Neighbourhood planning

Street Votes!

I know we are all trying to wind down, or maybe are slumped there fully unwound already, I do know that, I do see you. However, I couldn’t let a DLUHC consultation paper just slip out unnoticed on 22 December…

The Government’s consultation paper on street votes development orders landed this afternoon. The consultation period closes on 2 February 2024

You will recall that this new potential consenting route for domestic development was teed up by section 106 of the Levelling-up and Regeneration Act 2023, which shoehorns new sections 61QA to 61QM into the 1990 Act.

The consultation paper summarises as follows how SVDOs will work in practice:

“11. A group of residents which meets certain requirements will be able to come together with a proposal for permission to be granted for development on their street, for example the addition of an extra storey to properties. The proposal can be put forward by the group of residents directly or with the assistance of an individual such as an architect.

12. The proposal will be examined by the Planning Inspectorate on behalf of the Secretary of State to check that the proposed development is in scope and that requirements prescribed in secondary legislation are met. These requirements will help ensure that development meets high design standards and that local impacts are taken into account.

13. If the proposal passes the examination, it is then put to a referendum. Where the required threshold of votes is met, subject to any final checks, the Planning Inspectorate will make the street vote development order on behalf of the Secretary of State. Once the street vote development order is made, granting planning permission, a person with control of the land can then decide whether they want to take forward development.

14. Where street vote development takes place, local authorities will be able to capture value from the new development via the Community Infrastructure Levy and, when it is introduced, the new Infrastructure Levy, and use it to fund infrastructure that will support the local area.”

The Government proposes that for the procedure to be available there will need to be at least ten residential properties in the street, with rules as to the minimum size of the qualifying group of voters and percentage of votes required as follows:

It is proposed that any proposal must include:

“a signed and witnessed letter from members of the qualifying group declaring that they support the proposal, where a proposal has been submitted on their behalf
a map which identifies the street area and the land in that street area to which the proposal relates
a draft order which includes a description of the development to which the order relates and any proposed planning conditions
any necessary supporting information such as impact assessments or statements. Further information is set out in the “Managing local impacts” section of this consultation
details of any consultation with statutory bodies
a declaration that the qualifying group has engaged with the local community”

“21. In addition, we propose that qualifying groups (or those acting on their behalf) must submit a street design code that sets out illustrated design parameters for physical development within the street area such as number of floors, plot use and the facade treatment of buildings.

22. We also propose qualifying groups (or those acting on their behalf) will have the option to submit a detailed specification of the elevations visible from public spaces for new or extended buildings that are permitted in the street area. If these are submitted, they must include at least one detailed elevation drawing for facades facing public spaces. Specifications of elevations not facing public spaces are optional. Qualifying groups may provide various façade options if a varied streetscape is desired.

23. If plot widths in the street area vary, the specification must include requirements on how the elevations can be adapted to deal with such variation. If they wish, qualifying groups may also choose to include permitted elevations for wider buildings that can be created by merging plots e.g. an elevation for a small mansion block created by merging three existing plots.”

A ”street area” is to be defined as “the properties on each stretch of road starting or ending at a crossroads or as a minor road at a T-junction or where there is a gap between buildings of more than 50 metres. A street is treated as terminated if the continuous stretch of buildings is broken by a bridge wider than 3 metres. This applies to both the street running beneath and over the bridge. A residential property is counted as being in a street area if any part of its boundary runs along the highway. The street area must have at least 10 residential properties within its boundary. We also propose that adjoining streets could be joined together to form one street area, for example, joining together two streets that have fewer than 10 residential properties.”

Detailed design requirements are set out in a table at paragraph 35 of the consultation document, informed by six design principles:

Supporting a gradual evolution in the character of neighbourhoods
Limiting impacts on neighbours
Preserving green space and increasing outdoor space (including balconies)
Celebrating heritage
Promoting active travel
Creating sociable neighbourhoods

If you look at the paragraph 35 table you will see that there is much detail as to for instance, the maximum number of extra storeys (dependent on the density of the area); setbacks; basements; angled light planes; ceiling heights and corner properties.

It is proposed that “street vote development orders should be permitted to go beyond that which might be permitted under the local development plan where the impacts are broadly acceptable in the view of the Secretary of State according to national policy, and it will not cause problems with the implementation of the local plan.”

If the proposal survives examination and the necessary referendum, the Government hasn’t yet decided how long property owners will have to commence development:

“Option A: Development must be commenced within 10 years of the order being made. This is longer than is typically allowed for planning permission granted through existing consent routes because the permission will potentially apply to properties under many different owners, some of which may not be able to commence development within a shorter period (e.g. 3 years). The qualifying group would also have the option to propose an increase to this period as part of its proposal if it takes the view more time is needed to commence development;
Option B: Development must be commenced within a specified period (e.g.10, 20 or 30) years of the order being made. The qualifying group would also have the option to apply to the local planning authority after the order has been made to extend the commencement period; and
Option C: No time period. Permission granted through a street vote development order would be permanent.”

In summary, there’s a lot here for local planning authorities, planning professionals and (above all) home owners to get their heads around. The concept has been widely lobbied for by eg Policy Exchange, Create Streets and YIMBY. I’ll be interested to see the extent to which ultimately there is take-up and, aside from the inevitable definitional problems with any rules-based process such as this, of course there are some open questions as to the extent to which this process, alongside continuing extensions of permitted development rights and the prospect of national development management policies, further marginalises the role of the local planning authority. And does anyone remember neighbourhood development orders and all of that malarkey…?

But something to be picked up again on the other side, as they say.

In the meantime, peace to all in 24 – even to those I may be seeing across a planning inquiry or court room!

Simon Ricketts, 22 December 2023

Personal views, et cetera

Image from YIMBY Street Votes website

Does LURB Herald A More Zonal Approach to Planning After All?

I’ll explain what I mean in a moment.

But first some preliminaries.

LURB of course seems to be the now accepted acronym for the Levelling-up and Regeneration Bill, laid before Parliament on 11 May 2022.

The Bill proposes a wide range of legislative measures across local government, regeneration, planning and compulsory purchase.

Aside from the Bill itself it’s worth having to hand:

⁃ the Explanatory Notes

⁃ the Government’s policy paper

⁃ the Government’s response to the Select Committee report on the planning white paper

My Town Legal colleagues have put together a fantastic (I think) 17 page summary of the main planning and compulsory purchase provisions of the Bill. Thanks Safiyah Islam and the following contributors:

• Part 3, Chapter 1 – Planning Data – Aline Hyde

• Part 3, Chapter 2 – Development Plans – Emma McDonald

• Part 3, Chapter 3 – Heritage – Cobi Bonani

• Part 3, Chapter 4 – Grant and Implementation of Planning Permission – Lucy Morton

• Part 3, Chapter 5 – Enforcement of Planning Controls – Stephanie Bruce-Smith

• Part 3, Chapter 6 – Other Provision – Stephanie Bruce-Smith

• Part 4 – Infrastructure Levy – Clare Fielding

• Part 5 – Environmental Outcomes Reports – Safiyah Islam

• Part 6 – Development Corporations – Amy Carter

• Part 7 – Compulsory Purchase – Raj Gupta

* Relevant clauses in Part 2 (Local Democracy and Devolution), Part 8 (Letting by Local Authorities of Vacant High-Street Premises), Part 9 (Information About Interests and Dealings in Land) and Part 10 (Miscellaneous) – Victoria McKeegan

If you would like to receive further detailed updates from time to time please email town.centre@townlegal.com.

I held a Clubhouse session on 12 May 2022 where I discussed the changes and their possible implications alongside Catriona Riddell, Phil Briscoe, Nick Walkley and Meeta Kaur. It is available to listen to here.

For a deeper dive into the compulsory purchase elements, do join our next Clubhouse session at 6 pm on Tuesday 17 May 2022, where my colleagues Raj Gupta and Paul Arnett will be leading a discussion with special guests Charles Clarke (DLUHC, previous chair of the Compulsory Purchase Association), Henry Church (CBRE, and current chair of the Compulsory Purchase Association), Caroline Daly (Francis Taylor Building), Virginia Blackman (Avison Young) and Liz Neate (Deloitte). Some line up! Join here.

Raj and Paul have also started a blog, Compulsory Reading, focused on CPO issues. The first post is here and, guess what, this will be compulsory reading if your work touches at all on the intricate and changing world of compulsory purchase law.

Phew! So what was I getting at in the heading to this post? Surely any fule kno that there was once a government white paper in August 2020 that, amongst other things, proposed a more zonal approach to planning – with local plans throwing all areas into three hoppers: protected, restricted and growth – but that the political lesson learned was that this would be a vote loser and so the zonal approach was abandoned by incoming Secretary of State Michael Gove in the wake of the Chesham and Amersham by-election?

The idea of growth areas (where allocation would amount to automatic development consent) has certainly been abandoned, but the consequence of a number of the proposals in the Bill in my view leads us more towards a system where there is much less decision making flexibility in relation to individual planning applications and appeals. Instead, planning decisions will need to be made in accordance with the development plan and national development management policies “unless material considerations strongly indicate otherwise”.

So developers will need to make sure that:

⁃ development plans (local plans, neighbourhood plans) etc allocate the necessary land.

– the associated mandatory local design codes are workable

⁃ they can work within the constraints of whatever national development management policies the Government arrives at.

If development accords with these requirements, planning permission should be a doddle. If not, you plainly need to overcome a heavy presumption against. Our current flexible system (sometimes good, sometimes bad) will take a big lurch towards being rule-based or, dare I say it, zonal.

This may be a Good Thing or it may be a Bad Thing. Much depends on whether development plans, local design codes and national development management policies are properly tested for their realism. There will be even more focus on testing the soundness of local plans.

However, when it comes to local plan making, there are some major unresolved uncertainties:

⁃ First, what housing numbers do local authorities need to plan for? The Government still aspires to a 30 month local plan preparation to adoption timescale but that is only going to work if you have a largely “plug in and play” approach to the numbers, as was envisaged in the White Paper. What will happen to the standard methodology? We don’t get know. The Government’s policy paper says this:

“The changes in the Levelling Up and Regeneration Bill will require a new National Planning Policy Framework for England. The Government continues to listen to the representations of MPs, councillors and others on the effectiveness not only of the formula but the surrounding policies. Alongside Committee stage of the Bill, it intends to publish an NPPF prospectus setting out further thinking on the direction of such policies.”

What numbers are we planning for as a country? Are we still targeting 300,000 homes a year? The Government’s response to the Select Committee report on the planning white paper says this:

“The Government is determined to create a market that builds the homes this country needs. Our ambition is to deliver 300,000 homes per year on average and create a market that will sustain delivery at this level. There is compelling evidence that increasing the responsiveness of housing supply will help to achieve better outcomes. There seems to be consensus that 250,000 to 300,000 homes per annum should be supplied to deliver price and demand stability. For example, a 2014 joint KPMG and Shelter report highlighted that 250,000 homes per annum were needed to address price and demand pressures.”

⁃ Secondly, what will replace the duty to co-operate, which will be abolished? What will the new duty to assist really amount to? Can authorities adjoining urban areas with high unmet housing needs simply turn away from meeting those needs?

⁃ Thirdly, what if the allocations in the plan prove to be undeliverable or do not come forward? The safety net/potential stick of the five year housing land supply requirement (and presumably the tilted balance) in the case of up to date plans is to be abolished according to the policy paper:

“To incentivise plan production further and ensure that newly produced plans are not undermined, our intention is to remove the requirement for authorities to maintain a rolling five-year supply of deliverable land for housing, where their plan is up to date, i.e., adopted within the past five years. This will curb perceived ‘speculative development’ and ‘planning by appeal’, so long as plans are kept up to date. We will consult on changes to be made to the National Planning Policy Framework.”

Much is to be resolved here before we can begin to work out whether the proposals in the Bill will be an improvement on the present position.

Of course, the Government recognises that more work is needed. The following forthcoming consultation processes are identified:

“Technical consultations on the detail of the Infrastructure Levy and changes to compulsory purchase compensation.

• A consultation on the new system of Environmental Outcomes Reports which will ensure we take a user-centred approach to the development of the core elements of the new system, such as the framing of environmental outcomes as well as the detailed operation of the new system.

• A technical consultation on the quality standards that Nationally Significant Infrastructure Projects will be required to meet to be considered for fast-track consenting and associated regulatory and guidance changes to improve the performance of the NSIP regime.

• Proposals for changes to planning fees.

• Our vision for the new National Planning Policy Framework (NPPF), detailing what a new Framework could look like, and indicating, in broad terms, the types of National Development Management Policy that could accompany it. We will also use this document to set out our position on planning for housing, and seek views on this, as well as consulting on delivering the planning commitments set out in the British Energy Security Strategy.”

I hope this serves as some sort of introduction to the Bill and a taster as to some of the issues which will be occupying so many of us as the Bill passes through its Parliamentary stages. I don’t expect it to be on the statute book before early 2023, with a fair wind, and most of its provisions will not be in force until 2024 at the earliest. Final health warning: Bills change – we can expect plenty of amendments, omissions and additions over coming months.

Aside from my earlier plugs for our newsletters and the Planning Law Unplanned clubhouse sessions, I would also recommend two other blog posts: those of Nicola Gooch and Zack Simons . None of us has come up with a satisfactory LURB pun yet but I’m sure we all have our teams working on it.

Simon Ricketts, 14 May 2022

Personal views, et cetera

Beauty, Infrastructure, Democracy, Environment, Neighbourhoods

To The Centre Of The City, In The Night

Live arts should be the throbbing heartbeat of any city.

Cultural opportunities, the creative arts and a vibrant night-life are obviously a big reason why those who are the basis of the local economy and its growth, particularly young professionals, choose to put down their roots in a place.

Venues and studios for independent creative arts – for bands, performers and artists to play, rehearse, create – are the petri dish from which something grows that comes to define a city, that may become a mainstream business, employer and exporter in its own right (and we are increasingly in a world where the creative arts and tech are intertwining, making this even more likely).

I’m not talking of dead cultural artefacts, Government money for another Beatles attraction in Liverpool, I’m talking about the between-spaces, the meanwhile-uses, the forgotten-buildings, the spaces-set-aside-by-enlightened-owners – where (at low cost and with a looser set of constraints), from apparently unpromising seeds, flowers bloom.

This is personal for me – it may be for you too. I grew up in Southampton and it was all about the local music venues – seeing people like me 12 feet away on a foot-high stage, then trying it myself, amateur hour or what? – and then about choosing London as my university town, yes for the music and culture – got to confess it wasn’t at that point for the employment opportunities. Where I then stayed, for decades.

As I’ve gradually moved away in time and distance from all this, I’ve realised more and more how important grassroots/independent culture is – not just in the way that it provides a channel for young people to express the raw creativity that we all have before it’s schooled and worked out of us and which often is the most powerful (for being honest) form of artistic expression – but also how important it is for cities and towns themselves. Nowhere should end up as a husk, an artefact, a collection of once interesting buildings and not much else.

We’re going to have a discussion about all of this at a Clubhouse session at 5pm on Monday 1 November, at which I’m so glad that I will be joined by people who know much more than me about how to make culture thrive in cities. Clara Cullen is venue support manager at the Music Venue Trust, which exists to help protect, secure and improve grassroots music venues across the UK. Tom Clarke is national planning advisor at the Theatres Trust, which seeks to protect the future of live performance (of all kinds), by protecting and supporting theatre buildings which meet the needs of their communities (he’s also a live music nut). Stacey Adamiec is a strategic place maker, working with agents, landlords and authorities to create flexi and creative spaces. And most poignantly for me, we have Richard Williams. Richard at one time was leader of Southampton City Council but this is nothing to do with that. In 1981 he released a compilation album of tracks recorded by Southampton bands, called City Walls. It was my last year at home before heading to London – I loved that album as a snapshot in time and place. He then wrote a book about the process of getting it together, “A Curry With John Peel”, and then, this year, 40 years on (40 years!) he released another album of tracks by today’s Southampton bands, City Walls 2. To compare and contrast is fascinating. I am so looking forward to the discussion and very much hope that you can join us – details at the end of this blog post.

It’s been tough for grassroots venues. With conflicting needs for land, given the understandable pressure for brownfield sites to secure housing and employment development; with less and less public funding, nationally or locally, and then in this recent time of pandemic, fear and lockdown.

But in recent years there have at least been some signs of light.

The “asset of community value” designation process introduced by the Localism Act 2011 has helped many venues (eg Heaven, Brixton’s Club 414, Guildford’s Boileroom, the Birds Nest in Deptford, Half Moon in Herne Hill and the After Dark club in Reading to name just a few) but of course the designation ultimately is more of a nudge than providing any absolute protection.

To have the “agent of change” principle included within national planning policy back in July 2018 was a big step forward. In the current NPPF this is paragraph 187:

“Planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (such as places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. Where the operation of an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or ‘agent of change’) should be required to provide suitable mitigation before the development has been completed.”

Last year, in response to the pandemic, work by the Theatres Trust and others secured two important additional protections for concert halls, venues for live performance and theatres:

• A ministerial statement on 14 July 2020 confirming that venues should be protected, at least for a temporary period, against land owners seeking to argue lack of viability based on the then precarious financial position that many were in:

“The Government recognises that the temporary closure of theatres, concert halls and live music performance venues due to Covid-19 has the potential to lead to permanent loss of important cultural and economic assets, and is determined that otherwise viable facilities are not lost forever.

The purpose of this Written Ministerial Statement, is to set out how local planning authorities should approach decision-making to prevent the unnecessary loss of these venues. With immediate effect, local planning authorities should have due regard to their current circumstances when considering whether to grant planning permission for a change of use or demolition of a theatre, concert hall or live music performance venue that has been made temporarily vacant by Covid-19 business disruption.

Where an alternative use or demolition for a long-term vacant theatre, concert hall or live music performance venue is proposed, local planning authorities should consider the application in the normal way. The Theatres Trust is a statutory consultee under the Town and Country Planning (Development Management Procedure) (England) Order 2015 (S.I 2015/595) for applications seeking to develop any land where there is a theatre and will have an opportunity to comment on any application relating to theatres.

This policy remains in place until 31 December 2022 unless superseded by a further statement.”

• A change to the General Permitted Development Order on 9 November 2020, meaning that planning permission is now needed for their demolition, in the same way as had previously been introduced for pubs.

I’ll leave others to comment on whether the measures in this week’s Autumn Budget and Spending Review were sufficient but obviously there were various announcements which are potentially relevant:

• “£1.7 billion worth of projects to upgrade local infrastructure through the first bidding round of the £4.8 billion Levelling Up Fund”

• “the first 21 projects to benefit from the £150 million Community Ownership Fund – which will help communities across the UK protect and manage their most treasured assets. This investment puts community priorities at its core and will improve the local infrastructure crucial to everyday life, such as transport and town centres.”

• “Tax reliefs for museums, galleries, theatres and orchestras will further support the cultural life of towns and cities across the UK”.

• “a new temporary business rates relief for eligible retail, hospitality and leisure properties for 2022-23. Eligible properties will receive 50% relief, up to a £110,000 per business cap”

• “funding the £800 million Live Events Reinsurance Scheme”

The Government’s long-awaited Levelling Up White Paper will apparently provide additional proposals. I’m conscious that in many ways this shouldn’t all be about the Government, whose most important role may simply be to “do no harm”. There are an increasing number of important voices and organisations – aside from the Music Venue Trust and Theatres Trust and many other groups, in London of course since 2016 Amy Lamé has been our first “night czar” and able to cast a light on important underlying issues – including the safety of women out at night, and the return of the night tube (from 27 November).

But what more do we need to see, across the country (and in towns as well as cities)?

Do join us at 5pm on Monday – we can chew over all of this, led by our special guests, but hopefully share our own stories about how important grassroots live venues and indie city culture more generally are/have been for us, our families and communities. Just talking about the music is also fine! Link to app here.

Simon Ricketts, 28 October 2021

Personal views, et cetera

Extract from photo by Sebastian Ervi , courtesy of Unsplash.

The Devolution Dance: The Planning White Paper & Local Government Reorganisation, Neighbourhood Planning

A quick two-step:

1. Given its relevance to the proposals in the planning white paper, what is the Government’s current thinking on local government reorganisation (details of which are to be set out in the devolution and local recovery white paper)?

2. What role is envisaged for neighbourhood planning in the planning white paper?

Local government reorganisation

The planning white paper’s proposal that each district and borough be handed by MHCLG its own local housing need figure to meet in its plan would clearly be more manageable by Government if there were to be fewer districts and boroughs, or if there were to be more joint planning arrangements and Mayor-led combined authorities (“We also propose that it would be possible for authorities to agree an alternative distribution of their requirement in the context of joint planning arrangements. In particular, it may be appropriate for Mayors of combined authorities to oversee the strategic distribution of the requirement in a way that alters the distribution of numbers, and this would be allowed for.”).

Perhaps we are all putting two and two together and making five but there has been some expectation that with Strictly Come Dancing style choreography the devolution and recovery white paper would sashay in any moment now to propose the acceleration of the current process that has been underway in recent years, locally driven through funding constraints, of the ad hoc amalgamation of individual districts and boroughs into new unitary authorities.

Not quite panic on the dance floor but this prospect is causing temperatures to rise in various quarters, e.g. Leader denies Surrey plan to create largest unitary council in England is ‘county power grab’ (Surrey Live, 5 September 2020) (“Waverley Borough Council’s leader has denounced a county council proposal to create the largest unitary authority in England as “a disaster” and “a power grab by Surrey that should be resisted at all costs“.), Lancashire councils face abolition in shake-up (BBC, 29 July 2020) (“One senior Conservative figure in Lancashire argued the three-way division risked a “bloody civil war” within the party locally.”).

Before having to resign from Government on 8 September 2020, Simon Clarke was the MHCLG minister overseeing the white paper. He gave a speech to the Northern Powerhouse Summit on 15 July 2020:

“This September, the government will therefore be publishing the Devolution and Local Recovery White Paper…which will lay a clear path for levelling up every region of our country.

It will provide a roadmap for establishing a series of new mayors within the next ten years – representing the greatest decentralisation of power in our modern history.

In our towns, cities, and rural counties, we will give local places the ability to come forward with new mayoral devolution deals which work for every community, allowing them to become masters of their own destiny.

The White Paper will also redefine the way in which local government serves its communities by establishing the unitarisation of councils as a vital first step for negotiating these mayoral devolution deals in the future.

A move to unitarisation will streamline the delivery of good governance…”

Strong stuff. But then, possibly in the light of Clarke’s departure, the rumours started that the devolution and recovery white paper was to be delayed – the MJ reported that it was due to be published in October, during the week of the Conservative party conference, but has been “put on the back burner, pending a rethink”. See also LGCplus’ piece on 21 September 2020: Ministers accused of ‘starting fires and walking’ as reorganisation momentum collapses.

The rumours as to timing appear to be inaccurate, given MHCLG minister Lord Greenhalgh’s response to a question in the House of Lords on 22 September 2020:

“We intend to publish the devolution and local recovery White Paper the autumn. This will set out our plans for expanding devolution across England to support economic recovery and levelling up, building on the success of our directly elected combined authority mayors.”

But are we to see a watering down of the strong armed “unitarisation as a vital first step towards mayoral devolution deals” messaging of that Clarke speech? In Greenhalgh’s subsequent responses to questions in the same 22 September session, he seems to play down how radical the proposals will be:

“We are not looking at top-down devolution, but focusing on local city and growth deals as the way forward. We are not looking at top-down devolution, but focusing on local city and growth deals as the way forward.”

“… there will be no blanket abolition of districts and that we will take a locally driven approach and ensure that decision-making is taken as close as possible to the people we are serving.”

So possibly not the big bang argued for in a Centre for Cities report, Levelling up local government in England (11 September 2020), which proposed “redrawing the English political map, replacing the 348 existing authorities with 69 unitary or combined ones with greater powers and resources and whose political boundaries match the economic geography in which people live and work.”

“ • Everywhere will reform — all two-tier systems will be reformed to become single tier, while economic powers held in the lower tier of Mayoral Combined Authorities will move up

• Everywhere will have a directly-elected leader — voters will have a clear choice about who will be in charge and they will have clear four-year mandate to act

• Local government boundaries will match local economic boundaries — they will always be blurry, but the aim should be to contain as much of the local economy within the local authority area as possible — that is the area over which most people locally work and live their lives

• Local government will have the capacity to govern effectively while remaining local — economic powers should be held by local governments covering at least 300,000 people and no more than 800,000. This is to strike a balance between covering the local economy and maintaining a connection with local people and businesses. Lower-tier authorities in Greater London and where there is a Mayoral Combined Authority will focus on personal services and may be smaller than 300,000 people”

Could local government seriously cope with such wholesale change at the same time as swallowing a significantly changed planning system? Is it right to require local authority amalgamations as a pre-condition of funding? Does large scale unitarisation leave a local democratic deficit? But, on the other hand, can the system proposed in the planning white paper have a hope of working with so many individual authorities and without even the current discipline, wonky as it is, of the duty to co-operate? And, for London, what will be the role of the Mayor of London?

Of course, as we move towards larger unitary authority areas, thoughts turn to the potentially increased role for neighbourhood planning.

Neighbourhood planning

Someone asked me last week to summarise what the planning white paper meant for neighbourhood planning – would it end up with a greater or a reduced role under the new system? Not an easy question to answer on the basis of what is said in the document but I think we can at least deduce the following:

• neighbourhood planning is to be retained;

• it will in some ways have an enhanced role, including potentially in relation to the preparation of design guides and design codes;

• the Government appears serious about making community engagement more effective, through, for instance, greater use of technology;

• the neighbourhood share of CIL (up to 25%) will be retained under the new combined infrastructure levy;

• but in other ways the communities will have less influence through neighbourhood planning, (1) partly as a consequence of overall housing numbers for local authorities being imposed by Government, (2) partly through development management policies being standardised nationally through the NPPF and (3) partly as a consequence of various types of development approval being removed from the traditional planning application process (for instance growth areas in local plans having the equivalent of outline planning permission and by further expansion of permitted development rights).

There are only two proposals in the white paper that directly focus on the role of neighbourhood planning:

“Proposal 9: Neighbourhood Plans should be retained as an important means of community input, and we will support communities to make better use of digital tools

Since statutory Neighbourhood Plans became part of the system in 2011, over 2,600 communities have started the process of neighbourhood planning to take advantage of the opportunity to prepare a plan for their own areas – and over 1,000 plans have been successfully passed at referendum. They have become an important tool in helping to ‘bring the democracy forward’ in planning, by allowing communities to think proactively about how they would like their areas to develop.

Therefore, we think Neighbourhood Plans should be retained in the reformed planning system, but we will want to consider whether their content should become more focused to reflect our proposals for Local Plans, as well as the opportunities which digital tools and data offer to support their development and improve accessibility for users. By making it easier to develop Neighbourhood Plans we wish to encourage their continued use and indeed to help spread their use further, particularly in towns and cities. We are also interested in whether there is scope to extend and adapt the concept so that very small areas – such as individual streets – can set their own rules for the form of development which they are happy to see.

Digital tools have significant potential to assist the process of Neighbourhood Plan production, including through new digital co-creation platforms and 3D visualisation technologies to explore proposals within the local context. We will develop pilot projects and data standards which help neighbourhood planning groups make the most of this potential.”

“Proposal 11: To make design expectations more visual and predictable, we will expect design guidance and codes to be prepared locally with community involvement, and ensure that codes are more binding on decisions about development.

“As national guidance, we will expect the National Design Guide, National Model Design Code and the revised Manual for Streets to have a direct bearing on the design of new communities. But to ensure that schemes reflect the diverse character of our country, as well as what is provably popular locally, it is important that local guides and codes are prepared wherever possible. These play the vital role of translating the basic characteristics of good places into what works locally, and can already be brought forward in a number of ways: by local planning authorities to supplement and add a visual dimension to their Local Plans; through the work of neighbourhood planning groups; or by applicants in bringing forward proposals for significant new areas of development.”

Many of you know much more about local government and neighbourhood planning matters than me – all comments welcome (even if we’re just dancing in the dark).

Simon Ricketts, 25 September 2020

Personal views, et cetera

Stay Alert! A Quick Guide To All Those MHCLG Announcements

On 13 May 2020, MHCLG published:

Guidance: coronavirus planning update

Guidance: Coronavirus compulsory purchase

Guidance: Coronavirus community infrastructure levy

Guidance: construction site working hours Q&A

Guidance: consultation and pre-decision matters

Guidance: plan-making

Guidance: neighbourhood planning

On the same day, the Planning Inspectorate updated its guidance on site visits, hearings, inquiries and events.

On 14 May 2020, the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 were made and came into force that day. The Regulations were accompanied by an Explanatory Memorandum.

The highlights

Validation and determination of applications for planning permission

No changes have been made to the timescales for determining planning applications. Developers are however encouraged to agree extensions of the period for determination. Local authorities have been urged to give priority to validating urgent COVID-19 related applications for planning permission and associated consents.

Publicising applications for planning permission

Temporary regulations (expiring on 31 December 2020) were made and came into force on 14 May to supplement existing publicity arrangements for planning applications, listed building consent applications and environmental statements for EIA development. There is now flexibility to take other reasonable steps to publicise applications and environmental statements if the usual specific requirements cannot be discharged relating to site notices, neighbour notifications, newspaper publicity or availability of hard copy documents. Steps can include the use of social media and electronic communications and they must be “proportionate to the scale and nature of the development”. Guidance has also been issued on this topic.

Planning Conditions

MHCLG has made it clear that planning conditions should not be a barrier to allowing developers and site operators flexibility around construction site working hours to facilitate safe working. Where only short term or modest increases in working hours are required, LPAs are encouraged to use their discretion to not enforce against a breach of working hours conditions. Where longer term measures or other significant changes are required, applications to amend conditions should be made, which LPAs should prioritise and turn around in 10 days. Requests to work up to 9 pm Monday to Saturday should not be refused without very compelling reasons.

Community infrastructure levy

The existing CIL regulations of course allow charging authorities limited flexibility to defer CIL liability. Amendments will be made to the regulations “in due course” to increase flexibility, but that will still depend upon charging authorities deciding to exercise the new discretion available to them. Authorities will be able to defer payments, temporarily disapply late payment interest and provide a discretion to return interest already charged. However, these changes will only apply to small and medium-sized developers with an annual turnover of less than £45 million. It remains to be seen how this limitation will be addressed in the regulations, for example where a special purpose vehicle, potentially offshore, has assumed liability. The new instalment policies for deferred payments will only apply to chargeable development starting after the changes come into effect, but they are anticipated to apply to “phases“ of the development starting after that date. The announcement on 13 May added that “existing flexibilities and the government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate, they will not be charged extra for matters that were outside of their control.”

Section 106 planning obligations

Local planning authorities are encouraged to consider the deferral of section 106 obligations, e.g. financial payments. This will require variations to existing section agreements and undertakings. Local planning authorities are encouraged generally to take a “pragmatic and proportionate” approach to the enforcement of section 106 planning obligations

Virtual Committees

These are already enabled, by way of 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. MHCLG is working with the Planning Advisory Service (PAS) to provide further practical advice on the way these meetings are managed.

Planning Appeals

PINS issued a further update on 13 May. Site visits are being commenced and PINS is considering whether there are types of cases that can proceed without a site visit. The first digital appeal hearing took place on 11 May as a pilot and PINS is aiming for 20 further examinations, hearings and inquiries in May and June. It is also exploring hybrid options – a mix of in person and by video public/telephone hearings and is considering “social distance” events.

Local Plans

MHCLG is working on ways to address the local plans process in order to meet aspirations to have all local plans in place by 2023. In particular, the use of virtual hearings and written submissions is being considered.

Neighbourhood Plans

Regulation 12 of the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 prevents any neighbourhood planning referendum from taking place until 6 May 2021. Updated guidance was issued in April allowing neighbourhood plans awaiting referendums to be given significant weight in decision making.

Nationally Significant Infrastructure Projects

The government is working with consenting departments to support the continuation of decision-making to minimise the impact of current restrictions on the consideration of DCO applications and the Planning Inspectorate has updated its guidance.

Compulsory purchase orders

There is now pragmatic advice as to the service of documents. Acquiring authorities are encouraged to allow more time for responses to requests for information about interests in land or submitting objections to CPO. There is also encouragement to authorities to act responsibly regarding business and residential claimants, particularly regarding the timing of vesting orders and payment of compensation, which is particularly relevant when considering evictions. Authorities are reminded of their obligation to make advance payments of compensation in accordance with statutory time limits given cash flow difficulties which claimants may currently face.

Concluding remarks

To my mind, this is all welcome and congratulations are due in particular to the relevant civil servants. Of course, there is more to be resolved, for instance the vexed question of extending time limited planning permissions (see my 4 April 2020 blog post Pause Not Delete: Extending Planning Permissions) as well as the Regulations in relation to CIL, but it is good to see this progress. No wonder MHCLG’s Simon Gallagher was prepared to come on this week’s Have We Got Planning News For You!

Whether by serendipity or, now I think about it, of course, good planning, the RTPI published on 15 May 2020 its research paper Pragmatic and prepared for the Recovery: The planning profession’s rapid response to Covid-19. This last week has been a good start.

Simon Ricketts, 16 May 2020

Personal views, et cetera

(Thank you to Town’s Michael Gallimore and Lida Nguyen for allowing me to draw from a client note prepared earlier this week).

The Big Society Theory

“We’ve got to have rules and obey them. After all, we’re not savages. We’re English, and the English are best at everything.” (W. Golding, Lord of the Flies)

David Cameron was reported in a Third Sector piece last year as accepting that his Big Society agenda (first set out in detail in his 19 July 2010 Liverpool speech) had its failings. Whilst he did not “accept the criticism that the agenda, which encouraged more voluntary participation in public and community life and services, was simply a cover to disguise public sector funding cuts“, he believed “the fair criticism that was made kind of came in two parts”. The first was that “you can’t expect all of these big society organisations, all of these social entrepreneurs, all of these charities and voluntary bodies to spring into life”.

The second fair part of the criticism, he said, was that “you can’t expect them to be able to cover all of the country, every region of the country, all in one go”.

These organisations were “very often under-capitalised, have problems in replicating their service” and had “difficulties expanding and getting the access to great technology or brilliant management or great systems”, said Cameron.”

Well, plenty of us with practical experience of the Localism Act 2011 would have a few additional comments. It is interesting to look back at what we were predicting when the Bill was going through Parliament – I don’t think I was that far off the mark in a Financial Times piece, Future Plans (27 May 2011, subscription-only). We all had concerns about the complicated procedures within the new legislation, likely to be most used those with the time and money, not always with pro-development objectives in mind. Neighbourhood plans have generated serial litigation, due to their often unhappy fit with other tiers of plan-making. Procedures such as the Community Right To Build have hardly been used. Others, such as the designation of land or property as Assets of Community Value lead to much activity and adversarial process (eg the cases referred to in my 14 July 2018 blog post, 2 ACV Disputes), whilst ultimately being pretty toothless.

Has the Big Society, localism, neighbourhood planning – call it what you will – led to better, more positive, planning outcomes that meet public needs? What should be the respective roles of democratically elected local government and of community-based bodies?

A short LinkedIn post by Nick Dines prompted me to have a quick look at a paper published this week by DCMS, Civil Society Strategy: building a future that works for everyone (9 August 2018).

What is Civil Society for a start?

“Civil society refers to all individuals and organisations, when undertaking activities with the primary purpose of delivering social value, independent of state control. The government wants to build a partnership with charities and social enterprises, with volunteers, community groups and faith groups, with public service mutuals, socially responsible businesses and investors, and with the institutions which bring sports, arts, heritage, and culture to our communities.”

The purpose of the strategy is to set out “how the government will work to support and to strengthen civil society, without compromising its independence.”

What caught my eye in Nick’s post was a reference to the possible implications of this for planning. In fact, without any detail, the document drops some pretty worrying hints and one wonders what co-ordination has so far taken place between DCMS and MHCLG:

“The government will launch the Innovation in Democracy programme to pilot participatory democracy approaches, whereby people are empowered to deliberate and participate in the public decisions that affect their communities. The government will work with local authorities to trial face- to-face deliberation (such as Citizens’ Juries) complemented by online civic tech tools to increase broad engagement and transparency.”

Public votes on planning decisions? That would be popular no doubt, for those wishing to derail controversial schemes but we may as well tear up the current planning system and NPPF – and forget about meeting any objectively assessed needs. Bottom-up planning? It’s that Big Society Theory, folks.

Furthermore:

“The government will continue to encourage communities to use the community rights available to them. We will issue revised guidance to help communities take ownership of local assets. We will signpost support and advice available to communities to improve and shape where they live through the new Community Guide to Action and the MyCommunity website, the licence for which we have recently renewed.

[…] the government is exploring means of ensuring community-led enterprises which take over public assets or services are able to secure the funding they need”

I note that this is in a period within which local government struggles to maintain libraries and other public services, with pressure to cut budgets in fact increasing (see for instance a Room 151 piece, Councils anticipate cutting services to ‘legal minimum’ published on 9 August 2018, that reports on a recent survey of council leaders carried out by the New Local Government Network). The very definition of “civil society” by implication excludes local government. Money for “community-led enterprises” rather than democratically-led local authorities? It’s that Big Society Theory, folks.

And:

“The government will explore the suggestion that the Social Value Act should be applied to other areas of public decision-making such as planning and community asset transfer. ”

..which is an enigmatic and rather odd comment. The Public Services (Social Value) Act 2012 imposes a duty on public authorities, in procuring public services, to consider:

(a) “how what is proposed to be procured might improve the economic, social and environmental well-being of the relevant area, and

(b) how, in conducting the process of procurement, it might act with a view to securing that improvement.”

If what is proposed is the extension, beyond contract procurement and into planning, of the duty to consider how the relevant decision “might improve the economic, social and environmental well-being of the relevant area“, this would add nothing of any value whatsoever given, for instance, the very definition of sustainable development at the heart of the old and new NPPF.

Of course let’s do whatever we can to increase people’s engagement with their communities but also, more importantly (in the face of the increasing threat posed by anti-democratic populism – where a large social media following can be more influential than votes in the ballet box), local representative democracy. Neighbourhood planning and localism should not be at the expense of local representative democracy. If district and borough councils are seen as having real clout and the wherewithal to improve the conditions of their constituents, people will turn out to vote and an increasingly wide and talented cross-section of the local community will be prepared to invest time in carrying out roles as elected councillors for their wards. That’s my civil society strategy anyway.

Who wants the conch next?

Simon Ricketts, 12 August 2018

Personal views, et cetera

NB I thought this was a great bit of community enterprise though:

Housing Needs, Housing Shortfalls

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

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

(David Bowie)

The new NPPF introduces the requirement for local planning authorities to use a standard method to arrive at their local housing needs assessment, “unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.”

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

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

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

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

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

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

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

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

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

The application of the new NPPF to the draft London Plan

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

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

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

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

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

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

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

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

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

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

Other plans submitted for examination before 24 January 2019

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

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

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

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

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

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

What now of the tilted balance?

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

There is a shortfall where:

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

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

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

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

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

Relevance of degree of shortfall

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The decision was quashed.

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

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

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

Simon Ricketts, 5 August 2018

Personal views, et cetera

2 ACV Disputes

The listing of land or buildings as an asset of community value has legal consequences but ones that will seldom be determinative as to an owner’s longterm plans. Whilst disposal of a freehold or long leasehold interest can’t take place without community groups being given an opportunity to bid, there is no obligation to accept any community bid that is made. The listing can be material in relation to the determination of an application for planning permission, but the weight to be attached to the ACV listing is a matter for the decision maker.

So it is interesting to see the extent of litigation that is arising.

There have been many First-tier Tribunal rulings. A 23 June 2016 Public Law Today article by Christopher Cant summarises many of them as at that date and indeed Mr Cant has produced a 300 page guide to the regime, which is up to date as at 8 June 2018.

By way of a recent example of the desperate struggle by pub chains to resist ACV listing of their pubs, Punch Partnership (PML) Limited v Arun District Council (Judge Anthony Snelson, First-tier Tribunal, 7 June 2018) is interesting. The Arun and Adur branch of CAMRA had nominated the Henty Arms, in Ferring, West Sussex. The council had accepted the nomination. Punch sought to rely on a series of technical points in relation to the nature of the nominating body to seek to appeal against the listing:

⁃ First, the “surprising assertion that the Arun and Adur branch of CAMRA…doesn’t exist“, based on the close relationship of branch with the parent organisation. The judge held that there was “nothing in the argument…No authority is cited for the proposition that a branch cannot have legal personality unless it is independent of the ‘parent’ body. A moment’s reflection shows the notion to be unfounded“.

⁃ Secondly, that “the nomination was made without the authority of members of the ‘branch’, and was not a community nomination“. The judge rejects this out of hand: “The idea that the fact that the nomination exercise was handled by a small number of individuals justifies the conclusion that they were acting without authority strikes me as more than a little peculiar. It is in the nature of things that organisations allocate tasks to individuals and do not attempt to perform them collectively. As the evidence overwhelmingly shows, that is what happened here. The fact that the model constitution requires the branch to operate through a committee does not mean that every decision must be taken by the committee. There is, to my mind, not the first beginnings of an argument that the nomination was unconstitutional, let alone that it was a nullity.”

⁃ Thirdly, that there is no prohibition against the distribution of any surplus to members. The judge found that the legislation only requires that the body “does not” distribute any surplus to its members and there was no challenge to the evidence that surpluses are not distributed to members.

⁃ Fourthly, that any surplus is not applied for the benefit of the local authority area or that of the neighbouring local authority. Again, the judge found that there was nothing in the assertion. In fact any surplus was applied towards the next year’s Worthing Beer Festival and to a publication entitled Sussex Drinker.

⁃ Fifthly, that the branch did not have at least 21 local members. The judge found that “the membership exceeds and [at] all relevant times exceeded 700…of who, 281 had addresses entirely within the area of Arun and neighbouring districts“.

The judge concludes with a withering final paragraph:

“Although pressed with immense energy and determination, I am satisfied that this appeal is entirely free of merit. It is founded on an unduly narrow and unrealistic interpretation of legislation which, it should be remembered, was designed to be accessible to citizens from all walks of life, with or without legal representation, as a means of enabling landowners and communities to grapple with the substance of local issues that matter to them. It would be unfortunate and contrary to Parliament’s intention if this jurisdiction became mired in technicalities and procedural points – and all the more unfortunate if appeals routinely resurrected arguments which have been fully debated and rejected in earlier cases.”

The second example is a ruling of the Court of Appeal, no less, in Banner Homes Limited v St Albans City and District Council (Court of Appeal, 23 May 2018).

A 12 acre field had been owned by Banner Homes since 1996. According to Lady Justice Sharpe in the lead judgment, it “has been used by the local community for more than 40 years for various peaceful and beneficial recreational activities, such as children’s play, walking, kite flying, exercising dogs, and the photography of flora and fauna. Banner Homes did not give express permission or grant a licence for the local community to use the Field (beyond the public footpaths); but it was well-aware the Field was used in this way by the local community, it made no objection, and until recently, it took no steps to stop it.”

Following nomination by a local residents’ association the council listed it as an ACV in March 2014. In September 2014, shortly before a review hearing in to the listing was to be conducted by the council, “Banner Homes fenced off the Field so that only the public footpaths could be accessed by members of the public. This remains the position today.”

Use of the field beyond the public footpaths was agreed to constitute a trespass. “The single issue that arises in this appeal is whether such unlawful use can constitute a qualifying use (or “actual use” to use the statutory language) for the purpose of listing an asset as an “asset of community value” pursuant to section 88 of the 2011 Act.”

The relevant test under section 88 (1) and (2) of the Localism Act 2011 is whether there is:

“…(a) an actual current use of the building or other land that is not an ancillary use furthers the social wellbeing or social interests of the local community, and
(b) it is realistic to think that there can continue to be non-ancillary use of the building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community.

(2) For the purposes of this Chapter but subject to regulations under subsection (3), a building or other land in a local authority’s area that is not land of community value as a result of subsection (1), is land of community value if in the opinion of the local authority—
(a) there is a time in the recent past when an actual use of the building or other land that was not an ancillary use furthered the social wellbeing or interests of the local community, and
(b) it is realistic to think that there is a time in the next five years when there could be non-ancillary use of the building or other land that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community.”

The First-tier Tribunal had rejected in these terms Banner’s argument that it was not realistic to think that there could continue to be use of the field for recreational purposes:

“Given the long history of peaceable, socially beneficial (if formally unauthorised) use of the Field, and of the previous views of the owners, I do not consider that it is at all fanciful to think that, in the next five years, there could be non-ancillary use of the land, along the lines that pertained up to September 2014. The timing of the decision to fence the footpaths – coming hard upon the listing under the 2011 Act – strikes me as material. Also of significance is the uncertain present planning position of the land, where a recent application for the grazing of horses has been refused. Whilst I note Banner Homes’ current stated stance, it is not fanciful, given the history of the Field, to think that Banner Homes may well conclude that their relations with the local community will be best served by restoring the status quo or by entering into some form of licence arrangement with the Residents’ Association or similar grouping.”

The Upper Tribunal did not interfere with that finding and permission was not granted to appeal to the Court of Appeal on that point.

So did it matter that the recreational use was unlawful? Douglas Edwards QC for Banner sought to rely on the “in bonam partem” principle, “a principle of construction that presumes against the construction of a statutory provision so as to reward an unlawful action with a benefit, unless a contrary Parliamentary intention is revealed. Absent, he submits, a clear indication to the contrary, Parliament is not to be taken to have intended unlawful conduct to be rewarded by the grant of a right or benefit, as would occur in this case if the listing decision were to be maintained.”

The Court of Appeal rejected application of the principle, and any reliance on the “notorious” facts of Welwyn Hatfield Borough Council v Secretary of State (Supreme Court, 6 April 2011) (Mr Beesley and his hidden house). The “legislative intention is plainly that “actual use”, in this statutory context, should mean what it says“. Whilst she accepted that there may be other cases where the conduct is closer on the facts to those in Welwyn Hatfield, in cases such as this one, “it is hard to couple the word “unlawful” with the activities (or “use”) under consideration, let alone with any suggestion they are engaged in illicitly to obtain a benefit under the Scheme”. In this case Banner knew about the trespasses and indeed the local residents’ group had done much to preserve and enhance the open rural nature of the site.

Lord Justice Davis added:

“It has been an unfortunate consequence in this case that, by reason of the nomination, Banner Homes felt constrained, in order to protect its commercial interests as the land owner, to fence off the Field from the public footpaths. It would be a further unfortunate consequence if other land owners, perhaps holding land with a view to potential development in the future, likewise were to feel constrained to restrict public access to their land. That particular unfortunate result which has arisen in this particular case may prove to be an unintended consequence of the 2011 Act. But be that as it may, that can provide, of itself, no reason for departing from the clear statutory purpose behind, and the clear statutory language of, the 2011 Act.”

On the facts, one wonders why the local residents did not apply for registration of the land as a village green, a rather more high powered vehicle for opponents of development, or defenders of the status quo, than the humble ACV. No doubt one of you will tell me but I wonder whether it may be something to do with the “trigger events” introduced by the Growth and Infrastructure Act 2013 that close out the possibility of registration. I have a copy of the judgment of Deputy Judge David Elvin QC in Cooper Estates Strategic Land Limited v Wiltshire Council (5 July 2018), which is potentially important in the breadth of scope that is given to trigger event 4 (a development plan policy that “identifies the land for potential development“), but will hold off blogging on it until it appears somewhere online.

In the meantime, the procession of ACV listings will continue, much activity and some litigation, but to what end?

Simon Ricketts, 14 July 2018

Personal views, et cetera

Dear Mr Raab, This Case Illustrates Much Of What Is Wrong With Planning

Spare a thought for Dominic Raab, who was appointed minister for housing on 9 January 2018. (Is he also minister for planning as his predecessors were? Who knows?). Linklaters-trained lawyer, he may have thought that the EU was byzantine in its tiers of policy making but that is surely as nothing compared to the English planning system.
I do hope that Mr Raab sits down to read Dove J’s judgment in Richborough Estates Limited (and 24 other co-claimants) v Secretary of State (12 January 2018). This is of course the challenge by various land promoters and house-builders to the written ministerial statement made on 12 December 2016 (without prior consultation) by Mr Raab’s predecessor but one, Gavin Barwell. I blogged about the WMS at the time (That Written Ministerial Statement, 29 December 2016).
For me the case illustrates the unnecessary policy complexities arising from unclear statements, ad hoc glosses to previous policies and the unclear inter-relationship between the NPPF, PPG and written ministerial statements. It also evidences the obvious tension between on the one hand the Government’s desire to increase housing land supply by ensuring that failure by authorities to provide adequately has real consequences and on the other hand the Government’s desperation to retain public confidence in neighbourhood planning. If that wasn’t enough, you have within it the attempt by policy makers to take into account the implications of the Supreme Court’s ruling in Suffolk Coastal – that one should also definitely be on Mr Raab’s reading list.
You will recall that, despite the policy in paragraph 49 of the NPPF that relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites (triggering the presumption in favour of sustainable development in paragraph 14), the WMS provided that relevant policies for the supply of housing in a neighbourhood plan should not be deemed to be ‘out-of-date’ where the WMS is less than two years old or the neighbourhood plan has been part of the development plan for two years or less; the neighbourhood plan allocates sites for housing; and the local planning authority can demonstrate a three-year supply of deliverable housing sites.
Effectively the five year housing land supply target was being significantly watered down, to a three year target, where an up to date neighbourhood plan, allocating sites for housing (however few) was in place. The policies in that plan would still have full effect. Following the Supreme Court’s ruling in Suffolk Coastal, which clarified the operation of paragraphs 14 and 49, the Government changed its PPG but policies in neighbourhood plans which met the criteria in the WMS were still to be given ‘significant weight’ notwithstanding there not being a five years’ housing supply.

Richborough and the other claimants sought to quash the WMS on various grounds. They argued:

– the WMS was inconsistent with paragraphs 14 and 49 of the NPPF and in having the effect of amending paragraph 49 without explicitly doing so represented an approach which was irrational and unlawful;

– the Government had made errors of fact in the research that was relied upon in formulating the policy;

– the WMS was invalid for uncertainty and confused given a lack of clarity as to how the three years’ supply was to be calculated;

– irrationality in the face of the stated intention of the NPPF to “boost significantly the supply of housing“;

– breach of legitimate expectation that there would be public consultation before planning policy for housing was changed by the WMS.

Dove J found for the Government on all grounds. He found that the Government has a very wide discretion in the way that it brings forward planning policy:
“Provided […] that the policy produced does not frustrate the operation of planning legislation, or introduce matters which are not properly planning considerations at all, and is not irrational, the matters which the defendant regards as material or immaterial to the determination of the policy being issued is [sic] a matter entirely for the defendant“.
The policy was capable of “sensible interpretation“: three years’ housing land supply was to be calculated using the same methodology as for calculating five years’ supply.
The judge did not interpret the WMS, with the subsequent addition of the guidance in the PPG, as amending paragraph 49 or 14 of the NPPF, albeit that it did “change national policy in relation to housing applications in areas with a recently made [neighbourhood plan]“. I am still struggling with this one – undoubtedly the WMS has changed the application of the NPPF in areas with a neighbourhood plan that meets the NPPF criteria. Even if this is not unlawful, surely this approach to policy making is to be discouraged – the NPPF does not now mean what it says.
The judge found that there was an adequate evidential basis for the WMS and errors of fact had not been made. The bar was low given that the WMS had only stated that ‘recent analysis suggests…“.
As regards the suggestion of irrationality in the face of the stated intention of the NPPF to “boost significantly the supply of housing“, the judge noted that this “is not an objective which exists on its own and isolated from the other interests addressed by the Framework…Amongst the other concerns for which the Framework has specific policies is, of course, Neighbourhood Planning...”
The judge set out the circumstances in which a legitimate expectation to consultation arises and found that such an expectation did not arise because a limited number of other policy announcements in relation to housing and planning matters had not been preceded by consultation. I understand that the claimants are likely to seek permission to appeal on this last ground.
So, there is disappointment for those of us who saw Gavin Barwell’s WMS as an inappropriate attempt to rewrite (without the consultation which would have been so helpful in arriving at a workable policy) a key protection that is within the NPPF against authorities that fail properly to plan for housing. The disappointment is reduced since the Suffolk Coastal ruling and the change to the PPG which followed (no doubt largely because the Government was faced with this litigation) where the Government sought to clarify that the WMS did not change the operation of paragraph 49, although “significant weight” should be given to the neighbourhood plan.
But, stepping back, the planning system has become as tangled again as it was at the time of the great bonfire of the previous planning policy statements and circulars in 2012 – we are having to pick uncertainly through unclear passages in the NPPF, the PPG and the WMS, reliant on regular revelations from the courts as to what the documents actually mean; decision-makers are having to ascertain the relative weight to be applied to various, often inconsistent, policies at national, local and neighbourhood level, and in the meantime the Government apparently has carte blanche to change its policies without prior consultation (policies were meant to be just in the NPPF, guidance in the PPG if you remember…).
There is a heavy burden on the shoulders of those drafting the new NPPF, that’s for sure! And a massive and important job to do for our new housing minister.
Simon Ricketts, 12 January 2018
Personal views, et cetera

How Much Weight Does The Draft London Plan Have In Decision-Making?

There’s a facetious answer, a political answer, a legal answer and a practical answer.
The facetious answer?

2 kg. (It’s a whopper).

The political answer?
I’ve heard Deputy Mayor Jules Pipe confirm at a London First event that the Mayor will immediately take it into account. The Mayor’s website says:
“The current 2016 consolidation Plan is still the adopted Development Plan. However the Draft London Plan is a material consideration in planning decisions. It gains more weight as it moves through the process to adoption, however the weight given to it is a matter for the decision maker.”
The legal answer?
It’s not totally totally up to the decision maker. That statement suggests that the Mayor or the boroughs could give controversial new policies in the plan (for instance increased restrictions in relation to student housing schemes) significant weight even at this stage, before the outcome of the consultation process which runs to 2 March 2018 or before the inspector has reported following the examination in public anticipated for Autumn 2018. That is not quite right.
In my view, paragraph 216 of the NPPF undoubtedly applies to the London Plan as a statutory development plan:

“From the day of publication, decision-takers may also give weight to relevant policies in emerging plans according to:

•the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given);

•the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and

•the degree of consistency of the relevant policies in the emerging plan to the policies in this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given).”

The application of paragraph 216 was closely examined by the High Court in Woodcock Holdings Limited v Secretary of State (Holgate J, 1 May 2015). A decision by the Secretary of State to dismiss (against his inspector’s recommendations) an appeal for 120 homes and related development in West Sussex was quashed. One of the grounds relied upon by the court was that the Secretary of State, in deciding to place significant weight on an emerging neighbourhood plan which had not undergone examination had not considered the second and third criteria within paragraph 216:
“In my judgment, the policy in paragraph 216 of the NPPF should be read as a whole. It is not a policy which simply makes the trite point that decision-makers may give weight to relevant policies in emerging plans. Rather it is a policy that they may do so “according to” the three criteria or factors which follow. The policy clearly stipulates that the three criteria are relevant in each case. Of course, when dealing with a particular planning proposal it may be the case that the relevant policies in a draft plan have not attracted any objections and so it would not be necessary to consider the second criterion beyond that initial stage. But plainly the second criterion is material in each case in order to ascertain whether a relevant draft policy has attracted any objections and if so, their nature, before going on to make an assessment of the significance of any such objections.”
(As an aside, following the quashing the Secretary of State redetermined the appeal, dismissing it again. That second decision was again challenged and the Secretary of State consented to judgment. Lo and behold, third time round the Secretary of State has now finally allowed the appeal in a decision letter dated 7 December 2017. Never give up!)
Applying Woodcock, I do not see how a decision maker can apply significant weight to the draft London Plan’s policies before knowing what objections have been made to them. It is presently a wish list (although of course, unlike with for instance local plans, the Mayor can reject the recommendations of the inspector who examines the plan, meaning that if he is sufficiently determined, those wishes are likely to be granted).
The practical answer?

Aside from being able to reject the plan examiner’s recommendations, the Mayor holds another trump card: time. Given the current delays on the part of the Planning Inspectorate, if he directs refusal of a scheme that is referable to him, on the basis of inconsistency with the draft plan, by the time any appeal is heard the plan is likely to have at least reached the examination stage.
The Planning Inspectorate’s most recently published stats make depressing reading:

You can add to that the further delays that often happen with appeals recovered for the Secretary of State’s own determination.
When it comes to challenging decision makers’ reliance on emerging draft policies, justice delayed is justice denied.
Notwithstanding the likely timing difficulty facing anyone seeking to challenge formally the Mayor’s approach, we should surely not accept assertions that the emerging London Plan should be accorded significant weight in decision making, particularly when inconsistent with the current statutory development plan (namely the current London Plan, any adopted borough plan and any made neighbourhood plan). Otherwise, will people feel that it is worthwhile investing time and resources in the examination process? What will be the point of the examination?
Simon Ricketts, 15 December 2017
Personal views, et cetera

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