 to 158) is of course woefully out of date, with an update promised mañana. Climate crisis what crisis?

Even so, the issue was raised by the Secretary of State when he dismissed the Tulip appeal (11th November 2021): “Although considerable efforts have been made to adopt all available sustainability techniques to make the construction and operation of the scheme as sustainable as possible” the result would still amount to “a scheme with very high embodied energy and an unsustainable whole life-cycle.” The Secretary of State also agreed with the Inspector: “that the extensive measures that would be taken to minimise carbon emissions during construction would not outweigh the highly unsustainable concept of using vast quantities of reinforced concrete for the foundations and lift shaft to transport visitors to as high a level as possible to enjoy a view.

Notwithstanding the lack of national policy guidance, the London Plan does have a policy hook, Policy SI 2:

Not only that, as of 17 March 2022 the policy is supported by London Plan Guidance, Whole Life-Cycle Carbon Assessments and on the circular economy.

I want to scoot through the sequence of events so far in relation to the M&S proposal.

Its application for planning permission was submitted to Westminster City Council on 2 July 2021, proposing the demolition of the three buildings that comprise its 456 – 472 Oxford Street store, to make way for a comprehensive redevelopment to provide a building comprising two basement levels, ground and nine upper floors. The proposal would provide an office and retail led mixed use development. The oldest of the buildings, Orchard House, dates from the 1930s. Two comprise basement plus six storeys and one being basement plus seven storeys. Given the changing retail economy, the need for substantial changes to buildings such as this is of course no surprise. The scheme is by architects Philbrow & Partners.

Fred Philbrow stresses the lower lifetime carbon emissions that will arise from the new building, rather than a retrofit:

“It’s not always right to refurbish” old structures, Pilbrow told Dezeen, claiming that the contentious project is akin to trading in a gas guzzler for a Tesla.

“I would liken this to a discussion about a not-very-well-performing diesel car from the 1970s,” he said. “And what we’re trying to do is replace it with a Tesla.

In the short term, the diesel car has got less embodied carbon,” he added. “But very quickly, within between nine and 16 years, we will be ahead on carbon because our Tesla will perform better.” (Dezeen, 17 December 2021).

The application was resolved to be approved by Westminster City Council on 23 November 2021, despite last minute objections from Save Britain’s Heritage and others. The report says this on carbon:

The applicant has submitted a Whole Life-Cycle Carbon Assessment (WLCA) prepared by Arup, as required by Policy SI2 of the London Plan and City Plan Policy 36.

The WLCA includes a comparative assessment of the whole life carbon emissions of a ‘light touch’ refurbishment versus new build development options. The report sets out that refurbishment option has the lowest embodied carbon impact initially because minimal works (and materials) are required. However, this increases over time due to the required maintenance and poor operational performance of the existing buildings.

The assessment concludes that the new build option is the most efficient scenario, especially through the implementation of the low-carbon opportunities recommended in the report. Whilst it has a higher initial embodied carbon than the refurbishment option as it needs to be built (with a high carbon expenditure) – over its operational lifetime it will require much less maintenance than the refurbishment option and be a more efficient building, providing a betterment from years 15/16.

The GLA in their stage 1 response requested the applicant to complete the GLA’s WLCA assessment template. This has been submitted to the GLA and an update on this position with regard to London Plan policy S12 will be reported verbally at the Committee meeting.”

The resolution was subject to referral to the Mayor of London and completion of a section 106 agreement, including an index linked carbon offset payment of £1,198,134 payable prior to the commencement of development.

On the same day as Westminster’s resolution to grant, Historic England turned down a request by objectors that the building be listed.

The Mayor confirmed on 7 March 2022 that he was not going to intervene. However, Save Britain’s Heritage complained that he had not taken into account representations that they had made, including a report they had commissioned from Simon Sturgis Why a Comprehensive Retrofit Is more Carbon Efficient than the Proposed New Build. Simon had previously advised the Mayor on his emerging carbon policies. [NB see Simon Sturgis’ subsequent comments on this blog post at the foot of the page]

Unusually, the Mayor then decided he was going to reconsider the issue:

A spokesperson for the Mayor of London, said: ‘In line with London Plan policy on Whole Life Carbon, the question of retention and refurbishment or demolition and new build was considered in the GLA’s assessment of this application, and based on officer advice that there was no sound planning reason to intervene, on 7 March the Mayor made the decision to allow Westminster to determine the application.

However, City of Westminster is yet to issue its planning decision, and the GLA has now published its planning guidance on Whole Life Carbon and Circular Economy. In light of this situation GLA officers consider it would be prudent to consider a further Stage 2 report, which would also allow consideration of the detailed report by Simon Sturgis examining the carbon emissions impacts of the proposed demolition. An updated Stage 2 report will be presented for consideration at the Mayor’s meeting on Monday 4 April.’” (Architects Journal, 1 April 2022).

However, his decision on 4 April 2022 was the same – no intervention. The stage 2 report and addendum report are available here.

Given the assessment that the Mayor will have made as against his own policies, more up to date and stringent than those of the Government, it is perhaps disappointing for those who believe in devolved decision making then to read that Michael Gove has, presumably in response to further representations (see eg Save Britain’s Heritage’s letter dated 20 April 2022) issued a holding direction preventing Westminster City Council from issuing planning permission until he has decided whether to call it in. The holding direction, under Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2015, is only a precautionary procedural step to buy time and doesn’t at all mean that the Secretary of State is definitely going to call the application in, just that he is considering whether to do that. Indeed holding directions are not particularly unusual in relation to controversial proposals where the Secretary of State has received requests from objectors for him to use his call in powers. seeking call in. But frankly it’s anybody’s guess what will now happen.

The planning system is certainly curious in its inconsistencies. What about the “demolish and rebuild” permitted development rights for some categories of building, introduced in August 2020? Or that demolition of itself does not usually require formal planning permission?

Concluding thoughts:

⁃ climate change considerations should increasingly be central to planning decision making

⁃ but it’s no use the Government reacting in an ad hoc way to specific proposals – up to date, practical, guidance is needed to manage everyone’s expectations – a lengthy call in inquiry is in no-one’s interests

⁃ it shouldn’t be about the easy headlines and twitter pile-ons, but about robust detailed calculations.

⁃ watch how heritage campaign groups continue to accentuate the embodied carbon issue: embodied carbon vs operational savings via more efficient buildings is going to be a constant battleground.

For further reading: Material Considerations: Climate change, embodied carbon and the role of planners (Lichfields’ Alison Bembenek, 11 Feb 2022).

For further listening: Blackstock’s PropCast podcast M&S refurbishment row: experts say demolition decisions need to be about more than just carbon (21 April 2022).

Talking of listening…no clubhouse Planning Law Unplanned discussion this week but plenty of previous episodes to listen to here and some good sessions lined up….

Simon Ricketts, 23 April 2022

Personal views, et cetera

Oligarchs Out

In the 21st century, London has increasingly been a safety deposit box for the wealthy of the world – so many people with incomprehensible amounts of wealth, including (but not exclusively) the so-called Russian “oligarchs” (“one of a small group of powerful people who control a country or an industry”).

Just look at some of the properties we’re talking about: The London mansions owned by Russian oligarchs from ‘Billionaire’s Row’ pad to estate almost size of Buckingham Palace (MyLondon, 4 March 2022). See also this BBC piece this morning (5 March 2022): The mega-rich men facing global sanctions.

Obviously, if you come by your wealth legitimately so be it, but the sums these people apparently own would suggest at best that something is wrong with the very structure of capitalism, and at worst…well draw your own conclusions. And to what extent is this all assisting the evils of the Putin regime – and its equivalents briefly eclipsed in the news cycle?

The UK financial sanctions list (4 March 2022) currently identifies 196 Russian individuals, with the reason for each person being on the list.

For a good introduction to the complex and evolving world of sanctions, I found DAC Beachcroft’s 4 March 2022 briefing UK Sanctions – The Evolving Response to the Russian Invasion of Ukraine and what it means for UK businesses particularly useful:

Prior to 10 February 2022, the Regulations allowed the UK Government to ‘designate’ (that is, to impose sanctions on) a person who is or has been involved in ‘destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine’. Individuals and entities that are so ‘designated’ are listed on the UK Consolidated Sanctions List (“the UK Sanctions List”) along with confirmation of the reasons for designation.

Asset freeze” sanctions “seek to impose prohibitions or requirements for the purposes of:

1. freezing the funds or economic resources owned, held or controlled by certain individuals and entities;

2. preventing financial services being provided to or for the benefit of certain individuals or entities;

3. preventing funds or economic resources from being made available to or for the benefit of certain entities or individuals; or

4. preventing funds or economic resources from being received from certain individuals or entities.

On 10 February 2022, the UK Government expanded its power to designate entities and individuals from a wide variety of sectors as it gave itself the power to designate persons ‘involved in obtaining a benefit from or supporting the Government of Russia’, including:

1. Carrying on business as a Government of Russia affiliated entity

This will include any entity which is owned directly or indirectly by the Russian Government or in which the Government of Russia holds directly or indirectly a minority interest or which has received some form of financial or other material benefit from the Government of Russia.

2. Carrying on business of economic significance or in a sector of strategic significance to the Government of Russia

This includes the Russian, chemicals, construction, defence, electronics, energy, extractives, financial services, information and communications and transport sectors.

3. Owning or controlling directly or indirectly or working as a director or trustee of a Government of Russia affiliated entity or an entity falling within any of the other above categories.

As described in Commons Library briefing Countering Russian influence in the UK (25 February 2022), the so-called “golden visa” scheme has now been scrapped:

On 17 February, the Government announced the immediate closure of the Tier 1 (Investor) visa to new applicants. The visa offered up to five years’ permission to stay in the UK and a route to permanent residence, in return for a minimum £2m investment. A review of all investor visas granted between 2008 and April 2015 was announced in 2018. The Government has said results will be published “in due course”.

Russians are the second most common nationality granted investor visas since 2008, although they accounted for a much smaller proportion of applicants since 2015. Just over 2,500 investor visas have been issued to Russians since 2008 (roughly one fifth of all such visas issued). People granted investment visas before 2015 may have now completed the residence requirement for permanent residence (and possibly British citizenship).”

Events have of course prompted the Government belatedly to fast-track the Economic Crime (Transparency and Enforcement) Bill. Its 2nd Reading will be on 7 March 2022. As set out in its explanatory notes, the Bill’s main objectives are to:

Prevent and combat the use of land in the UK for money laundering purposes by increasing the transparency of beneficial ownership information relating to overseas entities that own land in the UK. The Bill therefore creates a register of the beneficial owners of such entities. The register will be held by Companies House and made public.

Reform the UK’s Unexplained Wealth Order (UWO) regime to enable law enforcement to investigate the origin of property and recover the proceeds of crime. The measures in the Bill aim to strengthen the UK’s fight against serious economic crime; to clarify the scope of UWO powers; and to increase and reinforce operational confidence in relation to UWO powers.

Amend financial sanctions legislation, including the monetary penalty legal test and information sharing powers to help deter and prevent breaches of financial sanctions.

However, is this going far enough? There have been pieces in the media reporting that the French government had “seized” a Russian oligarch’s yacht. There is no detail as to what the precise legal status of that action was – there would need of course to be a solid legal basis for confiscation (presumably without compensation) but it is interesting that Boris Johnson and Michael Gove have been reported to be looking at the potential to bolster the Economic Crime Bill so as to facilitate the confiscation of UK property owned by Russian oligarchs (see for instance Michael Gove calling for UK to seize London homes of Russian oligarchs CityAM 27 February 2022 and Michael Gove considers options for seizing oligarchs’ property The Times 3 March 2022). Is this just tough talk and no action? I know you may not want to hear this but… any legislation, and individual decisions made under it, would need to be tightly framed to be consistent with the European Convention on Human Rights (and in a rule of law based, democratic, society that is surely right):

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” (Article 8).

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” (Article 1 of the First Protocol)

Of course, confiscation without compensation may be properly framed as necessary in the public interest but this will need care.

The London Mayor issued a press statement on 26 February 2022, Mayor demands seizure of property connected to oligarchs, supporting the confiscation of assets but going further in terms of measures to seek to minimise the number of empty homes in the capital (surely these measures are essential to ensure that we can look in the eye those who say that there is no need for additional new homes?) and to penalise foreign buyers more generally (jury out as far as I’m concerned – baby, bathwater etc):

“The Mayor has previously criticised the Government’s failure to deliver on the promise of a register of overseas property ownership and has now set out further measures to charge those who buy property in the UK with no intention of living here and leave them empty while London faces a housing crisis.

As well as the register of overseas ownership, the Mayor is calling for:

Seizure of property assets held by allies of President Putin

Raising the amount overseas owners have to pay for leaving their home empty by increasing the council tax ‘empty homes premium’

Raising capital gains tax on overseas buyers from 28 per cent to 40 per cent

Increasing the taxes paid by overseas companies investing in property by increasing the Annual Tax on Enveloped Dwellings

For further reading, there is this article in yesterday’s edition of the Economist: The rise and fall of Londongrad (behind pay wall, 5 March 2022).

Finally, there are some ways to support the people of Ukraine.

This week’s Clubhouse event will be at a slightly earlier time, at 5pm on Tuesday 8 March. Its theme is “BREAK THE BIAS – women in planning/law”, to mark this year’s International Women’s Day theme. We have various speakers including Meeta Kaur, Nikita Sellers, Caroline Daly, Nicola Gooch and Zenab Hearn. Link here.

Simon Ricketts, 5 March 2022

Personal views, et cetera

Liberty Leading The People (Delacroix)

Strong Beer: London Tall Buildings & The Master Brewer Case

If you are dealing with any proposal for a building of six storeys or more in London, R (London Borough of Hillingdon) v Mayor of London (Lang J, 15 December 2021) is a vital case, because it resolves for now the question of how the relevant policy in the London Plan, policy D9, is to be interpreted. Is it right, as have some have contended, that tall buildings may only be developed in locations identified as suitable in boroughs’ local plans? Lang J says no.

The three relevant parts of the policy for the purposes of this issue, as quoted in the case, read as follows:

Definition

A

Based on local context, Development Plans should define what is considered a tall building for specific localities, the height of which will vary between and within different parts of London but should not be less than 6 storeys or 18 metres measured from ground to the floor level of the uppermost storey.

Locations

B

1) Boroughs should determine if there are locations where tall buildings may be an appropriate form of development, subject to meeting the other requirements of the Plan. This process should include engagement with neighbouring boroughs that may be affected by tall building developments in identified locations.

2) Any such locations and appropriate tall building heights should be identified on maps in Development Plans.

3) Tall buildings should only be developed in locations that are identified as suitable in Development Plans.

Impacts

C

Development proposals should address the following impacts:

1) visual impacts […]

2) functional impact […]

3) environmental impact […]”

(there is also a fourth part – as to provision for public access).

The big question has been whether the first and second parts of the policy have to be passed before a scheme can be judged as against the detailed criteria in part C.

The text underlined had been added pursuant to a direction by the Secretary of State dated 10 December 2020 before the plan was then adopted on 2 March 2021.

Quoting from the judgment:

The Secretary of State’s covering letter, dated 10 December 2020, said as follows:

“….. I am issuing a new Direction regarding Policy D9 (Tall Buildings). There is clearly a place for tall buildings in London, especially where there are existing clusters. However, there are some areas where tall buildings don’t reflect the local character. I believe boroughs should be empowered to choose where tall buildings are built within their communities. Your draft policy goes some way to dealing with this concern. In my view we should go further and I am issuing a further Direction to strengthen the policy to ensure such developments are only brought forward in appropriate and clearly defined areas, as determined by the boroughs whilst still enabling gentle density across London. I am sure that you share my concern about such proposals and will make the required change which will ensure tall buildings do not come forward in inappropriate areas of the capital.”

DR12 set out a “Direction Overview” as follows:

The draft London Plan includes a policy for tall buildings but this could allow isolated tall buildings outside designated areas for tall buildings and could enable boroughs to define tall buildings as lower than 7 storeys, thus thwarting proposals for gentle density.

This Direction is designed to ensure that there is clear policy against tall buildings outside any areas that boroughs determine are appropriate for tall buildings, whilst ensuring that the concept of gentle density is embodied London wide.

It retains the key role for boroughs to determine where may be appropriate for tall buildings and what the definition of tall buildings are, so that it is suitable for that Borough.”

The ‘statement of reasons’ for DR12 stated inter alia:

“……The modification to policy D9 provides clear justification to avoid forms of development which are often considered to be out of character, whilst encouraging gentle density across London.”

The issue had come before the court in the context of planning permission granted by the Mayor of London for the redevelopment of the former Master Brewer Motel site in Hillingdon – a development promoted by Inland Homes for a series of buildings of up to 11 storeys in height. Hillingdon Council had resolved to refuse planning permission on the basis that tall buildings in this location would be contrary to its local plan but the Mayor had recovered the application for his own determination and approved it on 30 March 2021.

There were three grounds to the judicial review brought by the Council:

i) The Defendant misinterpreted Policy D9 of the London Plan 2021 by concluding that, notwithstanding conflict with Part B of that policy, tall buildings were to be assessed for policy compliance against the criteria in Part C.

ii) The Defendant erred in failing to take into account a material consideration, namely, the Claimant’s submissions and accompanying expert evidence as to air quality.

iii) The Defendant acted unlawfully and in a manner which was procedurally unfair in that he failed to formally re-consult the Claimant or hold a hearing, prior to his re-determination of the application, following the adoption of the London Plan 2021.”

I am only focusing on the first ground but the third ground may also be of interest on the question of when an application needs to be re-consulted upon or re-considered in the light of changes in policy.

The analysis carried out by the judge is interesting.

First of all she considers whether the meaning of the policy was “clear and unambiguous” such that under legal principles of interpretation, the courts should not have regard to extrinsic materials to assist in interpretation. She recorded that “[a]ll parties contended that the meaning of Policy D9 was clear and unambiguous, despite the differences in their interpretation of it. In those circumstances, applying the principles set out above, I consider that I ought not to have regard to the letter from the Secretary of State to the Defendant dated 10 December 2020 (paragraph 46 above) as it is not a public document which members of the public could reasonably be expected to access when reading Policy D9. Furthermore, it is of limited value as, taken at its highest, it sets out the Secretary of State’s intentions, whereas the Court must consider the meaning of the words actually used in Policy D9, as amended by DR12, which in my view did not give effect to the expressed intentions in the letter.”

(I’m scratching my head as to how the various parties to litigation can be arguing as to the meaning of a policy but can agree that the meaning of the policy is “clear and unambiguous”. In saying that the Secretary of State’s direction letter “was not a public document which members of the public could reasonably be expected to access when reading Policy D9”, I take it that she was not saying that it was not a “public document”, which of course it was, but that a member of the public should not be expected to go searching for such documents to assist with interpretation of a policy if it is indeed clear and unambiguous).

She then concludes that the council’s interpretation of the policy “cannot be correct”:

Read straightforwardly, objectively and as a whole, policy D9:

i) requires London Boroughs to define tall buildings within their local plans, subject to certain specified guidance (Part A);

ii) requires London Boroughs to identify within their local plans suitable locations for tall buildings (Part B);

iii) identifies criteria against which the impacts of tall buildings should be assessed (Part C); and

iv) makes provision for public access (Part D).

There is no wording which indicates that Part A and/or Part B are gateways, or pre-conditions, to Part C. In order to give effect of Mr Howell Williams QC’s interpretation, it is necessary to read the words underlined below into the first line of Part C to spell out its true meaning:

Development proposals in locations that have been identified in development plans under Part B should address the following impacts.”

But if that had been the intention, then words to that effect would have been included within the policy. It would have been a straightforward exercise in drafting. It is significant that the Secretary of State’s direction only required the addition of the word “suitable” to Part B(3). It did not add any text which supports or assists the Claimant’s interpretation, even though the Secretary of State had the opportunity to do so.

In my view, the context is critical to the interpretation. Policy D9 is a planning policy in a development plan. By section 70(2) TCPA 1990 and section 38(6) PCPA 2004, there is a presumption that a determination will be made in accordance with the plan, unless material considerations indicate otherwise. Thus, the decision-maker “will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it”: per Lord Clyde in City of Edinburgh at 1459G. Furthermore, the decision-maker must understand the relevant provisions of the plan “recognising that they may sometimes pull in different directions”: per Lindblom LJ in BDW Trading Ltd at [21], and extensive authorities there cited in support of that proposition. As Lord Reed explained in Tesco Stores Ltd v Dundee City Council, “development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another”.

The drafter of Policy D9, and the Defendant who is the maker of the London Plan, must have been aware of these fundamental legal principles, and therefore that it was possible that the policy in paragraph B(3) might not be followed, in any particular determination, if it was outweighed by other policies in the development plan, or by material considerations. It seems likely that policy provision was made for such cases, given the importance of the issue.

In considering whether to grant planning permission for a tall building which did not comply with paragraph B(3), because it was not identified in the development plan, it would surely be sensible, and in accordance with the objectives of Policy D9, for the proposal to be assessed by reference to the potential impacts which are listed in Part C. The Claimant’s interpretation leads to the absurd result that a decision-maker in those circumstances is not permitted to have regard to Part C, and must assess the impacts of the proposal in a vacuum.”

Therefore:

Notwithstanding the non-compliance with Part B of Policy D9, the Defendant determined that the proposal accorded with the provisions of the development plan when read as a whole. That was a planning judgment, based on the benefits of the proposal, such as the contribution of much-needed housing, in particular affordable housing, and the suitability of the Site (brownfield and sustainable, with good transport). The Defendant was satisfied, on the advice of the GLA officers, that sufficient protection from air quality impacts would be achieved. The Defendant was entitled to make this judgment, in the exercise of his discretion.”

Accordingly, boroughs do not have a veto, by virtue of their local plans, as to where tall buildings may be located in their boroughs – policy D9 is not to be interpreted in a way automatically treats proposals for tall buildings as contrary to the development plan where they are not supported in the local plan.

Whether or not this is what the previous Secretary of State intended with his direction may be another matter but of course the London Plan is adopted and free from the possibility of legal challenge (and, pragmatically, the Secretary of State could have course chosen to call in the application but did not) – and if parts A and B were indeed to be a necessary gateway there would be the immediate issue that any development of buildings of six storeys or more would be stymied as contrary to the development plan until boroughs’ plans had caught up with, and been examined in the context of, the new policy approach – hardly consistent with the Secretary of State’s urging for London to achieve a significant increase in housing delivery.

To mark the end of 2021 and, self-indulgently, the 5th anniversary of my firm, we have a unique Clubhouse event planned for 6 pm this Tuesday 21 December: “START ME UP: how Town Legal started 5 years ago – & why”. There will be a stageful of “day one” Townies: Clare Fielding, Patrick Robinson, Meeta Kaur, Benita Wignall, Spencer Tewis-Allen, our former chairman (and ex Herbert Smith Freehills COO) John Mullins and former associate Ricky Gama (now Leigh Day) as well as our good friends, without whom…, Drew Winlaw (Simmons Wavelength) and Beau Brooke (Kindleworth). If you ever wondered what it takes to create a professional services firm from scratch, do tune in. Link to app here.

Simon Ricketts, 17 December 2021

Personal views, et cetera

Photo by Jon Parry courtesy Unsplash

Views On Design – Three Recent Decisions

It is interesting to consider what the Secretary of State has said about design matters in three recent decisions, subsequent to the July 2021 revisions to the NPPF and new national model design code (see my 27 July 2021 blog post Beauty & The Beach).

Westferry Printworks

Image courtesy of Westferry Developments

Following the quashing of his predecessor’s decision to allow the appeal by Westferry Developments Limited in relation to the non-determination by the London Borough of Tower Hamlets of its application for planning permission for 1,524 dwellings and associated development on the former Westferry Printworks site (see my 23 May 2020 blog post) the Secretary of State has now dismissed the appeal in a decision letter dated 18 November 2021.

On design he says this:

“The Secretary of State has given careful consideration to the Inspector’s analysis at IR.A.420-435 and IR.B.235-240 and IR.B.302 in relation to the effect of the scale, height and massing of the proposed development on the character and appearance of the surrounding area. For the reasons given at IR.B.235-236 and IR.B.302 the Secretary of State agrees that the appeal scheme would be harmful to the character and appearance of the area (IR.B.302).

The Secretary of State agrees with the Inspector’s assessment at IR.A.436 that the spacing between the proposed towers and the way materials and the detailed design of the facades would bring texture and variety to the appearance of the buildings. However, for the reasons given at IR.B.235-236, the Secretary of State further agrees that the appeal scheme would result in a proposal of excessive height, scale and mass which would fail to respond to the existing character of the place. He further agrees that it would not enhance the local context by responding positively to local distinctiveness and, like the Inspector, considers that the proposal would conflict with LonP 2021 Policy D3 (IR.B.236).

For the reasons given at IR.A.436-438 and IR.B.237, the Secretary of State agrees that although the site is within a Tall Buildings Zone (TBZ) as identified in the development 6 plan, the scale, height and mass of the proposal is such that it would not make a positive contribution to the skyline nor the local townscape or achieve an appropriate transition in scale to buildings of significantly lower height. He further agrees that it would not reinforce the spatial hierarchy of the local and wider context, and would cause harm to the significance of heritage assets, would harm the ability to appreciate a World Heritage Site (WHS) and would compromise the enjoyment of an adjoining water space (IR.B.237). He further agrees at IR.A.436 that the proposal would not be well related to the street scene of Westferry Road (IR.A.436). For the reasons given, he agrees that the proposal would conflict with LonP Policy D9. He also agrees at IR.B.238 that the proposal would conflict with LP 2031 Policy S.DH1 because it would not be of an appropriate scale, height, mass, bulk and form. He further agrees, for the reasons given at IR.B.239, that the proposal would conflict with Policy D.DH6.

The Secretary of State further agrees that for the reasons given at IR.B.240, the proposal would not accord with the design principles set out in site allocation 4.12 (Westferry Printworks) of the LP 2031 and would therefore conflict with site allocation 4.12.

For the reasons given, the Secretary of State agrees with the Inspector at IR.B.302 that overall, the proposal would not represent high quality design which responds to its context. He further agrees that significant weight should be attached to the harm to the character and appearance of the area because of the degree of harm that would be caused and the wide area over which that harm would be experienced (IR.B.302).

The Secretary of State has taken in to consideration the appellant’s representation of 27 August 2021, including that the proposal is representative of the highest quality design and appearance and that the development would deliver an attractive well-designed landscape masterplan that is easily accessible for pedestrians and cyclists; that trees are integral to the proposed streetscape; and that the proposals will deliver a safe, secure and attractive environment. The appellant considers that the proposed development is compatible with the emphasis in the revised Framework for building and places to be beautiful and sustainable. The Secretary of State has also taken into account the Council’s representation of 26 August 2021. This considers that the amended Framework and the requirement to consider the National Design Guide further reinforces and strengthens the Council’s case, and sets out where the Council considers that the proposal does not align with the principles in the National Design Guide.

For the reasons given in this letter, the Secretary of State considers that overall, the appeal scheme does not reflect local design policies or government guidance on design, and is not in accordance with paragraph 134 of the Framework. This view is further reinforced by his conclusions on heritage issues, below. He considers that the shortcomings of the proposal in terms of the failure to accord with the provisions of the revised Framework carry significant weight against the proposal.”

The Tulip, 20 Bury Street, London EC3

Image courtesy of Bury Street Properties

On behalf of the Secretary of State, the Minister for Housing, Christopher Pincher, dismissed an appeal by Bury Street Properties against the refusal by the City of London Corporation for planning permission for a 304 metre high visitor attraction in the City of London. His decision letter dated 11 November 2021 and inspector’s report make fascinating reading.

Zack Simons gave a great summary of the decision on clubhouse last Tuesday and you can listen again here.

There are some fascinating passages both in the decision letter and in inspector’s David Nicholson’s elegantly written report. Aside from his conclusions on heritage impact (particularly the effect of the proposal on the setting of the Tower of London world heritage site), there is a detailed analysis at paragraphs 32 to 41 of the six criteria for good design set out in paragraph 130 of the NPPF (the six criteria are unchanged from the previous version of the NPPF but it is interesting to see them used in this way):

Function

“…the Secretary of State agrees that the scheme would function properly with regard to delivering a very high level viewing experience together with some exciting fairground-style additions. He further agrees with the Inspector’s comments about the level of skill and effort which has been put into resolving the entrance and exit requirements in such a tight space and the quality of the detailing. However, he agrees with the Inspector’s concerns that the number of visitors would need to be limited to prevent overcrowding at ground level. Overall, he agrees with the Inspector that the extent to which the design would overcome the constraints (of the site) and function well is a matter which should be given moderate weight (IR14.72).

For the reasons given in IR14.73, the Secretary of State agrees with the Inspector that little if any thought has been given to how the building would function over its extended lifetime. He notes that there are no plans for its re-use when it has served its purpose as a viewing tower, or for its demolition. He agrees that if the owner were disinclined with little incentive, it would leave either an unmaintained eyesore or a large public liability, and this counts heavily against its design quality.

• Visually attractive

The Secretary of State agrees with the Inspector, for the reasons given at IR14.74, that while the quality of the presentation materials is of an exceptional standard, achieving the highest architectural quality goes well beyond the level of detailing and presentation. While he recognises that the quality of the presentation materials has made it easier to appreciate how the scheme is designed and how it impacts on its surroundings, he considers that the quality of the presentation materials is not directly relevant to the quality of the design and does not carry weight in this matter.

The Secretary of State agrees with the Inspector that there is some comfort that the attention to detail would be followed through into the finished article (IR14.83). For the reasons given at IR14.75-14.83, he agrees with the Inspector that however carefully detailed, in terms of aesthetics the result would be visually compromised, being neither a continuous flowing object, as with the Gherkin, nor a structure of three distinct parts, as with the Monument (IR14.77). He also shares the Inspector’s reservations about the finish to the concrete of the Tulip (IR14.78-14.79). In terms of symmetry, the Secretary of State agrees with the Inspector that while there have obviously been considerable effort and architectural dexterity employed in modelling the top of the building, the way the gondolas, slide and skywalk have been incorporated into the viewing areas has produced a compromised design that is neither a flamboyant expression nor a consistent elegance (IR14.81).

In terms of overall appearance, the Secretary of State, like the Inspector, finds too many compromises to amount to world class architecture. He considers that taking into account his conclusions in paragraphs 35-36 above and paragraph 46 below, the 8 proposal does not draw support from paragraph 126 of the Framework, which promotes the creation of ‘high quality, beautiful and sustainable buildings and places’.

Sympathetic to local character and history

“…the Secretary of State agrees with the Inspector that the form and materials of the Tulip at its proposed height and location would be a poor and unsympathetic response to the historical context. He considers that this weighs very heavily against the quality of the design, and has reflected this in the very considerable weight attributed to the heritage harm.”

Strong sense of place

“The Secretary of State agrees with the Inspector, for the reasons given at IR14.88 to 14.90, that the base of the Tulip and the Pavilion would create distinctive spaces and the double height arches between the buttresses would be attractive and welcoming alongside the green wall. He further agrees that the sense of drama and expression of structural forces at the base of the Tulip would be striking, and that the Pavilion would be a bright new building with an exciting roof garden at high level. However, he also agrees that the space around the entrances might feel uncomfortable and shares the Inspector’s reservations about the treatment of the Pavilion’s street elevation and how the ground level functions would be achieved. Overall, he agrees with the Inspector’s conclusions that while the scheme would enhance detailed elements of the existing context it would do so at a cost to openness (IR14.90).”

• Optimise the potential of the site

For the reasons given at IR14.91, the Secretary of State agrees with the Inspector that while the scheme would develop this windfall site to the full, and considerable skill has gone into overcoming the functional requirements within such a tight site and turning these into attractively detailed elements, nevertheless, this would not overcome the loss of open space and part of the backdrop to the Gherkin.”

• Inclusive and accessible

“…while the scheme would be generally accessible to all, its inclusivity would be limited by the cost of the main attractions.”

The Secretary of State concludes on design that he “agrees with the Inspector that the approach would be a muddle of architectural ideas and would be compromised, and that the unresolved principles behind the design would mean that in many regards it would fall between two stools. He further agrees that the development would not amount to a design of outstanding quality, and that the quality of design would not be nearly high enough as to negate its harm to the settings of heritage assets.”

“The Secretary of State has gone on to consider these findings against the revised design policies in the Framework. He concludes that those design elements set out above which weigh against the scheme, both in terms of design process and outcome, have greater weight than the positive elements which have been identified. Overall, the Secretary of State agrees with the Inspector at IR14.106 that the proposal would not amount to a design of outstanding quality.”

“In particular, The Secretary of State considers that the revisions to the Framework make clear that the creation of high quality, beautiful and sustainable buildings and places is fundamental to what the planning and development process should achieve (Framework paragraph 126) and he considers this emphasis on design quality to be an important material consideration in this case.”

The Secretary of State has further considered whether there is conflict with government guidance on design. In the light of his conclusions above, and for the same reasons, he considers that the proposal is not in accordance with aspects of the National Design Guide, in particular those elements of the Guide dealing with context and resources. He has taken into account the representation of 7 September made on behalf of the appellant which refers to the National Design Guide and the evidence submitted to the inquiry. However, as above, because of significance of the areas of conflict, and the resultant degree of harm, overall he considers that that the proposal does not reflect government guidance on design. He considers that design as a whole carries significant weight against the proposal.”

It is well worth reading the more detailed analysis in inspector David Nicholson’s report. Given public discourse about the “beauty” agenda, reflected in the revised NPPF and national model design code, he makes this interesting comment:

“I did not pursue the notion of beautiful found in the draft NPPF. It is evident, for all the reasons that they set out, that the Appellant and its supporters consider that the scheme would be beautiful while objectors think it would not. While I certainly accept that innovative designs can be beautiful, in other regards I consider that the concept of beauty or otherwise for this appeal is in the eye of the beholder and that any further discussion is unlikely to be helpful”.

Amen to that.

Brighton Marina

Image courtesy of the Outer Harbour Development Company Partnership

The Secretary of State dismissed an appeal by the Outer Harbour Development Company Partnership in relation to the non-determination by Brighton and Hove City Council of an application for planning permission for phase two of a phased residential-led mixed use development at Brighton Harbour Outer Harbour. On design, the decision letter dated 11 November 2021 includes the following:

For the reasons given he agrees with the Inspector that the various spaces want for discipline and overall there are not enough ‘events’ or ‘signposts’ to make for a properly legible route across the site (IR11.17). Furthermore, he agrees with the Inspector that in terms of the regularity of the façade treatments, and the homogenous mass that would be created, together with the failure to provide a proper landmark or bookend, the scheme lacks the exuberance and ambition that the best of Brighton’s seaside buildings exhibit. He also agrees that it would not, therefore, be a positive contributor to its context and in many respects, it would fail to take the great opportunity the appeal site presents (IR11.22).

“The Secretary of State agrees with the Council that the updated NPPF gives even stronger weight to the need to follow local design guidance. For the reasons given in this letter, he agrees with the Council’s assessment of the areas of conflict with the UDF. He has taken into account the Appellant’s representations on the matter. However, given the significance of the areas of conflict, and the resultant degree of harm, particularly in respect of heritage, harm to the setting of the National Park and living conditions, he considers that overall there is conflict with the newly adopted UDF, this being a material consideration in its own right. In the light of this conclusion, he considers that overall the proposal fails to reflect local design policies, as required by paragraph 134 of the Framework. He further considers that it fails to reflect the elements of paragraph 130 relating to layout, the requirement to be sympathetic to local character and history, establishing a strong sense of place and providing a high standard of amenity.

The Secretary of State has further considered whether the proposal reflects government guidance on design. In the light of his conclusions above, and for the same reasons, he considers that the proposal is not in accordance with the aspects of the National Design Guide dealing with context, layout, form, appearance, external appearance and public spaces. He has taken into account the appellant’s statement in their representation of 5 August that the provisions set out in paragraph 134 of the revised Framework are covered within Mr Aspland’s POE, which sets out how the landscape design proposals meet the relevant objectives of the National Design Guide. However, as above, because of significance of the areas of conflict, and the resultant degree of harm, overall he considers there is conflict with the National Design Guide. He therefore agrees with the conclusion in the Council’s representation of 24 August that the proposal does not reflect government guidance on design.

Overall, the Secretary of State considers that the shortcomings in terms of the failure to accord with the provisions of the revised Framework carry significant weight against the proposal.”

Taken together, it is clear that care is needed to ensure that proposals are indeed consistent with the revised chapter 12 (“achieving well-designed places”) of the NPPF. But how? On Tuesday 23 November 2021 at 4.30 pm I’m participating in a Montagu Evans webinar: “Planning for beauty, or the “provably popular”. A new urban design agenda?” which I hope will explore the practical implications. I will be joining Chris Miele (Montagu Evans), Charles Banner QC (Keating Chambers) and leading architect Deborah Saunt, one of the founding directors of DSDHA. If of interest please do register here.

In consequence, there will be no Planning Law Unplanned session on Tuesday. You will have to make do with listening back to last week’s session – featuring Zack Simons, as mentioned above, along with Kate Olley, who discussed last month’s Sage case.

Simon Ricketts, 19 November 2021

Personal views et cetera

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