New settlements – SIMONICITY

May Day, May Day – Labour’s Proposed Approach To Planning Reform

Brave timing, with local elections this week, but it is helpful finally to see some detail today as to Labour’s proposed approach to planning reform in today’s Times piece, Starmer’s growth plan is built on houses (The Times, 1 May 2023 – behind paywall):

“Labour will pledge to restore housebuilding targets and hand more power to local authorities; promise 70 per cent home ownership and hundreds of thousands of new council homes. Given the resistance of so many local authorities to development, that may sound like a contradiction in terms. But I’m told a Starmer government would wield both carrot and stick: councils would be made to work together to come up with plans for development at a regional level, spreading a burden few want to shoulder individually, with cash and infrastructure as the prize for new housing. (Bafflingly, they are under no obligation to work together now.) If proposed developments meet the standards set out in those local plans, they will be approved. So no longer would each town hall have to agree to what one senior Labour source calls “shitty speculative developments” to meet targets arbitrarily imposed upon them. But nor will they be allowed to opt out of building either.

Starmer’s government would also look anew at the green belt, swathes of which — including a petrol station in Tottenham Hale, north London — are neither green nor pleasant. Those sites would be liberated. Not all politics is local, however. We can also expect to hear more about national projects, driven from the centre too: intensive development on the 50-mile Oxford-Cambridge Arc and a generation of new towns are all under discussion as Starmer’s aides work up plans to be announced at Labour conference in September.”

EZ Does It: Charter Cities, Freeports, Development Corporations

My name is EZymandias, King of Kings;

Look on my Works, ye Mighty, and despair!

Nothing beside remains. Round the decay

Of that colossal Wreck, boundless and bare

The lone and level sands stretch far away

Nothing is new. Least of all the idea that economic activity may be generated by way of a state identifying a zone, whether in its borders or elsewhere, within which more advantageous rules apply for those doing business, for instance in terms of customs, taxes and constraints over development, and within which zone the state gives an organisation (which may be in part or wholly privately owned) a degree of regulatory autonomy.

The idea is topical. I referred in my 16 July 2022 blog post Neutrality to the “charter cities” idea that has been gaining traction in right wing circles and to Liz Truss’ espousal of “low planning zones: new investment zones around key parts of the United Kingdom with much clearer planning rules so people can get on with building straight away to generate those jobs and opportunities.”

To start to get to the root and very starting point of the charter cities concept, last night I watched Nobel Prize laureate and former Chief Economist of the World Bank Paul Romer’s 2009 Ted Talk, Why the world needs charter cities and I read his related paper, Technologies, Rules, and Progress: The Case for Charter Cities (Paul Romer, March 2010). Romer was one of Rishi Sunak’s professors at Stanford University. Sunak has described him as “brilliant and inspiring” .

If you look at what Romer is saying – or dip into the Charter Cities Institute’s website https://chartercitiesinstitute.org/ (the cheer-leading group for the concept) – it could be said to be rather simplistic (not to say colonial), pointing for instance to the success first of Hong Kong and then of the special economic zones established by China along its coastline, and suggesting that an equivalent model could allow first world countries to establish charter cities within developing countries, to mutual benefit and to the benefit of the population of the host country, who would have the “choice” as to whether to move to and subject themselves to the more economically-efficient (my summary) rules of the charter city.

Of course the usual questions arise: to what extent does such an arrangement impoverish or strip resources from those outside the charter city? How are human rights protected? How is the host country to ensure a fair deal is struck, given the likely inequality of bargaining positions? What of the right to self-determination for those in the area? In the fight against climate change, will this help, or hinder?

Madagascar and Honduras have indeed both explored but not implemented the idea. You may also recall a couple of years ago the media coverage around apparent discussions “between property developer Ivan Ko and the government of Ireland, with the former proposing the construction of a safe haven in the form of a semi-autonomous city in Ireland—one which would allow for the emigration of thousands of Hong Kong residents” (Charter cities: can they solve the world’s problems? (Thomson Reuters, 31 July 2020)).

The charter city label could equally be applied to the proposal/dream/nightmare that was the subject of this 27 July 2022 Guardian piece, Saudi Arabia plans 100-mile-long mirrored skyscraper megacity or indeed to the now abandoned Toronto “smart city” project promoted by Sidewalk Laboratories (part of the Alphabet group which also owns Google) – see Sidewalk Labs folds back into Google. Have “smart cities” had their day? (Verdict, 17 December 2021). Some fundamental issues swirling around those two projects alone for sure, about democracy, sustainability, data privacy and sheer Ozymandian folly.

Of course it’s not much of a step down from charter cities to freeports – it is all down to the detail of the regulatory arrangements and legal protections, as well as a question of scale.

Again topically, on 29 July 2022 DLUHC updated its guidance on Freeports although with no new substantive changes of note that I could see anyway.

From the guidance:

“Freeports are special areas within the UK’s borders where different economic regulations apply. Freeports in England are centred around one or more air, rail, or seaport, but can extend up to 45km beyond the port(s).”

“Our Freeports model will include a comprehensive package of measures, comprising tax reliefs, customs, business rates retention, planning, regeneration, innovation and trade and investment support.

Eligible businesses in Freeports will enjoy a range of tax incentives, such as enhanced capital allowances, relief from stamp duty and employer national insurance contributions for additional employees. These tax reliefs are designed to encourage the maximum number of businesses to open, expand and invest in our Freeports which in turn will boost employment.

Freeports will benefit from a range of customs measures, allowing imports to enter the Freeport custom sites with simplified customs documentation and delay paying tariffs. This means that businesses operating inside designated areas in and around the port may manufacture goods using these imports, before exporting them again without paying the tariff.

Freeports will provide a supportive planning environment for the development of tax and customs sites through locally led measures such as Local Development Orders or permitted development right development.”

The Government’s “Freeport model has 3 objectives:

a) establish Freeports as national hubs for global trade and investment by focusing on delivering a diverse number of investment projects within the Freeport regions, make trade processes more efficient, maximise developments in production and acquire specialist expertise to secure Freeports position within supply chains.

b) create hotbeds for innovation by focusing on private and public sector investment in research and development; by being dynamic environments that bring innovators together to collaborate in new ways; and by offering spaces to develop and trial new ideas and technologies. This will create new markets for UK products and services and drive productivity improvements, bringing jobs and investment to Freeport regions.

c) promote regeneration through the creation of high-skilled jobs in ports linked to the areas around them, ensuring sustainable economic growth and regeneration for communities that need it most. Local economies will grow as tax measures drive private investment, carefully considered planning reforms facilitate construction and infrastructure is upgraded in Freeports”

People of course point to the fact that it was Sunak who as Chancellor in 2021 announced the establishment of the latest round of eight English freeports:

East Midlands Airport
Felixstowe & Harwich including the Port of Felixstowe and Harwich International Port
Humber including parts of Port of Immingham
Liverpool City Region including the Port of Liverpool
Plymouth & South Devon including the Port of Plymouth
Solent including the ports of Southampton, Portsmouth and Portsmouth International Port
Thames including the ports at London Gateway and Tilbury
Teesside including Teesside International Airport, the Port of Middlesbrough and the Port of Hartlepool

How the planning system will operate within them is still uncertain and no doubt will be a patchwork quilt of differing arrangements. The Government’s Freeports bidding prospectus (November 2020) said this on the subject:

“3.6. Planning

Bidders will be able to take advantage of the planning reforms set out in the Consultation Response related to permitted development rights and simpler, area-based planning – in particular Local Development Orders (LDOs).

The government recognises the advantages that wider planning reform can bring to Freeports development. Therefore, as part of a longer-term programme of reform to England’s planning system, the government is exploring the potential to go further in these areas, as well as the potential to test ambitious planning proposals in Freeports, taking advantage of the controlled spaces that they offer.

In addition to the measures set out in the Freeports Consultation, the government is actively exploring a new, simpler framework for environmental assessment, as well as intending to review the National Policy Statement for Ports in 2021.”

(Dear reader, you will have noticed that 2021 has since come and gone).

For further reading I also recommend the House of Commons library paper, Government policy on freeports (14 February 2022).

I mentioned that this is the latest round of freeports. I’m sure we can expect the incoming prime minister to expand the initiative. But let’s not forget that freeports are nothing new and (aside from some nuanced detail around state aid) they are not really a dividend from our old friend in the corner, Brexit. Seven freeports operated in the UK at various points between 1984 and 2012.

Another great theme of the current prime ministerial tussle has been both candidates’ attempts to emulate their professed idol Margaret Thatcher. As a milk drinker I may be biased – as education minister in 1971 she took away free milk from the over sevens. I was seven. (Rishi and Liz weren’t born).

Shortly after she came to power in 1979, the Local Government, Planning and Land Act 1980 was enacted (“lug plaa” as we all called it) which paved the way for the creation of a new type of urban development corporations, including most notably the London Docklands Development Corporation, which was given wide planning and compulsory land acquisition powers, with the area also given enterprise status under the Act. Here is the rather quaint 26 April 1982 press release.

The Survey of London: Volumes 43 and 44, Poplar, Blackwall and Isle of Dogs gives this account:

“In order to provide substantial inducements for firms to move into Docklands, the Government, with effect from April 1982, designated much of the area centring around the West India and Millwall Docks as an Enterprise Zone, as provided for under the 1980 Local Government, Planning and Land Act, with the intention of encouraging and speeding up development. The boundary was carefully drawn to exclude those sites which had already been, or were in course of being, developed, such as Billingsgate Market (see plan C). (fn. 5) The chief financial concessions were: freedom from local rates for a ten-year period until 1992, no development land tax, and 100-percent capital allowance for new commercial and industrial buildings, to be set against corporation and income taxes. In December 1986 the Financial Times, in announcing the proposed relocation of its printing works to Docklands, calculated that the £20,850,000 cost of the site and building would be reduced to £15,400,000 by the tax concessions offered in the Enterprise Zone. (fn. 6)

In addition, there were simplified planning procedures: the zone was set up with an overall planning scheme, and any proposed development that conformed to that scheme was deemed to have been given planning consent, unless it was considered a particularly sensitive site and therefore specifically excluded from the general planning provision. (fn. 7) Similarly, development within the zone was normally free of ‘use class’ planning controls, so that a structure originally intended to be a factory or warehouse could be converted to office use during the course of construction, without requiring further permission.”

The House of Commons Library, research briefing Enterprise Zones (21 January 2020) is a useful summary of where we now are with enterprise zones. 38 Enterprise Zones were designated between 1981 and 1996. When the coalition government came to power in 2010 Chancellor George Osborne announced the creation of further EZs. As at 2020 there were, I think, 44 in England, in Scotland, 7 in Wales and 1 in Northern Ireland.

Again, no doubt additional EZs may be in prospect.

What of any of this in the Levelling-up and Regeneration Bill – and is it going to be given a Sunakian/Trussian polish in September? The Bill does already provide for locally-led urban development corporations, away from the previous 1980 Act centralised model (how truly local is local depends of course on the carrots and sticks deployed by the centre) but are we going to see any more ambitious/radical ideas come into play?

This has been an only-scratching-the-surface and leaving-you-to-join-the-dots sort of blog post. Even getting this far has taken me, on-screen at least, all around the world. I don’t have all the answers. Be wary of those, on all sides, who pretend that they do!

Simon Ricketts, 30 July 2022

Personal views, et cetera

Remitted Development: Sending Back Faulty Plans

What happens when a development plan, or one or more of its policies, is found to be unlawful? There have been two instances of this in 2020: in relation to the Leeds Site Allocations Plan (in the Aireborough case, the subject of three rulings by Lieven J between January and August this year) and in relation to the Harrogate Local Plan (in the Flaxby case, the subject of a ruling by Holgate J last week).

My firm acted for the claimant in both cases (alongside Jenny Wigley in Aireborough and Christopher Katkowski QC and Richard Moules in Flaxby). Aside from the substantive issues arising, the cases are interesting examples of the flexibility that the court has when it finds against the plan making authority. By virtue of the changes made to section 113 of the Planning and Compulsory Purchase 2004 by the Planning Act 2008, the court no longer simply has to quash the plan, or relevant part of the plan (meaning that the authority would need to start again) but can “remit” the plan back to an earlier stage in its preparation so that decisions can be taken again, from the stage where the errors occurred.

I set out the relevant sub-sections of Section 113 as follows:

(7) The High Court may—

(a) quash the relevant document;

(b) remit the relevant document to a person or body with a function relating to its preparation, publication, adoption or approval.

(7A) If the High Court remits the relevant document under subsection (7)(b) it may give directions as to the action to be taken in relation to the document.

(7B) Directions under subsection (7A) may in particular—

(a) require the relevant document to be treated (generally or for specified purposes) as not having been approved or adopted;

(b) require specified steps in the process that has resulted in the approval or adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken;

(c) require action to be taken by a person or body with a function relating to the preparation, publication, adoption or approval of the document (whether or not the person or body to which the document is remitted);

(d) require action to be taken by one person or body to depend on what action has been taken by another person or body.

(7C) The High Court’s powers under subsections (7) and (7A) are exercisable in relation to the relevant document—

(a) wholly or in part;

(b) generally or as it affects the property of the applicant.

Aireborough

There is a series of three judgments by Lieven J: Aireborough Neighbourhood Development Forum v Leeds City Council (Lieven J, 14 January 2020 – initial judgment on capacity of the claimant to bring the proceedings), Aireborough Neighbourhood Development Forum v Leeds City Council (Lieven J, 8 June 2020 – main ruling) and Aireborough Neighbourhood Development Forum v Leeds City Council (Lieven J, 7 August 2020 – remedies).

Judgment 1: Capacity of claimant

At an initial hearing Lieven J first considered arguments at by Leeds City Council and the two developer interested parties that as an unincorporated association the Aireborough Neighbourhood Development Forum did not have legal capacity to bring the claim. After a useful review of the caselaw on standing, the judge held that the Forum could indeed bring the claim: the “critical question in judicial review or statutory challenge is whether the claimant is a person aggrieved or has standing to challenge, which is not a test of legal capacity but rather one of sufficient interest in the decision not to be a mere busybody.”

Judgment 2: substantive issues

There was then the main hearing, which lasted two days.

The Site Allocations Plan (SAP) had initially been promoted on the basis of housing need evidence prepared in accordance with Leeds City Council’s 2014 core strategy. The significant level of housing need identified by the core strategy was used as the basis for exceptional circumstances justifying green belt releases. However, the housing need requirement was reduced during the course of the SAP examination based on changes to the government’s standard methodology for assessing housing need, and a much lower housing need requirement was therefore promoted the city council as part of a selective review of the core strategy (CSSR) being promoted at the same time as the SAP.

The city council proceeded with the adoption of the SAP, in accordance with the examining inspectors’ recommendation, notwithstanding the claimant’s submissions that the case for exceptional circumstances had been undermined given the lower housing need.

The claim was successful on three grounds. The judge found that the material change of circumstances had been insufficiently considered and its consequences insufficiently explained by the examining inspectors. This amounted to a failure to provide adequate reasons, which had been contended in two grounds of challenge. The inspectors also made an error of fact amounting to an error of law in calculating housing need figures.

The defendant was found also to have breached the Strategic Environment Assessment Regulations by failing to consider and consult upon a “reasonable alternative” to continuing with the SAP in materially changed circumstances. However, relief was not granted in respect of this ground of challenge because the failure was found not to have been likely to have resulted in a different outcome.

For a good perspective on the judgment, see Lichfields’ 16 June 2020 blog post Successful legal challenge to Leeds Site Allocations Plan – a consideration of potential implications.

Judgment 3: remedies

Following hand down of the main judgment Lieven J then needed to consider the parties’ written submissions as to the relief to be granted to give effect to her judgment: whether to quash all or part of the document or to remit it back to the city council or Secretary of State.

The dispute between the parties was as to the appropriate remedy under section 113 and the scope of any remedy, i.e. whether it should apply across the whole of Leeds rather than just the area for which the claimant was the neighbourhood development forum. Applying University of Bath v North Somerset Council (HHJ Alice Robinson, 7 March 2013), the judge determined that remittal was the appropriate remedy, as she held that it was appropriate to go back to the stage where the error of law occurred rather than back to the very beginning of the local plan process.

The judge also held that the scope of the remedy should be all Green Belt allocations in Leeds, rather than just those in Aireborough. Although the claim was focused on Aireborough, the claim was never limited to only those sites. The grounds of challenge went to the Green Belt allocations in their entirety. In the face of submissions from the Secretary of State, the allocations were remitted back to the inspectors and the judge indicated that it would be for the council to consider what modifications if any to make.

Flaxby

Flaxby Park Limited v Harrogate Borough Council (Holgate J, 25 November 2020) concerned the new settlements policy within the plan, which purported to identify a broad location for a new settlement within the borough, at Green Hammerton/Cattal. Flaxby Park Limited argued that that the council had not properly considered its alternative proposals.

The detailed chronology is set out at length in Holgate J’s judgment but in basic summary, the local plan inspector agreed with Flaxby that the council should carry out further sustainability appraisal to consider possible reasonable alternatives to the Green Hammerton/Cattal, including broad locations around Flaxby and other new settlement options.

The council carried out further work and consulted upon it, reported it and the consultation responses to the inspector who concluded that the plan was sound. The council then adopted the plan.

In summary, Flaxby’s complaints were partly as to the adequacy of the sustainability appraisal work and the extent to which it had been taken into account by the council, arguing that the council (1) had failed properly to consider the outcome of the assessment of alternative “broad locations” (and officers purported to carry out that consideration rather than the council itself) (2) had failed to compare the broad locations of Flaxby and Green Hammerton/Cattal on an equal basis because it did not include in the Additional sustainability appraisal work an additional 630 ha of land which had been identified by consultees and (3) had failed properly to examine viability and deliverability of the Green Hammerton/Cattal proposals.

The judge partly accepted the first complaint, in that, after an examination of the extent to which decisions in relation to the local plan process may lawfully be delegated, he found that “the full Council did not take into account the final SEA material and consultation responses, or a summary and analysis thereof, when they resolved to adopt the local plan”.

The judge has ordered that “the whole of Local Plan shall be remitted firstly, to the Defendant’s Cabinet to re-consider whether or not to accept the Inspector’s recommendations in so far as they related to the New Settlement Policies, and secondly, to the Defendant’s full Council to consider the Cabinet’s decision, whether or not to accept the Inspector’s recommendations in so far as they related to the New Settlement Policies, and whether or not to adopt the Local Plan with those policies.”

For completeness while we are talking about local plan challenges…

Earlier in the year, Holgate J rejected a challenge to the Wycombe local plan, in Keep Bourne End Green v Buckinghamshire Council (Holgate J, 23 July 2020).

This claim focused on the Local Plan’s Policy BE2 which, in operation with other parts of the plan, releases from the green belt a site of approximately 32 hectares of mainly agricultural land at Hollands Farm, south-east of High Wycombe, allocating the majority of the site for housing (some 467 dwellings).

The main grounds of challenge were first that Policy BE2 releasing the Site from the green belt was adopted on a basis of misunderstanding or misinterpretation of national policy (including the National Planning Policy Framework 2012 paragraphs 47 and 50) and guidance (including the 2014 Planning Practice Guidance) regarding published household projections, in part involving erroneous calculations of “objectively assessed housing need” (“OAHN”) for the local area. Second, that that Policy BE2 releasing the Site from the green belt was adopted on a basis of misapplication of national green belt policy requiring exceptional circumstances for release of land from green belt, in part as there were no exceptional circumstances.

Holgate J rejected all grounds of challenge. He stated that “it is important for the court to emphasise … that its role is not to consider the merits of the Council’s proposed policy or of the objections made to it. The court is only able to consider whether an error of law has been made in the decision or in the process leading up to it.”

On the first ground, Holgate J held that the local plan had been adopted following proper consideration of applicable published household projections, without errors of law, and with appropriate planning judgment being exercised by decision-makers. In doing so, he commented that “There have been many attempts in the last few years to entice the courts into making pronouncements on the methods used to assess OAHN. Repeatedly the response has been that this is a matter of planning judgment for the decision-maker and not for the courts.”

On the second ground, Holgate J held that, on the basis of there being no definition of the policy concept of “exceptional circumstances”, the expression “is deliberately broad and not susceptible to dictionary definition. The matter is left to the judgment of the decision-maker in all the circumstances of the case. Whether a factor is capable of being an exceptional circumstance may be a matter of law, as an issue of legal relevance. But whether it amounts to such a circumstance in any given case is a matter of planning judgment”. He held that the relevant decision-maker’s (an Inspector) reasons for finding “exceptional circumstances” do not “raise any substantial doubt as to whether a public law error was committed”; the “overall package of considerations upon which the Inspector relied was plainly capable of amounting to “exceptional circumstances” and could not be described as simply “commonplace”. It is impossible to say that the judgment which the Inspector reached was irrational. It did not fall outside the range of decisions which a reasonable Inspector could reach.”

The Court of Appeal this month refused the claimant permission to appeal.

Finally, there is my self-explanatory 6 December 2019 blog post Unsuccessful Attacks On Guildford & Waverley Local Plans.

Simon Ricketts, 28 November 2020

Personal views, et cetera

NB For parts of this post I drew upon my colleagues Town Library case summaries – free subscription to our weekly updating service here: https://www.townlegal.com/news-and-resources/#the-town-library .

The New Towns Question (Again)

Whilst we wait for this planning policy paper, the speculation rises. Old ideas get dusted down again, pitches are rolled.

The post-war new towns programme saw 27 UK new towns built by state-sponsored development corporations under the New Towns Act 1946 and later amending legislation. One of the conundrums that successive governments have grappled with over the last 40 years or so is how to create the conditions in which the private sector, rather than the state, can bring forward and deliver residential-led proposals at scale, whether in the form of new towns or urban extensions.

The jargon doesn’t help. We don’t seem to want to call it what it is, so an urban extension becomes a “sustainable urban extension”, which becomes a SUE. A new town presumably is a bit much for our sensitive modern ears, so to big up the environmental credentials, and to tip a hat to Ebenezer Howard, it becomes a new garden village, garden town or garden community (or, when the “eco-“ prefix became fashionable a decade or so ago, eco-town). The precise terminology is usually driven by the Government funding stream of the day, eg

⁃ The Eco-towns prospectus, July 2007 (“Eco-towns are a major opportunity for local authorities, house builders, developers and registered social landlords to come together to build small new towns. Eco-towns should be well designed, attractive places to live, with good services and facilities, and which connect well with the larger towns or cities close by. Uniquely, they offer an opportunity to design a whole town – business and services as well as homes – to achieve zero-carbon development, and to use this experience to help guide other developments across the country. The essential requirements we are looking for are:
(i) eco-towns must be new settlements, separate and distinct from existing towns but well linked to them. They need to be additional to existing plans, with a minimum target of 5,000 – 10,000 homes;”
(ii) the development as a whole should reach zero carbon standards, and each town should be an exemplar in at least one area of environmental sustainability;
(iii) eco-town proposals should provide for a good range of facilities within the town – a secondary school, a medium scale retail centre, good quality business space and leisure facilities;
(iv) affordable housing should make up between 30 and 50 per cent of the total through a wide range and distribution of tenures in mixed communities, with a particular emphasis on larger family homes;
(v) a management body which will help develop the town, provide support for people moving to the new community, for businesses and to co-ordinate delivery of services and manage facilities.”)

⁃ The Locally-Led Garden Villages, Towns and Cities prospectus, March 2016 (“Expressions of interest are sought by 31 July 2016 for “garden village” projects defined by the Government as developments of between 1,500 and 10,000 homes that meet specified criteria. Up to 12 proposals are to be supported. The list of information required has now been published. This follows DCLG’s March 2016 prospectus that covered both garden villages and garden towns/cities (10,000 homes plus). Key criteria include:

⁃ backing from the relevant local authorities

⁃ engagement with the local community

⁃ embedding of “garden city principles””) (see 17 June 2016 blog post How Does Your Garden Village Grow?)

⁃ the Garden Communities prospectus, August 2018 (“The Government “will prioritise proposals for new Garden Towns (more than 10,000 homes), but will consider proposals for Garden Villages (1,500-10,000 homes) which are particularly strong in other aspects. For instance, demonstrating exceptional quality or innovations, development on predominantly brownfield sites, being in an area of particularly high housing demand, or ability to expand substantially further in the future.”) (see my 24 August 2018 blog post Let A Million New Homes Bloom).

“New settlement” is probably the least value-laden term and that’s what I’ll use for the rest of this post.

One of the current hot topics, ahead of this planning policy paper which may go in an entirely different direction, has been whether the Nationally Significant Infrastructure Projects regime under the Planning Act 2008 should be extended so as include new settlements and other major residential-led projects.

In some ways, this wouldn’t be a huge leap.

After all, the system was extended by way of the Infrastructure Planning (Business or Commercial Projects) Regulations 2013, to allow the Secretary of State to designate business and commercial projects as NSIPs (with very limited take up – two projects as far as I know, neither of which yet the subject of a formal application, the London Resort theme park proposal and the International Advanced Manufacturing Park Two project).

It was extended again in April 2017, by way of section 160 of the Housing and Planning Act 2016, to allow NSIPs to include “related housing development” that has some special or functional connection with the particular infrastructure project, capped at around 500 homes (with no take up yet as far as I am aware).

At the time that the decision was made to allow business and commercial projects to use the NSIPs system, the idea of also allowing major residential development projects to be included was considered, but rejected:

“Planning for housing and the determination of planning applications for housing development is a primary role of local councils and the Government does not consider it appropriate to remove this responsibility from them. The Government has taken a number of steps to make clear the role of local councils in planning for housing including through the National Planning Policy Framework.

The Planning Act 2008 already bars dwellings from being consented as “associated development” alongside a nationally significant infrastructure project. The Growth and Infrastructure Act 2013 additionally sets out that the Government may not prescribe housing as a form of business and commercial development. [This of course preceded the 2017 change!]

Given the strong support for the exclusion of housing from the nationally significant infrastructure planning regime and the Government proposes to take no further action in this respect”.

(Major infrastructure planning: extending the regime to business and commercial projects: Summary of responses and government response (June 2013)).

The Government hangs on to the mantra that new settlements must be “locally-led” but isn’t this just an attempt to avoid being seen as directly responsible either for the consequences of its own target-setting or for properly underwriting on a longterm basis the costs of delivery? After all, why shouldn’t business and commercial projects be “locally led”, and how does call-in fit in?

Since 2018 we have had the wording in what is now paragraph 72 of the NPPF: “The supply of large numbers of new homes can often be best achieved through planning for larger scale development, such as new settlements or significant extensions to existing villages and towns, provided they are well located and designed, and supported by the necessary infrastructure and facilities. Working with the support of their communities, and with other authorities if appropriate, strategic policy-making authorities should identify suitable locations for such development where this can help to meet identified needs in a sustainable way.”

But is it really satisfactory for the Government to continue with the position that planning for housing is the role of local councils and that it is not going to remove that responsibility from them?

The Government has sought to address concerns that proposals of this scale may be difficult to deliver by way of the traditional Town and Country Planning Act 1990 regime, even if there is local support (big “if”). By way of the New Towns Act 1981 (Local Authority Oversight) Regulations 2018, it introduced an option for the procedures within the New Towns Act 1981 to be used by way of the creation of a “locally-led new town development corporation” at the application of the relevant local authority or locally authorities. MHCLG’s 2018 guidance document explains how the process is meant to work, although you will have to blow the dust off it – another process which I do not think has yet been used (and I place local development orders in a similar category – very little take up, and what there has been has not been in relation to new settlements).

So if no appetite for state-sponsored new settlements, no appetite for local authority sponsored new settlements under the 2018 Regulations and great difficulty with delivery through the traditional planning system (eg the West of England and North Essex Authorities plans, and more besides) – what else can be done to unlock the potential?

It is unsurprising that thoughts turn again to the NSIPs process.

Think tank (groan) the Social Market Foundation published a paper in June 2020 Unlocking Britain: Recovery and renewal after COVID-19 with a disparate series of proposals across various areas of policy. It is curious that in relation to planning, the paper’s big idea is to greatly expand the use of the NSIPs process:

““Here are the simple legislative steps we need to take to achieve this, and it can all be done by changes to the Planning Act:

A. Remove the need for DCOs to be made in accordance with an NPS – this won’t work for projects that are not of national significance, and some NPS do not exist, or are out of date anyway;

B. Shorten the time period required for public examination to four months (rather than six months as currently) because we would be dealing with smaller projects;

C. Reduce the time for the planning inspector and the Secretary of State (separately) to make their decisions under this process from three months to two months;

D. Limit the ability for the Secretaries of State to extend the time period they have for final decision–making (currently three months, hopefully changing to two months as per the above) to only being for special circumstances, such as national security or a national emergency.

When considering the changes (A) to (D) above, these mirror the provisions within the Planning Act that already exist for “material amendment” to DCOs – so there is an existing legislative precedent for this accelerated procedure.

Overall, this will mean that infrastructure projects, or housing developments of more than 1,000 homes, can be delivered with a high degree of certainty of success, within 12 months of the plan being submitted.”

So the idea of residential-led NSIPs for schemes of 1,000 homes or more. I’m really not sure that such centralisation of decision making in relation to so many projects is remotely practical, let alone desirable (whether for promoters, local authorities or communities.

There is a great critique of the proposal in Lichfields’ blog post Following Orders: five actions necessary for DCOs and the NSIP regime to be used for large-scale housing (Matthew Spry and Nicki Mableson, 7 July 2020). Matthew and Nicki don’t leap to conclusions but examine:

⁃ What’s the problem for large scale housing projects?

⁃ How could DCOs help and what are the barriers?

⁃ What is needed to make a housing DCO regime effective?

They conclude that the potential is there, probably for schemes of more than 5,000 homes, but identify that action would be needed in at least five key areas, including the way that “need” and “location” are to be identified.

The post was published the same day as I was chairing a webinar discussion on exactly the same set of issues (panellists John Rhodes OBE (director, Quod), Bridget Rosewell CBE (Commissioner, National Infrastructure Commission), Gordon Adams (Battersea Power Station), Kathryn Ventham (partner, Barton Willmore) and Michael Humphries QC (Francis Taylor Building)). If you would like a link to a recording of the session please let me know.

Later in the week, a further much more detailed research document was published: Can development consent orders help meet the challenges of our time? by Barton Willmore, Womble Bond Dickinson, the Copper Consultancy. I recommend the document. It is written by people with practical experience of the subject and is based on solid survey work. It is everything that a think tank report is not.

Its recommendations:

“We also think that there are benefits to be gained from applying DCO principles to existing planning mechanisms as well as developing a DCO option for delivery of new settlements.

We therefore believe the Government and industry should look to explore the extension of the DCO process for new settlements and other complex developments by preparing a National Settlements Strategy (NSS) that:

• Identifies broad parts of the country suitable for new settlements/largescale developments (developed under DCO (and NPS) engagement principles with input from Local Authorities and devolved administrations);

• Enables different consenting and delivery models to be applied;

• Incorporates the DCO as a consenting model;

• Is drafted to provide the national needs case that gives certainty, to unlock significant financial investment from the UK and internationally; and,

• Is equivalent to the National Policy Statements.”

They conclude:

“In preparing a National Settlement Strategy we need to acknowledge up front that there will be some challenging issues, not least around managing engagement and Strategic Environmental Assessments. Equally, a DCO option for new settlements may look very different to a DCO for more established infrastructure projects. Therefore, we would welcome your views on some or all of the following questions, along with any wider reflections you have on this research:

1. How can a national settlements strategy be prepared in a way that engages regions and local communities alongside national infrastructure providers to create long term stability?

2. Which planning processes can benefit from applying the certainty principles established by the DCO process and how?

3. What could a DCO option for delivering new settlements look like in practice?

We will take these responses forward, along with our own thinking, into a second phase of work on how to make our recommendations a practical reality.”

Now that’s what I call a planning policy paper! We may see later this month whether these ideas are at all taking root.

Simon Ricketts, 11 July 2020

Personal views, et cetera

PS I got quite nostalgic thinking about failings of the eco-towns programme, having acted for the Bard Campaign in Bard Campaign v Secretary of State (Walker J, 25 February 2009). What a counsel team we had – Ian Dove QC (now Dove J), Chris Young (now QC) and Richard Harwood (now QC). This was a challenge to the Government’s April 2008 “consultation” document, “Eco-towns – Living a Greener Future”.

We basically challenged everything about it. Our case was that:

“In breach of the common law relating to consultation, the SEA Directive, the Aarhus Convention and the Code of Practice on Consultation, the Secretary of State has failed:
1. to consult on the principle of constructing eco-towns, alternatively any such consultation has to give sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response;

2. to consult on the key locational criteria for eco-towns;

3. to consult at all on the 42 locations proposed which were rejected by ministers in favour of the 15 proposed locations;

4. to provide adequate information to enable informed representations to be made. Instead, information has been produced late, has dribbled out in response to requests and some relevant (and non-confidential) material is still being withheld from the public;

5. to provide adequate time for consultation, given the late production of material.

Additionally,
6. a declaration is sought (because this still appears to be in issue) that the Eco-Towns policies are subject to the requirements of the Strategic Environmental Assessment Directive and Regulations.”

We lost on all grounds and Keene LJ refused us permission to appeal to the Court of Appeal. But the programme was abandoned in the run up to the 2010 general election. It’s often not the law that gets in the way – it’s politics.

More Plans Grounded: West Of England; Sevenoaks; London

My 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism commented on the previous Secretary of State’s 18 June 2019 letter to PINS, which stressed the need for pragmatism on the part of local plan inspectors.

MHCLG must be careful not to shoot the messenger. Inspectors are continuing to point out basic flaws in plans which, in most cases, have been pretty clear to the planning community for some time. Aside from the passive aggressive approach of that letter, which I hope will not be supported by the new Secretary of State, inspectors are also facing increasing hostility from some local political leaders.

West of England joint spatial strategy

I referred in my 17 August blog Gestation Of An Elephant: Plan Making to the inspectors’ letter dated 1 August 2019, which was provisionally recommending withdrawal of the West of England joint spatial strategy. Since then the inspectors have set out their detailed reasoning in a subsequent letter dated 11 September 2019 which focuses on the “key points which have led us to conclude that there are very substantial soundness problems with the plan.”

The plan had identified that 17,000 dwellings needed to be provided at 12 “strategic development locations”. The inspectors pointed out that despite the fact that the plan comprised two housing market areas and despite evidence as to various local housing needs, “no requirement figures (either precise or indicative) have been considered or identified for any individual settlements, for each local authority area or for any other sub- area of the West of England as a whole. Thus, we understand that the SDLs were selected on the basic presumption that any candidate SDL anywhere within the plan area could meet the plan area’s housing needs just as well as any other candidate.” There was no robust assessment of reasonable alternatives.

“[We] conclude that robust evidence has not been provided to demonstrate that the 12 SDLs proposed in the plan have been selected against reasonable alternatives on a robust, consistent and objective basis. Consequently, given that the SDLs are an integral part of the plan’s spatial strategy, we cannot conclude that the spatial strategy is itself sound. Additionally, the absence of a robust SDL selection process or a strategy which is not based on specific SDLs means that there is not a clear basis on which to select alternative/additional SDLs (either in a review of the JSP or in local plans) should this be necessary if one were to “fall away” (eg because of deliverability problems) or if the quantum of development needs were to change over time.”

The inspectors plainly were aware of that need for “pragmatism” (indeed the advice is acknowledged paragraph 49 as a matter to which they attached “great weight”). They say this:

“We first set out our concerns about the spatial strategy and the SDL selection process in June 2018, a few weeks into the examination. In the spirit of pragmatism and recognising the desirability of getting a sound plan in place, we gave you the opportunity to prepare a considerable amount of further evidence in an attempt to address these concerns. Unfortunately, this has not been successful and for the reasons detailed above our concerns remain and, indeed, have deepened. In the light of this we consider that any further work to simply re-justify the selection of SDLs included in the plan or any change in the way the existing strategy is merely articulated in the JSP, could not now be considered to be anything other than retrospective justification of the plan. Consequently, it would be very unlikely to persuade us that the SDLs, and thus the spatial strategy overall, were selected on a robust, consistent and objective basis.”

The approach to SDLs was not the only issue. The inspectors also set out their concerns as to:

⁃ “the approach to, and policy steer on, the purpose, amount and distribution of non-strategic growth; and

⁃ the plan’s proposals for overall employment land provision if, as we believe is likely, we were to conclude that policy 4 is not sound, including proposals for, or the policy steer on, growth at Bristol Port and Bristol Airport if, as we believe is likely, we were to conclude that the plan is not currently sound in these particular respects.”

Furthermore:

“Additionally, if we were to conclude that the contended OAN of 102,800 is significantly underestimated, there would be a need to provide for a significantly higher objective-assessed need for housing in the plan.

Moreover, each of these elements cannot be considered in isolation, as the preferred and justified approach in relation to one is likely to impact on at least some of the others. Furthermore, there would need to be robust justification that there are exceptional circumstances to justify any proposed alterations of the Green Belt boundary for housing or any other purposes. It is also very likely that key policy decisions would need to be taken in respect of most or all of these elements of the plan.”

Finally, there is recognition of the confusion caused to local communities by endless stages of re-consultation in relation to flawed plans:

“At the hearings we heard from a number of examination participants who were already confused by the processes of, and multiple rounds of consultation undertaken in, getting the plan to this stage. This was particularly so given the parallel processes of developing and consulting on the emerging local plans for each authority and the Joint Local Transport Plan 4. Continuing with the examination along the, undesirable, lines detailed above would also be likely to be more complicated in consultation and public participation terms than returning to the plan preparation stage, thus potentially hindering the community’s ability to comment on and influence the plan.

Consequently, whilst we recognise that the Councils’ preference might be to continue with the examination if at all possible and, although we will not reach a final decision on the way forward until we have had the opportunity to consider the Councils’ response to this letter, we remain of the view that withdrawal of the plan from examination is likely to be the most appropriate option.”

Sevenoaks district local plan

The Sevenoaks plan is another one that has pretty much crash-landed on take off. The hearing sessions started on 24 September 2019. On 17 October 2019, the inspector wrote a one and a half page letter to the council to indicate that she has “significant concerns about a number of aspects of the Plan, both in terms of legal compliance and soundness.”

She states:

“My main concern relates to the lack of constructive engagement with neighbouring authorities to resolve the issue of unmet housing need and the absence of strategic cross boundary planning to examine how the identified needs could be accommodated. Indeed, the Council did not formally ask neighbouring authorities if they were in a position to address its unmet housing need until just before the Local Plan was submitted for Examination. I am not satisfied, therefore, that the Council has addressed this key strategic matter through effective joint working, but has rather deferred it to subsequent Plan updates. This is evidenced by the ‘actions’ set out in the Statements of Common Ground with neighbouring authorities submitted to the Examination. I consider this to be a significant failure in the Council’s Duty to Co-operate. Any failure of the Duty to Co-operate cannot be rectified during the Examination and therefore the only option is for a Report recommending non-adoption to be issued or for the Plan to be withdrawn from Examination.

Furthermore, I have significant concerns about the soundness of the Plan in respect of a number of areas including the approach to Sustainability Appraisal, the chosen Strategy for Growth, the assessment of the Green Belt and housing supply and distribution.”

What is no doubt frustrating to the council, aside from the very visible and expensive failure, which will have significant practical consequences not just for the district but for plan-making by nearby authorities, is the lack at present of more detailed reasoning. A more detailed letter is promised. However, surely nothing excuses the council’s intemperate response, which is hardly likely to assist a positive outcome. The council’s disappointment is clear enough from its formal response dated 21 October 2019:

“The Inspector’s initial conclusions are at odds with the independent advice that the Council received in advance of submission, including our discussions with the Government’s own Planning Advisory Service (PAS), the opinion of a QC and industry experts – including former senior Planning Inspectors. This extensive peer review was undertaken in good faith, to inform the examination process and avoid the circumstances that we now appear to find ourselves in.”

However, surely comments attributed to the council’s leader in its press statement issued the same day are inexcusable, for instance:

“To call into question an evidence-led approach comes to the root of our concerns with the actions of the Inspector. If we are not to follow the evidence to make our Plan then the Government may just as well dictate how many homes an area should have and then pick sites, we need to put an end to the thinly veiled charade that local plans are in any way locally led.

“But the most damning comment has to be left for the Inspector’s approach to publish her brief note before allowing the Council to either see her full reasoning or have a chance to respond. This suggests her mind is far from open and she and her masters have made their minds up.

“Sevenoaks District Council will stand up for its residents and the District’s environment against what we believe is a huge abuse of the process by the Planning Inspectorate and the Government department responsible. We will not allow them to run roughshod over the huge weight of evidence we have amassed, community views we have collated and the few powers we have left as a planning authority.”

London Plan 2019

We finally have the inspectors’ report into the London Plan, together with their detailed recommendations.

I set out the peculiar legal framework that applies to the London Plan in my 23 April 2017 blog post Make No Little Plans: The London Plan. An additional peculiarity is that the Mayor of course does not have to accept the inspectors’ recommendations. If he does not intend to accept the recommendations, he has to send the Secretary of State a statement of his reasons (see regulation 9 of the The Town and Country Planning (London Spatial Development Strategy) Regulations 2000) and the Secretary of State has the power to direct that modifications to the plan be made “if it appears to the Secretary of State that it is expedient to do so for the purpose of avoiding (a) any inconsistency with current national policies …, or (b) any detriment to the interests of an area outside Greater London” (see section 337 of the Greater London Authority Act 1999).

London First’s Sarah Bevan, who played a crucial role at the examination, representing the interests of London First members, has prepared a good summary of the inspectors’ findings.

The inspectors conclude that subject to recommended modifications the plan meets the tests of soundness and provides an appropriate basis for the strategic planning of Greater London. However, some of the conclusions and recommended modifications will not have made welcome reading for the Mayor and his team, for instance in relation to:

Viability

The inspectors identify that the viability assessment work underpinning the plan is broadly acceptable but has shortcomings, particularly in relation to specialist housing for the elderly and purpose built student accommodation, and the assumptions about the redevelopment of sites with currently operating supermarkets. The inspectors are not persuaded that “these forms of development would be viable if they are required to meet all of the policy requirements in the Plan”. (paragraphs 80 and 81).

“To be effective in London, the approach to viability at the planning application stage set out in current national policy and guidance will require consideration of the viability evidence supporting both the London Plan but also the relevant local plan. In other words, it is only where there is an up to date local plan in place supported by appropriate viability evidence, that we would expect full weight to be given to the assumption that planning applications that fully comply with all relevant development plan policies are viable.” (paragraph 24).

Small sites strategy realism and overall housing target

The inspectors recommend that the overall housing target should be reduced due to given that the target for what can be achieved from small sites is “aspirational” and “not realistic”. “In some cases the imposition of such large increases in this element of the target is heavy-handed and not helped by the lack of detailed engagement with the boroughs in deciding the small site capacity methodology. As some suggested a more nuanced approach might have borne fruit.” (paragraph 165).

Green belt

The inspectors’ “inescapable conclusion…that if London’s development needs are to be met in future then a review of the Green Belt should be undertaken to at least establish any potential for sustainable development. Therefore we recommend that this Plan include a commitment to a Green Belt review [PR35]. This would best be done as part of the next London Plan. Given its strategic nature and to ensure consistency the review should be led by the Mayor and should involve joint working with authorities around the administrative boundary as well as the boroughs. This would form the basis for the Mayor to consider Green Belt release as a means to deliver housing and industrial development that cannot be accommodated in the existing built up area or in adjoining areas.” (paragraph 457).

The inspectors also recommend amending the policies that preclude boroughs reviewing green belt boundaries applying the “exceptional circumstances” test and that seek refusal for development proposals that would cause harm to the green belt without reference to the “very special circumstances” test.

Airports, fracking

The inspectors identify policies, such as those in relation to Heathrow and other airports and in relation to fracking, which are inconsistent with national policy or in relation to which there is insufficient justification.

So what stance will the Mayor take towards these recommendations? There has been a certain scepticism on the part of many potential participants in the process, borne of what has happened with previous versions of the plan, that, no matter what the recommendations, those which are unpalatable to the Mayor will not be accepted.

Particularly with the Mayoral election process looming, it is perhaps unsurprising that this is how it may well play out. He has already come out with some pretty hostile comments, reported in a Guardian piece on 21 October 2019: Sadiq Khan to fight government attempt to water down green policies.

The prospects of a new adopted London plan before the 7 May 2020 Mayoral election appear to be fading fast, although it will be interesting to see the extent to which the existing ministerial team at MHCLG are prepared to stand up for the inspectors’ green belt approach.

The inspectors’ conclusions will also have implications for authorities outside London, in the rest of the south east, many of which are green belt authorities already failing to plan to meet local housing needs:

“If London cannot accommodate all of its development needs, the most significant strategic issue facing the wider South East for the coming decades will be how and where to accommodate that growth outside London in a way that will contribute towards achieving sustainable development. Many representors, with a wide variety of interests, have argued that this could and should be achieved. However, it is clear from past experience and evidence about increasing development pressures that areas in the wider South East outside London already face, that there are no easy solutions or clearly identified potential growth locations. Furthermore, it is apparent from the representatives from the South East England Councils, East of England Local Government Association and individual local authorities outside London that there is limited appetite to consider the possibility of accommodating significant amounts of additional development associated with the growth of London.” (paragraph 111)

Much as every politician tries to avoid the very subject, isn’t green belt the underlying theme of this entire blog post?

Simon Ricketts, 26 October 2019

Personal views, et cetera

Let A Million New Homes Bloom

It is financially, legally and politically challenging to deliver new communities but without them the gap will continue to widen as between the quantity – and quality – of homes that the country needs and those that are built.

Credit should be given to the Government for continuing to push. Are its efforts too diffuse and/or insufficiently strategic, in terms of being within a clear framework, or is it simply being pragmatic in encouraging locally-supported proposals without specifying locations or indeed the process for delivery? That is for others to judge but this blog post is intended to serve as a reminder of where we stand by way of ministerial statements, and particularly focuses on where we are with the Cambridge-Milton Keynes-Oxford arc.

NPPF

The July 2018 NPPF continues, by way of paragraph 72, to support locally-led new settlements, with a change from the March 2018 draft in the reintroduction of the reference from the 2012 NPPF to garden city principles:

“The supply of large numbers of new homes can often be best achieved through planning for larger scale development, such as new settlements or significant extensions to existing villages and towns, provided they are well located and designed, and supported by the necessary infrastructure and facilities. Working with the support of their communities, and with other authorities if appropriate, strategic policy-making authorities should identify suitable locations for such development where this can help to meet identified needs in a sustainable way. In doing so, they should:

a) consider the opportunities presented by existing or planned investment in infrastructure, the area’s economic potential and the scope for net environmental gains;

b) ensure that their size and location will support a sustainable community, with sufficient access to services and employment opportunities within the development itself (without expecting an unrealistic level of self-containment), or in larger towns to which there is good access;

c) set clear expectations for the quality of the development and how this can be maintained (such as by following Garden City principles), and ensure that a variety of homes to meet the needs of different groups in the community will be provided;

d) make a realistic assessment of likely rates of delivery, given the lead-in times for large scale sites, and identify opportunities for supporting rapid implementation (such as through joint ventures or locally-led development corporations); and

e) consider whether it is appropriate to establish Green Belt around or adjoining new developments of significant size.”

Garden Communities Prospectus

MHCLG published on 15 August 2018 its Garden Communities prospectus, inviting “bids for ambitious, locally supported, proposals for new garden communities at scale. In return for tailored assistance to help design and deliver the vision for these places, we expect local areas to deliver significant housing and economic growth. We will look to assist as many as we can, in locations where there is sufficient demand for housing.”

Bids are due by 9 November 2018. The prospectus sets out the necessary criteria as follows:

Scale

The Government “will prioritise proposals for new Garden Towns (more than 10,000 homes), but will consider proposals for Garden Villages (1,500-10,000 homes) which are particularly strong in other aspects. For instance, demonstrating exceptional quality or innovations, development on predominantly brownfield sites, being in an area of particularly high housing demand, or ability to expand substantially further in the future.”

Strategic fit

“All proposals must demonstrate how the new garden community fits with the housing need for the housing market area, including expected future population growth. We will prioritise proposals which respond to housing need in high demand areas. We also particularly welcome proposals which release more land through local plans to meet local housing need, and / or go above local housing need.

All proposals should demonstrate how the new garden community fits with wider strategies to support economic growth and increase productivity. We expect to see ambitious proposals which create a variety of new jobs and the timely delivery of infrastructure necessary to underpin this.”

Locally-led

“Strong local leadership is crucial to developing and delivering a long-term vision for these new communities. All proposals should have the backing of the local authorities in which they are situated, including the county council in two-tier areas. We are particularly interested in proposals which demonstrate collaboration across local authority boundaries. To ensure that the potential local growth benefits have been considered, it will be desirable for proposals to have the support of the Local Enterprise Partnership, where the area has one.

Proposals should set out how the local community is being, or will be, engaged and involved at an early stage, and strategies for continued community engagement and involvement. We are clear that local communities – both current and future residents – must have a meaningful say in developing the proposal from design to delivery.”

Garden community qualities

“High quality place-making is what makes garden communities exemplars of large new developments, and all proposals must set out a clear vision for the quality of the community and how this can be maintained in the long-term, for instance by following Garden City principles.”

Deliverability and viability

Proposals should address:

⁃ delivery models and timescales

⁃ infrastructure requirements

⁃ opportunities to capture land value

⁃ access to finance and private sector investment

(NB this post is not intended to be an update to my 20 May 2017 blog post Money For Nothing? CPO Compensation Reform, Land Value Capture. However, I would note first the specific advice in the new NPPF that local planning authorities’ role in identifying and helping to bring forward land for development should “include identifying opportunities to facilitate land assembly, supported where necessary by compulsory purchase powers, where this can help to bring more land forward for meeting development needs and/or secure better development outcomes” and secondly the open letter, Sharing land value with communities dated 20 August 2018 from 16 campaign groups to the Secretary of State, which included the request that Parliament “should reform the 1961 Land Compensation Act to clarify that local authorities should be able to compulsorily purchase land at fair market value that does not include prospective planning permission, rather than speculative “hope” value.” It is interesting to see the broadness of consensus between a variety of organisations but these issues are not at all straight-forward! More in due course.)

Delivery timescales and accelerated delivery

“We will prioritise proposals that offer a strong prospect of early delivery and a significant acceleration of housing delivery. They should consider the scope for innovative ways to deliver new homes, such as off-site construction, custom build and self-build, as well as providing opportunities for a diverse range of house builders. Priority will be given to proposals that can demonstrate how build out will be achieved at pace, whilst maintaining quality.”

In terms of delivery vehicles, the prospectus says this:

“Whilst we are not prescribing any particular model, for proposals at scale, a Development Corporation may be an appropriate vehicle to consider. We have taken action to enable the creation of new locally accountable New Town Development Corporations. These vehicles can help provide long-term certainty to private investors, resolve complex co-ordination challenges, invest directly in infrastructure that unlocks development, and use compulsory purchase powers to help lay out a new town.”

(The reference to “new locally accountable New Town Development Corporations” is a reference to the new mechanism available for designating new towns by way of the New Towns Act 1981 (Local Authority Oversight) Regulations 2018 which were made and came into force on 23 July 2018. Guidance as to their operation was published in June 2018.)

Who can apply?

The support of the relevant local planning authority or authorities is a prerequisite:

“Proposals are invited from local authorities and private sector partners (such as master developers or land owners). Proposals submitted by private sector partners must be expressly supported by the local authority.

We particularly welcome joint proposals from one or more local authorities, as well as proposals which demonstrate support from developers and / or landowners.”

Cambridge-Milton Keynes-Oxford corridor

There is specific paragraph in relation to the CaMKOx corridor (or whatever we are meant to call it):

“For proposals within the Cambridge – Milton Keynes – Oxford corridor, Government will continue to work with local partners to consider how the delivery of new homes and settlements can best support the overarching vision for the axis. This includes the contribution these places can make to the National Infrastructure Commission’s finding that up to 1 million homes will need to be built in the corridor by 2050, if the area is to maximise its economic potential.”

CaMKOx

There are a number of related Government-sponsored initiatives in relation to the Cambridge-Milton Keynes-Oxford corridor.

The Government published in November 2017 its vision for the corridor, Helping the Cambridge, Milton Keynes and Oxford corridor reach its potential, alongside the Autumn budget and the National Infrastructure Commission’s report Partnering for Prosperity: A new deal for the Cambridge- Milton Keynes-Oxford Arc. The NIC report sets out its conclusion that:

“The Cambridge-Milton Keynes-Oxford arc must be a national priority. Its world-class research, innovation and technology can help the UK prosper in a changing global economy. But success cannot be taken for granted. Without urgent action, a chronic undersupply of homes could jeopardise growth, limit access to labour and put prosperity at risk.

The Commission’s central finding is that rates of house building will need to double if the arc is to achieve its economic potential. This requires a new deal between central and local government – one which aligns public and private interests behind the delivery of significant east-west infrastructure and major new settlements, and which seeks commitment to faster growth through a joined-up plan for jobs, homes and infrastructure. Any deal must give local areas the certainty, freedoms and resources they need to create well-designed, well-connected new communities.”

Two significant transport infrastructure projects were seen by the NIC as critical to unlocking development: the East West Rail scheme connecting Oxford and Cambridge by rail and the Oxford-Cambridge Expressway road proposal. But the report also makes important recommendations as to necessary governance, seeking

• “New powers giving councils greater certainty over future investments, and allowing them to fund and raise finance for major infrastructure improvements that deliver new homes

• A jointly agreed plan for new and expanded housing settlements, supported by New Town Development Corporations and new infrastructure design panels

• New statutory spatial plans and investment strategies for each sub-region should be developed, as part of a 50-year vision for the arc as a whole”

The Government’s vision states:

“1.7 The government welcomes the NIC’s finding that up to 1 million homes will need to be built in the corridor by 2050, if the area is to maximise its economic potential.

1.8 The government has agreed a housing deal with Oxfordshire, committing to a target of 100,000 homes in the county by 2031 in return for a package of support for infrastructure and economic growth, which could include supporting the growth of employment sites across the county such as Science Vale, one of the most successful science and technology clusters in the UK. This rate of housing delivery would be consistent with a corridor-wide ambition for 1 million new homes by 2050.

1.9 The government pledges to build on the Oxfordshire deal by working with the central and eastern parts of the corridor in 2018, to realise its housing ambitions.

1.10 As the NIC has recommended, the government will also consider opportunities for one or more major new settlements in the corridor. It will do so by bringing together public and private capital to build new locally-proposed garden towns, using appropriate delivery vehicles such as development corporations. The government will work closely with the Homes and Communities Agency and local partners to explore such opportunities further.”

In terms of governance:

“1.15 The government invites local partners to work with it through 2018 to agree a long term vision for the whole corridor up to 2050. This will set out how jobs, homes and infrastructure across the corridor will be planned together to benefit existing and new residents, while balancing economic growth with the protection and enhancement of the area’s historic and environmental assets.

1.16 The government believes this long-term vision should be underpinned by a series of joint statutory plans across the corridor which would deliver the vision through the planning system. As a first step, Oxfordshire has agreed, through its housing deal with government, to bring forward for adoption a joint statutory plan across the whole county. The government urges other areas in the corridor to propose how they will work together with a view to adopting a small number of joint statutory plans at the earliest opportunity to ensure that planning for business and housing is coordinated with the delivery of strategic and local infrastructure.”

In terms of capturing increases in land value:

“1.18 The government will be consulting on changes to the mechanisms currently available to local authorities (the Community Infrastructure Levy (CIL) and Section 106 agreements) to make them easier to use and more flexible. This will enable local authorities to capture land value uplift taking place in the corridor more effectively. For example, the government will consult on changes to CIL that would make it easier for authorities to capture land value increases around new railway stations.

1.19 As a starting point, the government expects authorities and delivery bodies in the Cambridge – Milton Keynes – Oxford corridor to use existing mechanisms of land value capture, and the potential new mechanisms announced at Autumn Budget 2017 (subject to consultation) to capture rising land values from the additional public investment in a fair way, having regard to the announcements made at Budget 2017.

1.20 The government will also encourage authorities to explore the introduction of a Strategic Infrastructure Tariff, in addition to CIL, supported by appropriate governance arrangements. These approaches will require developers to baseline their contribution towards infrastructure into the values they pay for land.”

East West Rail

Network Rail made an application to the Secretary of State for Transport for a Transport and Works Act Order in relation to phase 2 of its East West Rail scheme on 27 July 2018, which is the central section of the line, including track and signalling upgrades between Bicester, Bedford, Aylesbury and Milton Keynes, including the reinstatement of a ‘mothballed’ section of railway between Bletchley and Claydon Junction. The deadline for representations is 7 September 2018. Phase 1, the western section between Oxford and Bicester, is already complete.

Oxford-Cambridge Expressway

Highways England is expected to announce its preferred route for the Oxford-Cambridge Expressway this Autumn. The three potential corridors are:

– Option A – southern, via Aylesbury, linking to the M1 south of Milton Keynes

– Option B – central, following the east-west rail corridor

– Option C – northern, roughly following the existing A421 to the south of Bicester and via Buckingham to the east of Milton Keynes

The local authorities and communities affected of course all have differing views as to the route that should be selected. A critical (you might guess from its title) piece about the project by George Monbiot, This disastrous new project will change the face of Britain, yet no debate is allowed was published by the Guardian on 22 August 2018. The scheme will be promoted in due course as a Nationally Significant Infrastructure Project. Given that the selected route will not be the subject of a Planning Act 2008 national policy statement it is inaccurate to suggest that “no debate is allowed“, although of course, as with other elements of the planning for CaMKOx, it has been iterative, without any form of Government framework that might be argued to require strategic environmental assessment.

Given the 9 November 2018 deadline for bids in the Garden Communities Prospectus, it is curious to note that Planning minister Kit Malthouse wrote to local authorities across the Cambridge-Milton Keynes-Oxford corridor on 26 July 2018, inviting them “to bring forward ambitious proposals for transformational housing growth, including new settlements” with a much earlier deadline of 14 September 2018:

“The National Infrastructure Commission has stated that realising its full potential as a world class economic hub would require delivery of up to 1 million new homes here by 2050. The Government welcomes this ambition. Last year, we set out a significant programme of investment in infrastructure, housing and business to support it.

Realising the ambition of 1 million homes here will require additional action from central and local partners. This action includes Government’s planning reforms, our national programmes such as the Housing Infrastructure Fund, the forthcoming national prospectus inviting proposals for locally-led new garden communities, and further work to understand the potential for housing growth across the corridor.

Government will also soon begin detailed analysis to explore potential locations for new settlements across the corridor, their alignment with transport infrastructure, and any environmental considerations.”

The precise choreography as between these calls for proposals, a decision as to the final route the Oxford-Cambridge Expressway (which in itself will be relevant to the identification of potential sites) and what local planning authorities should be doing in the meantime in relation to their emerging and submitted plans is also causing some concern within affected local authorities, if the letter dated 14 August 2018 from the leader of Vale of White Horse District Council, in response to the Malthouse letter, is anything to go by. And is the one million homes in addition to authorities’ current growth proposals?

In promoting what will be significant change for many in the Cambridge-Milton Keynes-Oxford arc and what will be of vital importance to the country as a whole (in terms of the potential that is there to be unlocked in terms of homes and economic growth) the Government is treading a fine line. Its strategy appears to be not to go down the route of one set-piece consultation document (along the lines of the much maligned HS2 white paper) but rather to promote (without the commitments to a fast-track through the planning system that were so controversial in relation to the ecotowns programme) a range of interventions, some ostensibly voluntary (hold up your hands if your authority wants growth – against the backdrop of likely combined authorities and joint plans), some inevitably less so.

Will local planning authorities and communities rise to the challenge? The notion of new community NSIPs appears to remain off the table, probably for good reason given the practical good sense in successful proposals being locally driven. But what if that one million homes figure is simply unachievable on a locally led basis?

Simon Ricketts, 24 August 2018

Personal views, et cetera

How Does Your Garden Village Grow?

It is encouraging to see the practical encouragement that the Government is giving for local authorities and promoters jointly to bring forward high quality proposals for new communities.

Expressions of interest are sought by 31 July 2016 for “garden village” projects defined by the Government as developments of between 1,500 and 10,000 homes that meet specified criteria. Up to 12 proposals are to be supported. The list of information required has now been published.

This follows DCLG’s March 2016 prospectus that covered both garden villages and garden towns/cities (10,000 homes plus).

Key criteria include:
– backing from the relevant local authorities

– engagement with the local community

– embedding of “garden city principles” (how strictly, one wonders, given the lack of many developments to adhere to all of those principles articulated by the TCPA.

The prize for selected applicants is a package of government support that could include:

– delivery enabling funding (ie funding for the local authority for staff or consultancy work)

– support from ATLAS

– “brokerage across government” to unblock cross-departmental issues

– access to government housing funding streams (eg the starter homes fund and affordable housing funding)

– “financial flexibilities” to improve viability and cashflow (TIF-type mechanisms perhaps?)

– planning freedoms (presumably eg the potential to be a “planning freedom zone” under section 154 of the Housing and Planning Act 2016)

– dedicated delivery vehicles (eg public-private sector JVs or even development corporations, made easier to create by sections 166 and 167 of the Housing and Planning Act 2016).

The Government has learned from the failings of the previous eco-towns initiative, where schemes that were selected achieved an unfair policy advantage, short-circuiting the then regional planning process, and failed to live up to promises made to promoters and the public alike as to consultation and assessment processes. Whilst the legal challenge to the lawfulness of that process failed (the Bard Campaign v Secretary of State for Communities and Local Government [2009] EWHC 308 (Admin), public unpopularity ran the process into touch in the lead up to the 2010 General Election.

Instead, this time round there is no explicit shortcut through the planning process – expressions of interest must set out how the proposed garden village fits with the “strategic growth plans for the area”.

Alongside the prospectus, the Government has been refining its policy stance on new settlements, in DCLG’s December 2015 consultation paper on proposed changes to national planning policy.

The NPPF currently says this:
“52. The supply of new homes can sometimes be best achieved through planning for larger scale development, such as new settlements or extensions to existing villages and towns that follow the principles of Garden Cities. Working with the support of their communities, local planning authorities should consider whether such opportunities provide the best way of achieving sustainable development. In doing so, they should consider whether it is appropriate to establish Green Belt around or adjoining any such new development”
The consultation paper proposes the following:
“20. We propose to strengthen national planning policy to provide a more supportive approach for new settlements, within locally led plans. We consider that local planning authorities should take a proactive approach to planning for new settlements where they can meet the sustainable development objectives of national policy, including taking account of the need to provide an adequate supply of new homes. In doing so local planning authorities should work proactively with developers coming forward with proposals for new settlements in their area.”

If you have a scheme that meets the criteria in the prospectus, there is little time to be lost.

Simon Ricketts 17.6.16

Personal views et cetera

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