Net Heritage Harm: Bramshill

Sometimes I think, why buy a legal text book when you can read it in a court judgment? Lindblom LJ has provided some useful practical guidance, in City & Country Bramshill Limited v Secretary of State (Court of Appeal, 9 March 2021), on how to go about the assessment, required by the NPPF, as to whether development proposals would be likely to cause harm to listed buildings and other heritage assets.

(The case also considers the interpretation of policies in the NPPF against the development of “isolated homes in the countryside” but I’m limiting this blog post to heritage aspects.)

The case arose out of a decision letter dated 31 January 2019 by inspector Vicki Hirst into no fewer than 33 appeals against refusals of planning permission and enforcement notices issued by the second respondent, Hart District Council, relating to development at Bramshill Park in Hampshire. The third and fourth respondents to the proceedings, Historic England and the National Trust, were objectors. The inquiry had sat for 26 days.

From Lindblom LJ’s judgment:

“The site, which extends to about 106 hectares, lies between the villages of Hazeley and Eversley. It was previously used as a national and international police training college. On it stands a grade I listed Jacobean mansion and various other buildings. It also contains a grade I registered park and garden. The proposed development included the conversion of the mansion to 16 apartments and the adjoining stable block to five (appeal 1), or its conversion to a single dwelling (appeal 2), or to class B1 office space (appeal 3); the construction of 235 houses in place of some of the existing buildings (appeal 4), 14 more to the south-west (appeal 5), and nine to the north of an existing lake (appeal 6); the use of 51 residential units – once occupied by staff employed at the training college – as separate dwellings (appeal 7), retaining those against which the council had taken enforcement action alleging a material change of use without planning permission (appeals 8 to 33).

The inspector held a long inquiry into the appeals, which ended in February 2018. In her decision letter, dated 31 January 2019, she allowed appeals 2 and 3, granting planning permission for those proposals. She also allowed appeals 15 and 17 to 33, quashing the enforcement notices in those appeals. She dismissed appeals 1, 4 to 14 and 16. In a separate decision letter dated 14 March 2019 she dismissed City & Country Bramshill’s application for costs against the council. City & Country Bramshill challenged her decisions on appeals 4 to 14 and 16, and on the application for costs. Waksman J. upheld the challenges to the decisions on appeals 7 to 14 and 16. He rejected those to the decisions on appeals 4 to 6 and on costs. The appeal before us is against that part of his order. Permission to appeal was granted by Lewison L.J. on 28 February 2020.

The key dispute before the court in relation to heritage policy was as follows:

“Historic England and the National Trust provided their evidence on the basis that paragraphs 195 and 196 of the [NPPF] would always be engaged where any element of harm was identified. The appellant held that this was not the correct approach […]. The appellant’s case is that an “internal heritage balance” should be carried out where elements of heritage harm and heritage benefit are first weighed to establish whether there is any overall heritage harm to the proposal. Paragraphs 195 and 196 would only be engaged where there is residual heritage harm. This should then be weighed against the public benefits of the scheme.”

I’m now handing the microphone over to my Town Legal colleague, Victoria McKeegan – the rest of this post is largely hers.

So, the key matter was whether, prior to engaging paragraphs 195 and 196 of the NPPF (which apply to cases where a development proposal will lead to substantial / less than substantial harm), an ‘internal heritage balance’ should be carried out where elements of heritage harm and benefit are first weighed up to establish whether there is any overall heritage harm. The appellant argued that this was the case and, as such, that these paragraphs are only engaged where there is residual heritage harm, this then being weighed against the public benefits of the scheme. Put another way, only if “overall harm” (i.e. net harm) emerges from the weighing of “heritage harms” against “heritage benefits” must the “other public benefits” of the development be weighed against that “overall harm“.

On this point, the Court held as follows:

Like the judge, I cannot accept those submissions. It is not stipulated, or implied, in section 66(1), or suggested in the relevant case law, that a decision-maker must undertake a “net” or “internal” balance of heritage-related benefits and harm as a self-contained exercise preceding a wider assessment of the kind envisaged in paragraph 196 of the NPPF. Nor is there any justification for reading such a requirement into NPPF policy. The separate balancing exercise for which Mr Strachan contended may have been an exercise the inspector could have chosen to undertake when performing the section 66(1) duty and complying with the corresponding policies of the NPPF, but it was not required as a matter of law. And I cannot see how this approach could ever make a difference to the ultimate outcome of an application or appeal.

There is also some useful commentary regarding the s66(1) duty and the concepts of ‘harm’ in the NPPF, which I set out below:

1. Matters of weight:

• Section 66(1) duty

Section 66 does not state how the decision-maker must go about discharging the duty to “have special regard to the desirability of preserving the building or its setting …”. The courts have considered the nature of that duty and the parallel duty for conservation areas in section 72 of the Listed Buildings Act, and the concept of giving “considerable importance and weight” to any finding of likely harm to a listed building and its setting. They have not prescribed any single, correct approach to the balancing of such harm against any likely benefits – or other material considerations weighing in favour of a proposal. But in Jones v Mordue this court accepted that if the approach in paragraphs 193 to 196 of the NPPF (as published in 2018 and 2019) is followed, the section 66(1) duty is likely to be properly performed.

• NPPF paragraph 193

The concept in paragraph 193 – that “great weight” should be given to the “conservation” of the “designated heritage asset”, and that “the more important the asset the greater the weight should be” – does not predetermine the appropriate amount of weight to be given to the “conservation” of the heritage asset in a particular case. Resolving that question is left to the decision-maker as a matter of planning judgment on the facts of the case, bearing in mind the relevant case law, including Sullivan L.J.’s observations about “considerable importance and weight” in Barnwell Manor.

2. The concepts of “substantial harm” and “less than substantial harm

The same can be said of the policies in paragraphs 195 and 196 of the NPPF, which refer to the concepts of “substantial harm” and “less than substantial harm” to a “designated heritage asset”. What amounts to “substantial harm” or “less than substantial harm” in a particular case will always depend on the circumstances. Whether there will be such “harm”, and, if so, whether it will be “substantial”, are matters of fact and planning judgment. The NPPF does not direct the decision-maker to adopt any specific approach to identifying “harm” or gauging its extent. It distinguishes the approach required in cases of “substantial harm … (or total loss of significance …)” (paragraph 195) from that required in cases of “less than substantial harm” (paragraph 196). But the decision-maker is not told how to assess what the “harm” to the heritage asset will be, or what should be taken into account in that exercise or excluded. The policy is in general terms. There is no one approach, suitable for every proposal affecting a “designated heritage asset” or its setting.

3. Identifying benefits

Identifying and assessing any “benefits” to weigh against harm to a heritage asset are also matters for the decision-maker. Paragraph 195 refers to the concept of “substantial public benefits” outweighing “substantial harm” or “total loss of significance”; paragraph 196 to “less than substantial harm” being weighed against “the public benefits of the proposal”. What amounts to a relevant “public benefit” in a particular case is, again, a matter for the decision-maker. So is the weight to be given to such benefits as material considerations. The Government did not enlarge on this concept in the NPPF, though in paragraph 196 it gave the example of a proposal “securing [the heritage asset’s] optimum viable use”.

Plainly, however, a potentially relevant “public benefit”, which either on its own or with others might be decisive in the balance, can include a heritage-related benefit as well as one that has nothing to do with heritage. As the inspector said (in paragraph 127 of the decision letter), the relevant guidance in the PPG applies a broad meaning to the concept of “public benefits”. While these “may include heritage benefits”, the guidance confirms that “all types of public benefits can be taken together and weighed against harm”.

Cases will vary. There might, for example, be benefits to the heritage asset itself exceeding any adverse effects to it, so that there would be no “harm” of the kind envisaged in paragraph 196. There might be benefits to other heritage assets that would not prevent “harm” being sustained by the heritage asset in question but are enough to outweigh that “harm” when the balance is struck. And there might be planning benefits of a quite different kind, which have no implications for any heritage asset but are weighty enough to outbalance the harm to the heritage asset the decision-maker is dealing with.

4. Interaction with the overall planning balance and statutory duties

One must not forget that the balancing exercise under the policies in paragraphs 195 and 196 of the NPPF is not the whole decision-making process on an application for planning permission, only part of it. The whole process must be carried out within the parameters set by the statutory scheme, including those under section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) and section 70(2) of the 1990 Act, as well as the duty under section 66(1) of the Listed Buildings Act. In that broader balancing exercise, every element of harm and benefit must be given due weight by the decision-maker as material considerations, and the decision made in accordance with the development plan unless material considerations indicate otherwise (see City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447). Within that statutory process, and under NPPF policy, the decision-maker must adopt a sensible approach to assessing likely harm to a listed building and weighing that harm against benefits.”

Thanks Victoria. Me again now. With the retirement of Lord Carnwath from the Supreme Court, Lindblom LJ is now our most senior “planning” judge. It is good to see him underlining yet again that it is for the decision maker to take a rational course through the various NPPF policy tests, based on judgment and circumstances – surely we all now know that, although great care is required to take into account what the individual paragraphs in the framework require (for what can go wrong see e.g. my 12 December 2020 blog post Where’s The Harm In That: Misreporting Heritage Effects), this should not be an overly technocratic or legalistic exercise with only one correct methodology?

Simon Ricketts, 12 March 2021

Personal views, et cetera

Tilt!

Tilt” in pinball is an example of a good rule: in order to discourage an unwanted outcome (cheating), transgression (sloping the table) leads to a predictable penalty (game over).

The purposes of the NPPF’s “tilted balance” (the phrase just being planners’ jargon) are to discourage local planning authorities from:

⁃ relying on out of date local plans

⁃ not maintaining (potentially with an additional buffer) at least five years’ housing land supply (now watered down to a minimum of three years’ housing supply if there is an up to date neighbourhood plan that allocates land for housing development) and

⁃ (since the introduction of the housing delivery test) not ensuring that a defined number of homes are delivered each year.

Where the tilted balance applies, it should in many circumstances be easier for developers to secure planning permission which is not in accordance with the relevant local plan and/or neighbourhood plan, in that paragraph 11 (d) of the NPPF provides as follows:

“(d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless:

i. the application of policies in this Framework that protect 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 against the policies in this Framework taken as a whole.

There is a footnote to “out-of-date”: “This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, as set out in paragraph 73); or where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years.

There is another crucial footnote, to (d)i: “The policies referred to are those in this Framework (rather than those in development plans) relating to: habitats sites (and those sites listed in paragraph 176) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets (and other heritage assets of archaeological interest referred to in footnote 63); and areas at risk of flooding or coastal change.

Already, that description surely begins to raise obvious questions:

⁃ Is the rule sufficiently clear and understood, such that the risk of the penalty actually influences council members’ and officers’ decision making so as to discourage those unwanted outcomes: to encourage up to date plans, the maintenance of an adequate housing land supply, sufficient homes being built? If the public doesn’t understand it, it’s going to have no effect at the ballot box – so how do we expect it to influence councillors, for whom being seen to protect their local areas from change will usually be a more potent vote winner?

⁃ To what extent can the authority avoid those unwanted outcomes in any event, given for instance the slowness of the local plans system even for a authority wishing to make swift progress and given the reliance on the private sector not only to promote suitable sites but then proceed to build them out?

⁃ The footnote to (d)i reduces the impact of the rule in constrained areas which usually turn out to be those where the documented need for housing is greatest.

⁃ Should there be a different penalty other than to make it more likely that development will take place in a way which is unplanned for and often unpopular? What are the most direct “carrots and sticks” that could be deployed?

Four years ago this month my thoughts were wandering in these directions, while sitting in the Supreme Court in the Suffolk Coastal case, acting for Richborough Estates (thank you Paul Campbell and Chris Young). The case was a turning point in the consideration of how the tilted balance is intended to work. It relates to the original 2012 version of the NPPF but the principles still hold true. The judgment in Suffolk Coastal District Council v Hopkins Homes Limited, Richborough Estates Partnership LLP v Cheshire East Borough Council (Supreme Court, 10 May 2017) is a masterpiece in cutting through what had been a series of conflicting rulings by the lower courts as to how the tilted balance was to be interpreted in order to pull us all back to the basic principles. I tried to summarise them in a blog post at the time, but for instance:

⁃ Let’s not overstate the influence of the test: the NPPF is no more than “guidance” and is no more than a “material consideration” for the purposes of section 70(2) of the 1990 Act: “It cannot, and does not purport to, displace the primacy given by the statute and policy to the statutory development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme”. (Lord Carnwath, paragraph 21) (i.e. there’s a get-out so that a decision maker can determine that, notwithstanding the tilted balance, planning permission should not be granted).

⁃ Deprecation of the “over-legalisation of the planning process, as illustrated by the proliferation of case law on [the tilted balance]. This is particularly unfortunate for what was intended as a simplification of national policy guidance, designed for the lay-reader.” (Lord Carnwath, para 23) (i.e. the court will always be reluctant to interfere with the judgment arrived at by the decision maker).

⁃ As long as decision makers apply it lawfully (which means they first have to understand it – not easy!) the application of the tilted balance test engages matters of planning judgement, not legal interpretation. (i.e. legal challenges to the decision maker’s judgment, have to be based on unlawful or irrational reasoning on the part of the decision maker – never easy).

⁃ the basis for the test arises from the importance that the NPPF places on boosting the supply of housing. “The message to planning authorities is unmistakeable”. (Lord Gill, paragraph 77). He refers to “the futility of authorities’ relying in development plans on the allocation of sites that have no realistic prospect of being developed within the five year period”. (paragraph 78). (i.e. the test has a real world objective which we must not lose sight of – boosting the supply of housing).

⁃ “If a planning authority that was in default of the requirement of a five-years supply were to continue to apply its environmental and amenity policies with full rigour, the objective of the Framework could be frustrated”. (Lord Gill, paragraph 83). (i.e. the outcome of the test may well be that planning permissions are granted notwithstanding an authority’s policies – that’s the whole point of it).

The cases have kept coming. Already, in 2021, there have been no fewer than three rulings from the Court of Appeal – on a test in a non statutory policy document – this is surely ridiculous. Does this arise from its unnecessary complexity and “angels dancing on the head of a pin” abstractions, or from the way that in practice the so-called tilted balance hardly seems to provide any tilt at all, even in areas with a severe under-supply of housing, perhaps contrary to the original objective?

Three 2021 Court of Appeal cases:

Gladman Developments Limited v Secretary of State (Court of Appeal, 3 February 2021)

The case raised “two main issues: first, whether a decision-maker, when applying the “tilted balance” under paragraph 11d)ii, is required not to take into account relevant policies of the development plan; and second, as a connected issue, whether it is necessary for the “tilted balance” and the duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 to be performed as separate and sequential steps in a two-stage approach. There is a further issue: whether the “tilted balance” under paragraph 11d)ii excludes the exercise indicated in paragraph 213 of the NPPF, which requires that policies in plans adopted before its publication should be given due weight, “according to their degree of consistency with [it]“.

Answers from the court: no, no and (on the further issue) no.

R (Monkhill Limited) v Secretary of State (Court of Appeal), 27 January 2021)

The case raised “one principal issue […]: whether the inspector was wrong to interpret the first sentence of paragraph 172 of the NPPF, which says “great weight should be given to conserving and enhancing landscape and scenic beauty” in an AONB, as a policy whose application is capable of providing “a clear reason for refusing” planning permission under paragraph 11d)i of the NPPF.

Answer from the court: no.

Paul Newman New Homes Ltd v Secretary of State (Court of Appeal, 12 January 2021)

Ever since a NPPF was first introduced in March 2012, the interpretation of its provisions has provided a fertile hunting ground for planning lawyers. The 2018 version was intended to produce greater clarity and simplicity, but unfortunately it has not been entirely successful. The effect of the appellant’s argument was that if there is only one relevant policy in the local plan, the developer gets the benefit of the tilted balance (absent the operation of one of the exceptions). Mr Lockhart-Mummery eschewed any suggestion that this was a “numbers game” but he also very fairly accepted that it is virtually unknown for a single policy in a local plan to embrace all the material considerations that would suffice to enable a decision-maker to determine a planning application, especially if that application is to build houses.”

Answer from the court: no. (“… at the end of the day there is nothing inherently unfair to an applicant or contrary to the overall scheme of the NPPF or the 2004 Act, both of which afford primacy to the local plan, about the balancing exercise being carried out under section 38(6) in circumstances where an experienced Planning Inspector has found that there is a policy in the development plan that is relevant, important and up-to-date. For those reasons I would uphold the interpretation of Paragraph 11d) adopted by the Judge and applied by the Inspector).”

Housing delivery test:

The Government has now published the results of its 2020 housing delivery test measurement (19 January 2021). The figures are important, because if the housing delivery test indicates that the delivery of housing was less than 85% of the housing supply requirement over the last three years, a buffer of 20% has to be added to that requirement. If delivery was less than 75% of the housing requirement over the previous three years, that is a trigger for the application of the tilted balance.

As an adjustment to recognise at least to some extent to effects of Covid this past year, authorities’ requirements this year were reduced by a month.

This year there are (by my count) 55 authorities for whom the tilted balance applies following these latest measurements.

Has that featured in the relevant local press? What are authorities doing about it? I would be pleased to hear.

And what of the obvious flaw, highlighted by Zack Simons in his 21 January 2021 blog post Elephants in the Room: Green Belts vs. the Housing Delivery Test – the obvious correlation between green belt authorities and those that are failing the delivery test?

I just wonder whether it might not be better to sweep all of this complexity away and replace it with a policy that provides for an enhanced presumption in favour of development if relevant housing land supply figures are not met: the higher the shortfall, the more weighty the presumption? Leave the detail to decision makers, including to inspectors on appeal – attempts at greater prescription are doomed to fail and are not understood by the public.

There should also be additional consequences for authorities that fail to meet these targets, and their councillors – but also a new transparency on the part of the Government as to (1) the basis for its national target and (2) the need for frank annual reporting to Parliament as to its performance as against that target.

To encourage desirable outcomes, we need rules that everyone understands. Plan positively = great places. A failure to plan positively = intervention, remedial steps.

But enough of this quixotic tilting.

Simon Ricketts, 6 February 2021

Personal views, et cetera

Beautiful Day

I threw those curtains wide, drinking in the morning emails and there it was: MHCLG press release 30 January 2021, All new developments must meet local standards of beauty, quality and design under new rules.

Consultation is now running until 27 March 2021 on:

National Planning Policy Framework and National Model Design Code: consultation proposals

National Planning Policy Framework Draft text for consultation

Draft national design code

Guidance notes on design codes

The proposals seek to give effect to the Building Better Building Beautiful Commission’s recommendations that I summarised in my 1 February 2020 blog post Beauty Duty.

“The National Model Design Code is intended to form part of the government’s planning practice guidance. It is not a statement of national policy. However, once finalised, the government recommends that the advice on how to prepare design codes and guides is followed.”

I will leave others to comment on the draft national design code and the proposed “beauty” related changes to the NPPF (the consultation proposals identify the changes and the draft revised text is helpfully marked-up to show all the textual changes).

However, you should note that the draft NPPF changes go wider:

“We have also taken this opportunity to make a number of environment-related changes, including amendments on flood risk and climate change. The amendments also include a small number of very minor changes arising from legal cases, primarily to clarify the policy. A few minor factual changes have also been made to remove out-of-date text (for example, the early thresholds for the Housing Delivery Test), to reflect a recent change made by Written Ministerial Statement about retaining and explaining statues, and an update on the use of Article 4 directions.

As summarised in the consultation proposal, the draft revised text:

Implements policy changes in response to the Building Better Building Beautiful Commission recommendations

• Makes a number of changes to strengthen environmental policies – including those arising from our review of flood risk with Defra

• Includes minor changes to clarify policy in order to address legal issues

• Includes changes to remove or amend out of date material

• Includes an update to reflect a recent change made in a Written Ministerial Statement about retaining and explaining statues.

• Clarification on the use of Article 4 directions

Some points that immediately leapt out (this is not a comprehensive list):

Overarching objectives of the planning system

Paragraph 8 of the NPPF has been amended to refer to refer to “beautiful, well-designed and safe places” (previously “a well-designed and safe built environment”).

The presumption in favour of sustainable development

Paragraph 11 (a) has been amended to read:

“all plans should promote a sustainable pattern of development that seeks to: meet the development needs of their area; align growth and infrastructure; improve the environment; mitigate climate change (including by making effective use of land in urban areas) and adapt to its effects”.

(The previous wording was “plans should positively seek opportunities to meet the development needs of their area, and be sufficiently flexible to adapt to rapid change”).

Article 4 directions

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

This is really interesting, particularly in the context of the proposed class E to C3 permitted development right. The proposed wording is pretty tight:

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

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

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

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

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

Larger scale residential proposals

There is an amendment to paragraph 73 to require that these should include “a genuine choice of transport modes”.

Isolated homes in the countryside

The design should now be “outstanding”. The “or innovative” is gone.

Affordable home ownership

“Paragraph 64 has been amended to clarify that, where major development involving the provision of housing is proposed, planning policies and decisions should expect at least 10% of the total number of homes to be available for affordable home ownership. This is to address confusion as to whether the 10% requirement applies to all units or the affordable housing contribution.”

Neighbourhood plan allocations

Paragraph 69 has been amended to remove any suggestion that neighbourhood plans can only allocate small or medium sites. This was not the policy intention, so the wording has therefore been amended to clarify that neighbourhood planning groups should also give particular consideration to the opportunities for allocating small and medium-sized sites (of a size consistent with paragraph 68a) suitable for housing in their area.

Trees

A new paragraph 130:

“Trees make an important contribution to the character and quality of urban environments, and can also help mitigate and adapt to climate change. Planning policies and decisions should ensure that new streets are tree-lined [Unless, in specific cases, there are clear, justifiable and compelling reasons why this would be inappropriate], that opportunities are taken to incorporate trees elsewhere in developments (such as community orchards), that appropriate measures are in place to secure the long- term maintenance of newly-planted trees, and that existing trees are retained wherever possible. Applicants and local planning authorities should work with local highways officers and tree officers to ensure that the right trees are planted in the right places, and solutions are found that are compatible with highways standards and the needs of different users.”

The “well-designed” test

Paragraph 133:

“133. Development that is not well designed should be refused, especially where it fails to reflect local design policies and government guidance on design, taking into account any local design guidance and supplementary planning documents which use visual tools such as design guides and codes. Conversely, significant weight should be given to:

a) development which reflects local design policies and government guidance on design, taking into account any local design guidance and supplementary planning documents which use visual tools such as design guides and codes; and/or

b) outstanding or innovative designs which promote high levels of sustainability,, or help raise the standard of design more generally in an area, so long as they fit in with the overall form and layout of their surroundings.”

Development affecting the setting of national parks and AONBs

“New paragraph 174 has been amended in response to the Glover Review of protected landscapes, to clarify that the scale and extent of development within the settings of National Parks and Areas of Outstanding Natural Beauty should be sensitively located and designed so as to avoid adverse impacts on the designated landscapes.”

Historic statues, plaques and memorials

(which was going to be the subject of this week’s blog post until the curtains/drinking in the emails moment)

“New paragraph 196 has been added to clarify that authorities should have regard to the need to retain historic statues, plaques or memorials, with a focus on explaining their historic and social context rather than removal, where appropriate.”

This of course supplements Robert Jenrick’s statement to the House of Commons (18 January 2021) and MHCLG’s 17 January 2021 press statement, New legal protection for England’s heritage.

As a draft for consultation in my view the consultation material so far has only limited weight for decision makers and, as is usually and appropriately the case, the final documents may be subject to change. However, there is much for us all to get to grips with – and comments on the national design code are for another day.

Simon Ricketts, 30 January 2021

Personal views, et cetera

Quantity Street Fudge

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

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

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

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

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

“- Confused about the “new” Standard Method?

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

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

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

Well, here’s what just happened

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

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

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

And then Ministers bottled it

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

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

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

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

The Government’s NPPF tells local planning authorities this:

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

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

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

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

written ministerial statement

changed planning practice guidance

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

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

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

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

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

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

Courtesy of Lichfields

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

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

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

For London:

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

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

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

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


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


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


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


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

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

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

But what is wrong with the following analysis?

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

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

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

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

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

Merry Christmas!

Simon Ricketts, 19 December 2020

Personal views, et cetera

Where’s The Harm In That? Misreporting Heritage Effects

A few recent cases illustrate how vulnerable planning permissions can be to judicial review where there are material errors or omissions in the officer’s report to committee.

R (Wyeth-Price) v Guildford Borough Council (Lang J, 8 December 2020) is a classic example, and Lang J sets out in her judgment a textbook explanation of the legal framework, established by caselaw, in relation to decision making and officers’ reports.

It seems to me that the most risk-prone areas of an officer’s report will be:

⁃ summaries of the conclusions of often detailed and highly technical analysis, where the decision maker must not be “significantly misled” by the summary or indirectly by the material on which the summary is based – classic areas for scrutiny being effects on daylight and sunlight, viability, air quality, and noise

⁃ the interaction with other legal regimes, for example environmental impact assessment, the Conservation of Habitats Regulations or the public sector equality duty

⁃ application of legal or policy tests – classic areas being the NPPF tilted balance, green belt, AONB and heritage.

Wyeth-Price is another in a rich seam of cases where the High Court has quashed a planning permission due to the failure of the officer properly to apply the heritage tests in the NPPF, which must have been frustrating to Bewley Homes, which had achieved, so it thought, planning permission for 73 dwellings at Ash Manor, Ash Green, Guildford, following a committee resolution on 4 December 2019 on the basis of a 49 page officer’s report.

The effect on nearby listed buildings was a central issue in the consideration of the application. To quote from Lang J’s judgment:

“Adjacent to the Site…there is a small complex of historic buildings and farm structures, known as Ash Manor. The largest building within the complex is Grade II* listed and has been converted into two residential dwellings, known as Ash Manor and Old Manor Cottage. The Oast House lies to the south of it and its stables are Grade II listed. To the south of this is a further residential dwelling known as Oak Barn which is also Grade II listed. The significance of Ash Manor is derived from its historic and architectural interest as a moated manor house, thought to have thirteenth century origins, with successive phases of development dating to the sixteenth, seventeenth and mid-twentieth centuries. According to Historic England, the current agricultural and open character of the setting of Ash Manor is one that has remained constant through its history. It advised that the proposed development would cause harm to the setting of the heritage assets, assessed at less than substantial harm.”

The importance of the heritage aspect in resisting the proposal had not been lost on objectors – see for example a 2017 Guildford Dragon article Grade II* Listing for Ash Manor House May Scupper Development Proposals:

“A homeowner in Ash Green is hoping that a new Grade II* listing from Historic England may prevent proposed developments that would surround his moated 13th-century manor house with nearly 200 houses, possibly more if further envisioned development phases are built out.

David Weller, who owns Old Manor Cottage, half of the original medieval Ash Manor House, off Foreman Road, said: “If the proposed developments go ahead the setting of our historic house will be ruined for good.”

The challenge was brought by a local resident who was formerly the chair of the Ash Green Residents’ Association. There were three grounds:

“i) Ground 1: Failure to apply section 66(1) of the PLBCAA 1990 and failure to take account of paragraphs 193 and 194 of the Framework.


ii) Ground 2: Failure to have regard to a relevant consideration, namely, the advice of Surrey Wildlife Trust in respect of a veteran tree at the Site, and acting irrationally in departing from the advice without reasons.


iii) Ground 3: Failure to have regard to material considerations concerning flooding at the Site and/or acting irrationally by ignoring expert evidence on this matter”

Grounds 2 and 3 failed and so I am just focusing on ground 1, relating to section 66(1) of the Listed Buildings Act (“In considering whether to grant planning permission…for development which affects a listed building or its setting, the local planning authority…shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses”) and paragraphs 193 and 194 of the NPPF:

“193. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation (and the more important the asset, the greater the weight should be). This is irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance.

194. Any harm to, or loss of, the significance of a designated heritage asset (from its alteration or destruction, or from development within its setting), should require clear and convincing justification. Substantial harm to or loss of:

a) grade II listed buildings, or grade II registered parks or gardens, should be exceptional;

b) assets of the highest significance, notably scheduled monuments, protected wreck sites, registered battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.”

Lang J sets out the relevant tests and case law in her judgment before summarising the problems with the report:

“The Claimant submitted that the planning officer’s report seriously misled the Planning Committee by failing to advise members on the weight to be given to the harm to heritage assets in the balancing exercise. Although he set out section 66(1) PLBCAA 1990, he did not explain that a finding of harm to a listed building is a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise. He failed to refer at all to paragraph 193 of the Framework, which requires “great weight” to be given to the asset’s conservation and the more important the asset, the greater the weight should be. He also failed to refer to paragraph 194 which requires a “clear and convincing justification” for any harm. Applying the approach of Sales LJ in Mordue, the Claimant submitted that there were positive indications in the report that the officer had not taken paragraphs 193 and 194 into account.”

“The planning officer expressly referred to the duty under section 66(1) PLBCAA 1990, both in his advice on the statutory framework and at the critical stage of the balancing exercise. However, he did not advise members on how they were required to apply the section 66(1) duty to the balancing exercise. The application of the section 66(1) duty is not explicitly clear from the wording of section 66(1), as demonstrated by the fact that it was only after the case of Barnwell that it was fully appreciated by experienced planning inspectors and lawyers that section 66(1) imposed a duty to treat a finding of harm to a listed building as a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise and that it was not open to the decision-maker merely to give the harm such weight as he thinks fit, in the exercise of his planning judgment.”

“Can it be inferred that the planning officer in this case took into account paragraphs 193 and 194 of the Framework in the balancing exercise he conducted in his report and thereby enabled members of the Planning Committee to take them into account?

In my view, there were several positive indications to the contrary…”

“Thus, in 2017, members were advised that the effect of section 66(1) PLBCAA 1990 was that a finding of harm to a listed building was a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise. Members were also reminded, for the second time, of the guidance in the Framework that “great weight” should be given to the asset’s conservation – the more important the asset, the greater the weight should be – and that any harm or loss required “clear and convincing justification” for any harm. None of this advice was given in the October 2019 report. The fact that, in 2017, the planning officer was recommending refusal of permission, whereas, in 2019, he was recommending a grant of permission, ought not to have had any bearing on whether or not to include this advice in the report, and it was not suggested that it did.

“I now return to the question whether the advice was seriously misleading, thereby misleading the members in a material way so that, but for the flawed advice, the Planning Committee’s decision would or might have been different. In my judgment, the planning officer must have been aware of the guidance given by the Court of Appeal in Barnwell on the application of the section 66(1) duty to the balancing exercise and the guidance in paragraphs 193 and 194 of the Framework, as it is well-known among professional planners and he advised on it in the 2017 report. However, on a fair reading of his October 2019 report, he did not advise members of the Planning Committee on this guidance and he did not apply it when he undertook the balancing exercise on this occasion.

At the hearing I asked the parties whether an experienced member of the Planning Committee, who had been referred to this guidance in other applications, perhaps even the 2017 application, might have been aware of the guidance, even though it was not to be found in the planning officer’s report. When I raised this possibility with the parties, Mr Williams for the Council did not wish to rely upon it. Mr Fitzsimons for the Claimant rejected it on the basis that busy Committee members relied upon the officer’s report and did not do their own research. On instructions, he said that new members had recently been appointed to the Planning Committee, following elections, and so it could not safely be assumed that they were aware of the guidance, from the 2017 application or any other. It seems to me that if a member of the Planning Committee did consider that the planning officer’s report did not give accurate and/or sufficient advice on how to conduct the balancing exercise, the matter would have been raised at the meetings. The minutes of the two meetings of the Planning Committee do not record that members sought further clarification or guidance on how to conduct the balancing exercise at those meetings. Therefore I conclude that members of the Planning Committee relied only upon the advice given in the planning officer’s reports.”

There was also a short addendum report addressing amendments made to the scheme but this “report repeated the error of advising members to undertake an untilted balancing exercise, weighing the less than substantial harm to the heritage assets against the public benefits of the proposal without apparently taking into account the requirement to accord “considerable importance and weight” to a finding of harm to a listed building and “great weight” to the asset’s conservation, as a Grade II* listed building, and the need for a “clear and convincing justification” for any harm.”

Care needed!

In concluding that the effect of the officer’s balancing exercise was to “play down the part of the exercise represented by [paragraph 193 and 194] and to tilt the balance towards emphasising the absence of substantial harm and the public benefits to be weighed on the other side of the balance“, Lang J draws upon another case earlier this year R (Liverpool Open and Green Spaces Community Interest Company). Liverpool City Council (Court of Appeal, 9 July 2020) where the Court of Appeal quashed planning permission on the basis that there was a “substantial doubt” as to whether the section 66(1) duty had been met where the officer’s report had failed to refer to objections to the proposals from the council’s Urban Design and Heritage Conservation team, a conclusion “only strengthened by the absence, at least from the section of the officer’s report in which his assessment is set out, of any steer to the members that a finding of harm to the setting of the listed building was a consideration to which they must give “considerable importance and weight“.

In fact, omissions from a report of a reference to relevant objections – or misleading inferences from a lack of an objection – are a particularly high risk area. The Court of Appeal in the Liverpool case refer back to R (Loader) v Rother District Council (Court of Appeal, 28 July 2016) where the officer’s “report had indicated that the Victorian Society, which had objected to a previous application, had made no comments on the new proposal. In fact, they had not been consulted. The appellant argued that the committee might have been left, wrongly, with the impression that the Victorian Society were now satisfied with the revised design. This court accepted that “[in] the context of the duty [in section 66(1)], … in taking this misinformation into account, [the committee] could be said to have proceeded on the basis of an error of fact”, but that “the unlawfulness [was] better described as the taking into account of an immaterial consideration” (paragraph 57). This was enough to justify quashing the planning permission (paragraph 58).”

We now have an even more dramatic example in the case of the One Eastside development in Birmingham, a proposal for 667 apartments in a 51 storey tower near Curzon Street station.

The scheme was the subject of a 5 December 2019 Committee report (from page 122 of the pdf) but the resulting planning permission was challenged by nearby land owner LaSalle (See e.g. BD Online Glancy Nicholls tower faces judicial review ((9 November 2020).

Greg Jones QC and Esther Drabkin-Reiter have been acting for LaSalle and it seems from Francis Taylor Building’s 9 December 2020 press statement that the council has consented to judgment on the basis that “an objection to the proposed development made by the Victorian Society was not reported to the Planning Committee and further that the objection made by the Victorian Society went beyond those matters identified by Historic England which were reported to the Planning Committee.

How precarious a planning permission can be until it has passed the deadline for a legal challenge (time again to tout my proposal that the judicial review pre-action protocol should encourage early identification by claimants of these sorts of points, before planning permission is issued – my 30 May 2020 blog post Revisiting Burkett: Should The JR Pre-Action Protocol Be Updated? – whilst recognising that in some cases, including possibly the One Eastside example, the extent of the errors and omissions may only in fact become clear through the litigation process itself).

Simon Ricketts, 12 December 2020

Personal views, et cetera

Extract from site location plan courtesy of Guildford Borough Council’s 5 December 2019 report to committee

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.

To-morrow never dies

Starter Homes Were A Non Starter – What Future For First Homes?

Government is consulting on the “design and delivery” of First Homes. The deadline for responses is 3 April 2020. First Homes was of course a manifesto pledge and so there are no questions as to whether the concept itself is supportable or indeed practical.

That is a shame, given the failure of the Starter Homes initiative after so much work and public expenditure. As explained in my 4 March 2017 blog post Definitely Maybe: Defining Affordable Housing, an elaborate structure was arrived at by way of chapter 1 of the Housing and Planning Act 2016 and a technical consultation by the Government in March 2016:

– a legal requirement that 20% of new homes in developments should be starter homes, ie

⁃ to be sold at a discount of at least 20% to open market value to first time buyers aged under 40. 

⁃ Price cap of £250,000 (£450,000 in London)

– The restriction should last for a defined number of years, the first suggestion being five years, replaced with the concept of a tapered restriction to potentially eight years

– Commuted sums in lieu of on site provision for specified categories of development, eg build to rent.

The Government’s response to the technical consultation then significantly watered down the starter home concept, to the extent that the legislation was surplus to requirements (it is still on the statute book, just left hanging):

– There would be no statutory requirement on local planning authorities to secure starter homes, just a policy requirement in the NPPF, which was to be amended accordingly. 

– Rather than requiring that 20% of new homes be starter homes, the requirement would be that 10% of new homes will be “affordable housing home ownership products” so could include shared equity or indeed low cost home ownership. 

– maximum eligible household income of £80,000 a year or less (or £90,000 a year or less in Greater London 

– 15 year restriction

– No cash buyers, evidence of mortgage of at least 25% loan to value

– Only be applicable to schemes of ten units or more (or on sites of more than 0.5h). 

The only reference to starter homes in the February 2019 version of the NPPF is in the glossary’s definition of affordable homes:

b) Starter homes: is as specified in Sections 2 and 3 of the Housing and Planning Act 2016 and any secondary legislation made under these sections. The definition of a starter home should reflect the meaning set out in statute and any such secondary legislation at the time of plan-preparation or decision-making. Where secondary legislation has the effect of limiting a household’s eligibility to purchase a starter home to those with a particular maximum level of household income, those restrictions should be used.”

Paragraph 64 of the NPPF of course requires:

Where major development involving the provision of housing is proposed, planning policies and decisions should expect at least 10% of the homes to be available for affordable home ownership, unless this would exceed the level of affordable housing required in the area, or significantly prejudice the ability to meet the identified affordable housing needs of specific groups. Exemptions to this 10% requirement should also be made where the site or proposed development:

a) provides solely for Build to Rent homes;

b) provides specialist accommodation for a group of people with specific needs (such as purpose-built accommodation for the elderly or students);

c) is proposed to be developed by people who wish to build or commission their own homes; or

d) is exclusively for affordable housing, an entry-level exception site or a rural exception site.”

Going back to the NPPF affordable housing definition, aside from starter homes the other two listed categories of affordable home ownership are:

c) Discounted market sales housing: is that sold at a discount of at least 20% below local market value. Eligibility is determined with regard to local incomes and local house prices. Provisions should be in place to ensure housing remains at a discount for future eligible households.

d) Other affordable routes to home ownership: is housing provided for sale that provides a route to ownership for those who could not achieve home ownership through the market. It includes shared ownership, relevant equity loans, other low cost homes for sale (at a price equivalent to at least 20% below local market value) and rent to buy (which includes a period of intermediate rent). Where public grant funding is provided, there should be provisions for the homes to remain at an affordable price for future eligible households, or for any receipts to be recycled for alternative affordable housing provision, or refunded to Government or the relevant authority specified in the funding agreement.”

Of these different affordable home ownership options (using the Government jargon, I appreciate that what is “affordable” is an open question), starter homes were abandoned by the Government as a concept after a huge amount of money and time had been spent. The National Audit Office’s Investigation into Starter Homes (4 November 2019) found as follows:

In April 2015, the Conservative Party manifesto committed to “200,000 Starter Homes, which will be sold at a 20% discount and will be built exclusively for first-time buyers under the age of 40”. The November 2015 Spending Review subsequently provided £2.3 billion to support the delivery of 60,000 Starter Homes (of the 200,000 previously announced). The Housing and Planning Act (2016) set out the legislative framework for Starter Homes and the Department ran a consultation on Starter Homes Regulations (the regulations) between March and June 2016.

Between 2015 and 2018, government’s policy towards Starter Homes shifted.

In May 2018, the Minister of State for Housing and Planning stated that the government had spent an estimated £250 million of the Starter Homes Land Fund. In July 2018, the Department clarified that it had spent £250 million buying land to build affordable properties from two funds, the Starter Homes Land Fund and the Land Assembly Fund, with work under way to get the land ready for development, but that building had not yet started.”

“No Starter Homes have been built to date.”

“The Starter Homes legislative provisions are not yet in force.”

“The Department no longer has a budget dedicated to the delivery of Starter Homes.”

“Between 2015-16 and 2017-18, the Department spent almost £174 million preparing sites originally intended for building Starter Homes.”

“In 2015-16, Homes England spent £15.4 million of the Starter Homes 2015 funding preparing brownfield land.”

“Since August 2015 the Department has spent £6.45 million supporting local authorities through the Programme.”

“In 2016-17 and 2017-18, the Department spent £151 million under the

[Starter Homes Land Fund], but the spending has not supported the building of Starter Homes.”

“In 2017-18, the Department spent £97 million from the SHLF, but under [Land Assembly Fund] criteria, on acquiring land needing work and preparing it for the market”

No doubt some of the monies earmarked for starter homes may have ended up going towards other housing and affordable housing initiatives (I am not clear on that) but surely what an embarrassment this is for whoever first came up with the bright idea that was starter homes.

However, moving on from that failure, of course the thing to do is to learn from past mistakes? Why didn’t it work? What could have been done better? This is the essence of “black box thinking”. I was certainly not the only one pointing out the potential complexities that might prove its downfall (See my 21 June 2016 blog post Valuing Starter Homes).

But of course there is a insatiable political hunger for new ideas for manifestos, and in the December 2019 Conservative manifesto a concept of First Homes was trumpeted as the new solution to “making the dream of home ownership a reality for everyone” (to quote from the latest consultation document).

The initiative was formally launched on 7 February 2020 with a one page guide and more detailed consultation document.

The headlines are set out in the guide:

• First Homes are flats and houses built on developments up and down the country. They will be no different from other properties except they will be sold with a discount of at least 30 percent.

• They will be sold to local people who want to stay in the community where they live or work but are struggling to purchase a home at market prices.

• They will be prioritised for first-time buyers, serving members and veterans of the Armed Forces, and key workers, such as nurses, police and teachers.

• The discount will be passed on to future buyers when First Homes are resold so more people can be helped onto the ladder.

Jennie Baker at Lichfields has written an excellent summary First Homes: discounted market housing that actually delivers? (10 February 2020).

There has been widespread concern as to whether this new product (however it may be delivered – and there is going to be a statutory or policy requirement for it to be provided as part of the housing tenure mix on major schemes) will be at the expense of other more needed or more efficient affordable housing products (see for instance the piece by Ruth Davison, chief executive of Islington and Shoreditch Housing Association, First Homes won’t extend homeownership and will decimate supply of homes for those most in need) and of course not “affordable” for many (see for instance Shelter’s comments in the 16 February 2020 Guardian piece Discounted housing scheme out of reach of most first-time buyers) and I personally see as many potential valuation pitfalls as identified with starter homes – and surely there is a greater difficulty “selling” a discount product to purchasers where, unlike with starter homes, that discount will remain in perpetuity.

If you are not now going to MIPIM, why not consider the questions in the consultation paper instead? They neatly encapsulate many of the current uncertainties as to how this is all going to work:

Q1.

a) Do you agree with a minimum discount of 30% (but with local flexibility to set a higher one)?

b) If not, what should the minimum discount be? i. 20%

ii. 40%

iii. Other (please specify)

Q2.

a) Should we set a single, nationally defined price cap rather than centrally dictate local/regional price caps?

b) If yes, what is the appropriate level to set this price cap? i. £600,000

ii. £550,000 iii. £500,000 iv. £450,000

v. Other (please specify)

Q3.

a) If you disagree with a national price cap, should central Government set price caps which vary by region instead?

b) If price caps should be set by the Government, what is the best approach to these regional caps?

i. London and nationwide

ii. London, London surrounding local authorities, and nationwide

iii. Separate caps for each of the regions in England iv. Separate caps for each county or metropolitan area

v. Other (please specify)

Q4.

Do you agree that, within any central price caps, Local Authorities should be able to impose their own caps to reflect their local housing market?

Q5.

Do you agree that Local Authorities are best placed to decide upon the detail of local connection restrictions on First Homes?

Q6.

When should local connection restrictions fall away if a buyer for a First Home cannot be found?

i. Less than 3 months

ii. 3 – 6 months

iii. Longer than 6 months

iv. Left to Local Authority discretion

Q7.

In which circumstances should the first-time buyer prioritisation be waived?

Q8.

a) Should there be a national income cap for purchasers of First Homes?

b) If yes, at what level should the cap be set?

c) Do you agree that Local Authorities should have the ability to consider people’s income and assets when needed to target First Homes?

Q9:

Are there any other eligibility restrictions which should apply to the First Homes scheme?

Q10.

a) Are Local Authorities best placed to oversee that discounts on First Homes are offered in perpetuity?

b) If no, why?

Q11.

How can First Homes and oversight of restrictive covenants be managed as part of Local Authorities’ existing affordable homes administration service?

Q12.

How could costs to Local Authorities be minimised?

Q13.

Do you agree that we should develop a standardised First Home model with local discretion in appropriate areas to support mortgage lending?

Q14.

Do you agree that it is appropriate to include a mortgage protection clause to provide additional assurance to lenders?

Q15.

For how long should people be able to move out of their First Home and let it out (so it is not their main or only residence) without seeking permission from the Local Authority?

i. Never

ii. Up to 6 months

iii. 6- 12 months

iv. Up to 2 years

v. Longer than 2 years vi. Other (please specify)

Q16.

Under what circumstances should households be able to move out of their First Home and let it for a longer time period? (Tick all that apply)

i. Short job posting elsewhere

ii. Deployment elsewhere (Armed Forces)

iii. Relationship breakdown

iv. Redundancy

v. Caring for relative/friend

vi. Long-term travelling

vii. Other (please specify)

Q17.

Do you agree that serving members and recent veterans of the Armed Forces should be able to purchase a First Home in the location of their choice without having to meet local connections criteria?

Q18.

What is the appropriate length of time after leaving the Armed Forces for which veterans should be eligible for this exemption?

i. 1 year

ii. 2 years

iii. 3-5 years

iv. Longer than 5 years

Q19.

Are there any other ways we can support members of the Armed Forces and recent veterans in their ability to benefit from the First Homes scheme?

Q20.

Which mechanism is most appropriate to deliver First Homes?

i. Planning policy through changes to the National Planning Policy Framework and guidance

ii. Primary legislation supported by planning policy changes

Q21.

Which do you think is the most appropriate way to deliver First Homes?

i. As a percentage of section 106 affordable housing through developer contributions

ii. As a percentage of all units delivered on suitable sites

Q22.

What is the appropriate level of ambition for First Home delivery?

i. 40% of section 106

ii. 60% of section 106

iii. 80% of section 106

iv. Other (please specify

Q23.

Do you agree with these proposals to amend the entry-level exception site policy to a more focused and ambitious First Homes exception site policy?

Q24.

a) Do you think there are rare circumstances where Local Authorities should have the flexibility to pursue other forms of affordable housing on entry-level exception sites, because otherwise the site would be unviable?

b) If yes, what would be an appropriate approach for Local Authorities to demonstrate the need for flexibility to allow other forms of affordable housing on a specific entry- level exception site?

Q25.

What more could the Government do to encourage the use of the existing rural exception site policy?

Q26.

What further steps could the Government take to boost First Home delivery?

Q27.

Do you agree that the proposal to exempt First Homes from the Community Infrastructure Levy would increase the delivery of these homes?

Q28.

Do you think the Government should take steps to prevent Community Infrastructure Levy rates being set at a level which would reduce the level of affordable housing delivered through section 106 obligations?

Q29.

a) What equality impacts do you think the First Homes scheme will have on protected groups?

b) What steps can the Government take through other programmes to minimise the impact on protected groups?

Q30.

Do you have any other comments on the First Homes scheme?

Obviously there is a place for discount to market “for sale” products, as part of the affordable housing mix on a major project, and obviously local connection/key worker restrictions need to play an important role, but let’s

⁃ be really careful that the First Homes concept does not squeeze out other affordable housing options for which there may be greater need, or through inefficiency place a greater strain on project viability and consequently the overall monies available for affordable housing

⁃ ensure that the regime is loophole-proof, straight-forward and fair, however mutually inconsistent those aspirations may be (cf CIL)

⁃ (above all else) learn from that Starter Homes failure.

Simon Ricketts, 29 February 2020

Personal views, et cetera

Beauty Duty

The accelerated planning green paper will be published in November 2019.” (MHCLG press release, 1 October 2019).

Later this year I will publish a White Paper on planning reform, an objective of which will be a simpler and faster system for the benefit of everyone, including homeowners, and small and medium-sized builders” (Robert Jenrick, 13 January 2020, during Commons debate on new homes).

These proposals have certainly lost their acceleration.

Of course the white paper could emerge at any time now, or be part of the now traditional cohort of budget-accompanying announcements on 11 March 2020 (MIPIM week too…). But actually why not take a little longer so as to reflect on the recommendations in the final report of the Building Better Building Beautiful Commission, Living with Beauty: Promoting health, well-being and sustainable growth (30 January 2020)?

For a report on beauty it’s a bit of a beast, at 190 pages.

I blogged here on the appointment of the Building Better Building Beautiful Commission in April 2019 and here on the Commission’s July 2019 report.

As with the interim report it is a wide ranging and discursive read, prickling with all manner of recommendations. It will take some time to assimilate. I almost pulled up at the first fenestration, but spent my commutes yesterday cantering once through the whole document, before then reading the “planning” section in more detail. (I had been to three preparatory discussion sessions held by Commission member Adrian Penfold, who led on this strand. The sessions were in fact extremely interesting with a wide range of perspectives and Adrian obviously has unparalleled experience – the discussion was practical, and action-orientated). I noted down some wider questions and dipped back into the main document in more detail this morning to see if they had been addressed.

The report sets out its overall aims in three exhortations:

• Ask for Beauty

• Refuse Ugliness

• Promote Stewardship

These aims are to be “embedded in the planning system and in the culture of development, in such a way as to incentivise beauty and deter ugliness at every point where the choice arises” by way of eight objectives:

1. Planning: create a predictable level playing field

2. Communities: bring the democracy forward

3. Stewardship: incentivise responsibility to the future

4. Regeneration: end the scandal of left behind place

5. Neighbourhoods: create places not just houses

6. Nature:re-green our towns and cities

7. Education: promote a wider understanding of placemaking

8. Management:value planning,count happiness, procure properly

Each objective leads to a series of recommendations, or “policy propositions”.

For instance these are the ten policy propositions under the “planning” objective, even though many of the policy recommendations under the other objectives would equally call to be delivered by way of changes to the planning system. I don’t see any alternative to setting out the “planning” propositions almost verbatim:

Policy Proposition 1: ask for beauty. The National Planning Policy Framework (NPPF) defines the planning system’s purpose as ‘to contribute to the achievement of sustainable development.’

a. References to the importance of ‘placemaking’ and ‘the creation of beautiful places’ should be placed in chapter 2 as well as in chapter 12 of the NPPF, particularly in paragraphs 7 to 10, at the end of the first sentence of paragraph 17 and in paragraphs 72(c) on new settlement, 73 on buffers and 91 on green infrastructure. Beauty and placemaking should be strategic and cross-cutting themes.

b. References to ‘good design’ in the NPPF should be replaced with ‘good design and beautiful places’ particularly in the section on ‘achieving sustainable development’

c. Beauty and placemaking should be embedded more widely across relevant government strategies. They should also feature in relevant forthcoming government legislation, such as the Environment Bill.

d. We have heard much support for the government’s recent guidance document Design: process and tools, as well as its new National Design Guide (one public sector planner told us it ‘would make things a lot easier’). We warmly endorse both the National Design Guide’s aim – to illustrate ‘how well-designed places

that are beautiful, enduring and successful can be achieved in practice’ – and its contents. We particularly commend its focus on character and identity.

d. Local planning authorities should take up the strong encouragement in paragraph 34 to use the National Design Guide to prepare their own local plan policy, guidance and area-wide or site-specific codes in line with clear evidence of local preferences (see chapter 7).

• Where relevant, a similar aim should be embedded in other planning policy guidance.

• The National Design Guide could be improved further with even more emphasis and more visual explanation on façade quality and materials (the importance of elevational proportions, symmetry, window treatment, storey heights and a façade with both complexity and composure are not mentioned). The guide could illustrate more the importance of block size, type and structure (above all blocks with clear backs and fronts and the way in which houses face the street so that boundaries contain façades). The guide could also focus more on height to width (or enclosure) ratio and street proportions, grain and plot size and effective ways to meet the challenges of parking provision. It should contain even more on street trees and the need for a hierarchy of public squares, streets and green spaces.

e. Paragraph 79e of the NPPF states that planning permission can be given for isolated houses in the countryside where design is ‘truly outstanding or innovative’. This opens a loophole for designs that are not outstanding but that are in some way innovative in these precious sites. The words ‘or innovative’ should be removed. In cases like these, we should always insist on outstanding quality.

Policy proposition 2: expect net gain not just ‘no net harm.’ The planning system operates on the principle of minimising harm. The important paragraph 130 of the NPPF should be reworded to say:

‘Development that is not well designed should be refused. Well-designed development will take the opportunities available for improving the character and quality of an area and the way it functions, be properly served by infrastructure and will contribute towards meeting the needs of the wider community. It will also take into account…’

Policy Proposition 3: say no to ugliness. We have found good examples of schemes being turned down by the Planning Inspectorate on well-argued design grounds after developers appealed against rulings from local authorities.

Such examples should be publicised, celebrated and used to encourage beautiful and popular placemaking and they should encourage neighbourhoods or local media to argue for less unpleasant development. Local planning authorities should feel the full support of government when they reject ugliness. Government and the Planning Inspectorate should have a consistent message about placemaking.

Policy Proposition 4: discover beauty locally. Local authorities, neighbourhood forums and parishes should be strongly encouraged to embed the national requirement for beauty and placemaking from the outset, before any decisions are made about allocating land or making development control decisions. What beauty means and the local ‘spirit of place’ should be discovered and defined empirically

and visually by surveying local views on objective criteria as well as from deliberative engagement with the wider local population. Where appropriate, more detailed design codes should also be included in local plan documents, supplementary planning documents or neighbourhood plans. […]

Policy Proposition 5: masterplan, don’t plan by appeal. Local planning authorities should be encouraged to take a more strategic and less reactive approach to their local plans. Steps to incorporate this would include:

• More clarity on what and where. The ‘plan-making’ section of the NPPF should make it clear in paragraph 16 that plan proposals should provide a clear indication of the scale and design features of development that is proposed, particularly on strategic sites. This could be elaborated in paragraph 23 (which deals with broad locations for development) and in the ‘non-strategic policies’ section in paragraphs 28-30.The soundness test in paragraph 35 should be reworded to read ‘d) consistent with national policy – enabling the delivery of sustainable development, including the creation of beautiful places..’;

• Thinking more broadly about optimisation. We recommend the addition of text in paragraph 123 of the NPPF on the importance of area-based masterplanning in assessing and meeting the need to optimise, whilst also creating beautiful places. The piecemeal site by site approach leads to poor outcomes.

• A process review. We recommend a review of the way in which sites are identified including the ‘call for sites’ process. The review should consider which process changes could reduce the adversarial consequences of the current approach, reduce the resource-pressure on local authorities and better encourage ‘the right growth in the right place.’

• A timescale review. It takes too long to prepare local plans, supplementary planning documents and area action plans. We recommend a detailed review of how the process of creating local plans can be speeded up. Ultimately, local plans should be quicker to write and ‘living documents’ which can be updated more readily when circumstances change.

• Thinking long-term as well as medium-term. We understand and respect why the government has increased the focus on five-year land supply. This has had the very welcome consequence of obliging councils to have local plans in place. However, a longer time frame is necessary when thinking about new settlements, urban extensions and infrastructure investment. We recommend that the phrase ‘within the context of a longer 30-year vision is’ added to paragraph 22 of the NPPF.

[ ]

Policy Proposition 6: use provably popular form-based codes. Local planning authorities should develop more detailed design policy interventions, such as provably popular form-based codes and

pattern books, as a basis for considering planning applications. We believe that form-based codes and non-negotiable infrastructure including green infrastructure (as with the Community Infrastructure Levy) are often appropriate ways to embed quality in a popular and predictable way. [ ]

• The government’s July 2019 guidance on plan-making…should be more specific, requiring a minimum level of detail.

• The local plan should apply the approach taken in the national planning practice guidance on design at the local level, reflecting local circumstances, by setting clear area-wide design criteria, and local planning authorities should consider adopting a co-ordinating code approach in the local plan, particularly for strategic sites. It should also define the requirement for masterplanned area action plans in order to coordinate development across sites in any defined growth area, as well as the application of a co-ordinating code or similar approach to allocated non-strategic sites. These should be prepared as supplementary planning documents or in Neighbourhood Plans prior to the commencement of any planning application process.

• Pages 23 to 28 of the government’s July 2019 guidance on plan- making deal with the evidence required when preparing a local plan. Other than ‘conservation and the historic environment’ there is no section which deals with evidence that might support design policies, such as character assessment. This should be included.

• The Town and Country Planning (Local Planning) (England) Regulations 2012 set out the legal requirements for local planning authorities when preparing local plans and supplementary planning documents. They specify their form and content very generally. There is no specific reference to design. There is scope to specify the minimum design policy level for different types of site.

• The government’s Design: process and tools guidance gives helpful and positive advice to local planning authorities on design policy and its associated tools. It also provides useful advice on assessment frameworks, design review and effective community engagement on design. The ‘What role can non-strategic

policies play?’ section refers specifically to the establishment

of local and/or detailed design principles for an area, including design requirements for site specific allocations. The wording might however be strengthened to move from encouragement (‘can’) to something closer to requirement, (‘should’ or, in some circumstances, ‘must’).

Policy Proposition 7: localise the National Model Design Code. We support the government’s proposal to publish a National Model Design Code, which will function as a template for local authorities to develop, their own codes in accordance with local needs and preferences and to support better urbanism and mixed use…

The model code should include the following elements:

• Design guidance relying on numbers, specifications and images more than words. The model code should define the segments, ratios, façade patterns or cross-sections that make for popular and well-designed places. Local authorities would not be required to accept these definitions in their own codes, but they would form

a template to help local planning authorities understand what they need to define. The national code should provide measured and illustrated exemplars of how all these good principles come together in street segments, public space segments, building and street patterns. These can be stylistically neutral and should take account of parking and servicing.

• Guidance on what goes where. A street hierarchy, and the difference between a good central, urban or suburban street (including levels of mixed use), needs to be set out and illustrated so that it is clear where different elements of guidance are most relevant in different types of place.

• Guidance on scales of development. The National Model Design Code should give examples of what is relevant for various scales of development so that local authorities are helped to be clear about what is (and is not) being scrutinised

• Guidance on turning the The National Model Design Code into a local code. The national code should contain a clear and straightforward suggested process to help turn it into local policy. This will need

to include surveying local preferences empirically and should lay great weight on harmonising with local vernaculars.

[ ]

Policy Proposition 8: require permitted development rights to have standards. There is scope for targeted and carefully drafted use of permitted development rights to free up the delivery of new development, whilst ensuring it achieves better placemaking. But we are not there yet. One way to keep the supply-side advantages of permitted development rights but with some basic standards, would be to move minimum home or room sizes into building regulations. This would prevent some of the worst excesses that have come to light in office to residential conversion. We support this but it is not enough.

The government should evolve a mechanism whereby meaningful local standards of design and placemaking can efficiently apply to permitted development rights. This is not possible at present under the current legal arrangement. It should be. Where it is appropriate, to build housing via permitted development rights or permission in principle should require strict adherence to a very clear (but limited) set of rules on betterment payment and design clearly set in the local plan, supplementary planning document or community code as set out above. If these rules are followed, then approval should be a matter of course. There are precedents for this. For example, permitted development rights for residential extensions requires matching materials.

The Commission recommends that adherence to established design guidance, coupled with a certification process, not unlike the Building Research Establishment Environmental Assessment Method (‘BREEAM’) but directed to the sense of place, is embedded into an overhauled ‘prior approval’ process. It is outside the scope of this report to undertake that drafting, but we consider it to be an important ‘next step’ following these recommendations

Policy Proposition 9: permit a fast track for beauty. If a robust design policy, which is based on community engagement and which has been properly examined, has been established, the detailed planning application stage should be relatively straightforward. The focus should be on compliance with the site-specific design policy, whether contained in the local plan or in a supplementary planning document.

[ ]

Policy Proposition 10: ensure enforcement. Where masterplans or designs are approved, it is those schemes that should be built – not a diluted version down the line. There should be more efficient management of conditions applications, of alterations and a greater probability of enforcement, with stricter sanctions where necessary. Clearer, shorter, more visual local plans should help, but additional ways to achieve this which we recommend include:

• Encouraging specificity on issues such as materials in detailed planning applications.

• Supporting the use of centres of excellence to aid local planning authorities’ enforcement teams.

• Strengthening enforcement penalties for a Breach of Conditions Notice from a maximum of £2,500 to perhaps ten times that. (Breach of Enforcement Notice is already unlimited). The Government should also consider permitting authorities to obtain proceeds from a Process [sic] of Crime Act order in relation to breach of condition notices.

• Tightening the approach and digitising the process of signing off the discharge conditions and regulating non-material and minor alterations. Might it be a requirement that building control sign-off cannot be achieved without adherence to design quality requirements?

• Involving enforcement teams in early discussions about the scheme. This would permit them to understand the relative priorities of members and officers, and the importance of the design features of a scheme. This appears to happen very rarely, if at all, at present.

Many of these recommendations appear to me to be practical and deliverable but obviously questions arise:

Are we all on the same page as to what is “beauty” or “good design”? Can such prescription be imposed in reality without stifling individual design responses? Are we not just feeding bullets to those who will oppose development, using whatever arguments come to hand?

The document says this:

Are there assumptions that arise from political or social outlook, or age? The report roots its stance by describing a “powerful consensus…concerning what people prize in the design of new developments, and about how beauty in human settlement is generally understood”, with passages on:

⁃ townscape

⁃ mixed-use

⁃ building to last

⁃ affordability

⁃ respect for nature

⁃ stewardship.

Much of this must be right, but, faced with specific choices, I am still certain that there is room for debate as to development choices.

The throw-away assumption in the document is that tall buildings are bad:

“...there is much evidence for the view that we will not normally achieve the kind of humane densification that we are looking for by ‘building upwards’ – evidence that has not always been taken into account in recent urban developments, especially in London and Bristol. We need to weave the ground-level fabric more closely, not to stretch it to the skies.”

There is an equivalent dismissive reference to “iconic buildings”, immediately followed by a photograph of the Walkie Talkie:

“...people may not want an ‘iconic’ building in their immediate environment if it does not fit in or harmonise. For many planning protesters, the best outcome is also the outcome that will not be noticed.”

Do we dream of a bland and pleasant land? Where is the room for rebel buildings, for surprises? (I spotted nothing on the desirability or otherwise of preserving, for instance, outstanding examples of brutalist or post modern architecture – little of which would have got past the beauty police). And, whilst the use of traditional materials is eulogised, is this not, in many circumstances, to descend to pastiche and facadism? A logistics warehouse is what it is, or it should be.

Given the difficult value judgments required, are local planning authorities sufficiently resourced to fulfil the central role that the Commission envisages for them?

It is going to be a fascinating debate and, given the warm reception that the Secretary of State has already given to the recommendations (one of which is that he should become the Secretary of State for Place – I would certainly support a change of MHCLG to MoP), I predict that much of the document will find its way into the Government’s agenda. Better this, in my view, than a curious document, almost as long, published earlier in the week by Policy Exchange, Rethinking the Planning System for the 21st Century.

To my mind, we need to move on from the Conservatives’ 2010 mantra that “the planning system is broken”. It either is not, and never has been – or they have had long enough to mend it (and it beggars belief that the Policy Exchange can be advocating “a clean break with the land use planning system introduced in 1947”, unless you read it as part of a wider free market attack on all associated post-war settlements of that time). I tend to favour the former – the planning system is not broken – and the system can indeed accommodate greater attention to be paid to beauty. However, whilst there are always improvements to be made (including some of those recommended by the Commission) there are always two more fundamental influences on outcomes:

stewardship, dealt with well in the the Commission’s report:

We are persuaded, from a wide pool of evidence, that on-going involvement by the landowner very often leads to development which is better for residents’ well-being, more popular and, ultimately, more valuable. Currently, however, most landowners sell or ‘option’ their land to developers or sign deals with land promoters.. If we are to achieve this stewardship model, there are six issues that must be confronted:

1. We need to encourage management structures that can guide longer-term placemaking projects or stewardship projects, as well as the expertise to staff them;

2. We should support and encourage sources of patient capital investment;

3. We need to address ways in which the tax code unintentionally discourages landowners and developers from putting together stewardship projects;

4. We need to use the spatial planning system to encourage the right stewardship projects and infrastructure in the right place (using improving geospatial data where possible);

5. We need to help public bodies pool their land with private landowners for long-term schemes; and

6. We need to encourage competent long-term stewardship (or trusteeship) of the result.

financial resources, the relevance of which is acknowledged but not given particular prominence in the report, by which I mean: both a recognition that is wishful thinking to assert that good design does not cost (in terms of compromises on height and massing, on materials and in the use of appropriate professionals at every stage) and a recognition of the additional resources, including additional skillsets, required by local planning authorities.

My condolences to Sir Roger Scruton’s family. With Nicholas Boys Smith and the other Commissioners, he has produced an elegant and thought-provoking, but practical, piece of work. Let’s not dismiss it out of hand, but equally, as with any contemplated changes to the planning system, let’s be sure that the consequences of what is proposed are fully understood before we hand-chisel again into our battered, much extended, poorly maintained, but still in its own way beautiful, planning system.

Simon Ricketts, 1 February 2020

Personal views, et cetera

Elephant, Dove, Old Oak, RICS

I thought I would start 2020 by trying to establish some common ground, before then mentioning what happened shortly before Christmas in relation to the Elephant & Castle and Old Oak projects, both controversial in different ways. The questions are long but I hope that the answers are short.

Do we all agree that…

1. more housing is needed for those who cannot afford homes that are being built by the private sector in their local area, even when these are required to be sold or let at significant discounts to market rates – and that what we call that housing (eg social housing/socially rented) and the nature of the body that delivers and manages it (housing associations or other registered providers, local authorities) are secondary issues?

2. the current system of seeking to require developers to deliver that housing (whoever then manages it) is not working and is hugely inefficient, in that: (1) local policy expectations set out in local plans are often not met, due to those expectations being determined not to be viable – leading to prolonged negotiations and local objection (2) the complexities and multitude of inputs to any negotiated section 106 affordable housing package, often including intricate mechanisms to provide for later reviews of the viability position, are at best a costly distraction for all parties (needing to be tooled up with valuation and QS professionals) and at worst are prone to lead to huge delays and, over time, the prospect of renegotiation where the negotiated outcome is not sufficiently attractive to funders, or where (almost inevitably) circumstances have changed during the long course of the process?

3. it is in the public interest for communities within developments to be socially and economically diverse?

4. the system worked more easily when much more Government money was available to support affordable housing by way of grant (without grant obviously a requirement to deliver social housing has a huge impact on the viability of a scheme) and that we need to get back to a system that (1) is simple (2) delivers housing that is truly affordable for those who need it (3) is efficient and (4) does not delay development more generally?

5. government (ie our) money needs to be spent where it can have most beneficial impact and is most needed?

There has been a lot of government tinkering but don’t we have to get back to those fundamentals? I’m not sure that the Government’s promised Social Housing White Paper is going to get us there, given the absence of relevant detail about affordable housing in the Conservatives’ manifesto – talk about owning first homes is a world away from the very different challenges faced by so many.

I’m sorry to be a cracked record – see my 28 May 2017 blog post Affordable Housing Tax or 4 November 2017 blog post Viability Assessment Is Not A Loophole, It’s A Noose. We could look at the idea of expanding CIL to include a social housing contribution, so that local authorities can deliver or procure it, with the option of provision on site counting as works in kind? But I’ve previously been against further rolling out another complex and inefficient regime, ie CIL, and most authorities, hollowed out and stretched as they are, are not currently in any position to deliver or procure social housing at scale. Instead, personally I would simply prefer that we go back to the old way – grants to providers so as to reduce the impact on viability for the developer of providing social housing.

In the meantime, we have to make the current system work. My 8 June 2019 blog post The Bottom Line: Updates On CIL And Viability reported on the RICS professional statement on financial viability in planning, which came into effect on 1 September 2019, and mentioned the revisions made to viability passages of the PPG by the Government on 9 May 2019, reflecting changes to the NPPF that seek to ensure, amongst other things, that detailed viability examination takes place at plan-making stage rather than when applications come forward.

The RICS professional statement sets out the professional responsibilities of the surveyor in the viability appraisal process, to seek to ensure that the surveyor operates with professional independence and integrity throughout. The RICS is now consulting from 13 December 2019 until 9 February 2020 on a draft guidance note Assessing financial viability in planning under the National Planning Policy Framework for England, 1st edition that seeks to set out the methodology to be applied by those professionals, so as to give effect to Government policy.

We are not seeking comments contrasting the government framework with a market-based appraisal. Comments should focus on whether our draft guidance gives effect to government policy and practice guidance, in an administratively efficient way, in order to deliver the objectives of the NPPF.”

Make your views known.

In the meantime…

Elephant & Castle

Delancey’s proposed redevelopment of the Elephant & Castle shopping centre and London College of Communication has long been controversial. It proposes a large mixed-use development comprising a range of buildings of up to 35 storeys, with a mix of uses including 979 dwellings (proposed to be for rent rather than sale) and accommodation for retail, office, education, assembly and leisure along with a remodelling of the London Underground station. One of the lines of attack for objectors, including the 35% Campaign, has been the perceived lack of “genuinely affordable” housing.

Planning permission was granted by the London Borough of Southwark on 10 January 2019. Just before Christmas, in Flynn v London Borough of Southwark (Dove J, 20 December 2019), the High Court rejected a crowdfunded challenge to the permission brought on behalf of the 35% Campaign. The grounds of challenge all turned on the affordable housing deal that Southwark struck in the section 106 agreement with the developer.

The case doesn’t turn on any particularly interesting legal principles or make any new law. But the facts, set out in careful detail by Dove J, illustrate precisely the concerns that lay behind my attempt just now to establish some common ground:

The policy background is not straightforward, with a changing position both at borough level and at London Plan level.

The Mayor has set out criteria in his 2017 affordable housing and viability SPG for different tenures of affordable housing, including social rent (target rents determined through the national rent regime), affordable rent (rent controls requiring a rent of no more than 80% of the local market rent), intermediate (available for rent or sale at a cost above social rent but below market levels – and eligible only to households whose annual income is within a defined range) and intermediate London Living Rent (only available to households renting with a maximum income of £60,000 without sufficient current savings to purchase a home within the local area).

The adopted London Plan requires boroughs to seek the “maximum reasonable amount of affordable housing…when negotiating on individual private residential and mixed use schemes, having regard to” a number of factors, including “development viability” and the “availability of public subsidy”.

Within the Elephant & Castle area, Southwark’s adopted plan seeks a minimum requirement of 35%, on the basis of a split of 50% social rented and 50% intermediate housing. Its emerging plan seeks, in relation to build to rent developments, a different tenure split for the 35%: social rent equivalent (ie social rent level but not managed by registered provider) 34% minimum, affordable rent (aka discount market rent) capped at London Living Rent equivalent 52% minimum, affordable rent (aka discount market rent) for household incomes between £60,000 and £90,000 per year 14% minimum. The lack of social rent reflects the specific nature of build to rent developments, where it is more efficient for all of the housing to remain under single management rather than for a separate registered provider to be introduced.

At the time Delancey’s application first went to committee on 16 January 2018, its proposal was 36% affordable housing based upon habitable rooms, with the 36% made up as follows: 10% social rent equivalent, 46% London Living Rent, 43% discount market rent. The non policy compliant offer (in terms of tenure split) was based on an agreed viability assessment. Despite a recommendation for approval, members deferred a decision until a meeting scheduled for 30 January 2018 at which they intended to formulate reasons for refusal. The day before the follow-up meeting the developer made further proposals in relation to the affordable housing offer and the application was deferred to a subsequent meeting.

The revised proposal was to replace 33 social rent equivalent units with 74 socially rented units, all to be located on the western part of the development and to be owned and operated either by the borough or by a registered provider. This changed the tenure split (of the 35% affordable housing dwellings) to: social rent 24.9%, London Living Rent 27.9%, discount market rent 47.2%.

In June 2018 the offer was increased again. The developer’s consultants indicated that following “in-principle agreement from the GLA to provide grant funding towards the proposed scheme” the number of social rent units could be increased to 116 homes, or 38.1% of the 35% of the units that were to be affordable.

The application was approved at a committee meeting on 3 July 2018. It was acknowledged in the report that the proposed tenure split was still not policy compliant but was justified by way of the agreed viability appraisal. The report also noted that there would need to be a fallback arrangement in the section 106 agreement to cater for the possibility that the developer might choose after all to develop the western part of the development on a for sale rather than for rent basis (in which case the affordable housing requirement for that part of the site would return to 50% social rented, 50% intermediate).

If all of this does not start to give an idea of the inevitable complexity of negotiations on a scheme such as this, then consider the viability appraisal. As is common with a significant longterm development, where application of the more straightforward benchmark land value plus developer’s profit approach does not reflect accurately the financial modelling of a project over time, viability was judged against a minimum internal rate of return for the developer.

The latest RICS draft guidance defines internal rate of return (or “IRR”) as follows:

The rate of interest (expressed as a percentage) at which all future project cash flows (positive and negative) will be discounted in order that the net present value (NPV) of those cash flows, including the initial investment, be equal to zero. IRR can be assessed on both gross and net of finance.”

However, unless I have missed it, there is no guidance anywhere as to when an IRR approach is appropriate and how to arrive at and test the inputs and modelling.

The agreed benchmark was 7.15% IRR, with annual growth to 11% over the construction period. Review mechanisms in the section 106 agreement provide that 50% of any excess are to be applied to increasing the affordable housing provision up to a policy compliant level/tenure split.

The claimant had three grounds of challenge. The first turned on an alleged inaccuracy in the way that the GLA’s offer of funding had been reported – it had not been formally confirmed and discussions were at an “in principle stage”. The second alleged that one of the detailed mechanisms in the section 106 agreement departed from the relevant head of term in the committee resolution. The third related to the mechanism in the section 106 agreement for determining the affordable housing to be provided if the western part of the site turned into a “for sale” development, but a deed of variation had been entered into after the challenge was brought, largely correcting the error that had been identified.

Dove J rejected each of the grounds, whilst accepting that each was arguable. (1) The report did not materially mislead members. (2) The section 106 mechanism was not outside the scope of the committee resolution (“True it is that the solutions arrived at are not a literal interpretation of paragraph 364 [of the report to committee], in that they do not include for the provision of land and a substantial cash dowry to construct the social rented units but, in my judgment, that was not required in order to remain within the scope of the delegation granted by the members”). (3) The approach to the fallback (“for sale”) scenario was “entirely rational and appropriate”. Part of the claimant’s criticism of the arrangements turned on whether the additional affordable housing in these circumstances should be social rented units rather than the social rented equivalent units provided for. The judge saw nothing relevant in the distinction:

In terms of the matters raised by the Claimant the quality of tenure enjoyed by tenants in social rented equivalent properties are, as the nomenclature suggests, equivalent to those in social rented properties. Of course, there may well be nuanced differences between them as a consequence of them being separately defined. Furthermore, they will be managed in different ways as the definition implies. Be all of this as it may, in my view the important point is that the requirement of the officers’ report was a review in terms of affordable housing, and whether the additional habitable rooms were to be provided as social rented or social rented equivalent accommodation was not identified as being in any way a critical point upon which the delegation to the officers of authority to enter into the section 106 obligation turned. Put another way, whatever may be the nuanced differences between social rented equivalent property and social rented units that was not identified as a key requirement in relation to the review mechanism contemplated were the developer to take up the fall-back scenario.”

Will the new guidance make any of this more straight forward? I doubt it. Would proper funding for social rent and social rent equivalent housing? Of course it would.

Old Oak and Park Royal Local Plan

The recent NPPF and PPG changes of course seek to move the viability spotlight to the point at which sites are allocated for development. The Old Oak plan was examined last year under the previous NPPF but viability matters were still centre stage and the inspector’s findings may be an indicator of the detailed scrutiny that is likely to be given to the viability in particular of strategic sites (taken together with proposed policy requirements in terms of infrastructure delivery and affordable housing).

One of the key issues for the inspector was whether the proposed allocation of the 54 acre Cargiant site for residential and associated development was viable. Cargiant had itself attempted development of its site in the past. It had concluded that it would be unviable to contemplate relocating or extinguishing its business and carrying out the development – and took the position that there was no reasonable prospect within the plan period of the Old Oak and Park Royal Development Corporation (“OPDC”) being in a position to carry out such proposals, even by resorting to compulsory purchase and even with the benefit of £250m Housing and Infrastructure Fund monies which had been agreed in principle to be allocated by MHCLG.

My firm acted for Cargiant and so I will restrict myself to pointing out the level of detail to which the inspector went in his interim findings on viability of Cargiant site proposal (10 September 2019) before concluding that the allocation would be unviable and therefore unsound.

The day after the general election, on 13 December 2019, the OPDC announced that it would change its proposals, which will now leave Cargiant in place:

New focus for Old Oak and Park Royal regeneration:

The Old Oak and Park Royal Development Corporation (OPDC) has today set out a revised approach to deliver tens of thousands of new homes and jobs through collaboration with major public sector landowners.

The regeneration of Old Oak, Park Royal and surrounding areas in west London, has the potential to deliver 25,500 new homes and 65,000 jobs over the next 30 years. OPDC has already approved plans for over 5,000 homes including 1,500 already completed or being built.

The shift in approach has been triggered by recent, rapid increases in industrial land values in west London which mean that it is currently not financially viable to deliver OPDC’s early regeneration plans at Old Oak North. This area, close to the planned new HS2 interchange station, includes the 54-acre site that is owned and operated by Cargiant, which had originally been earmarked for development.

Earlier this year, the Planning Inspector, in his interim report on the OPDC’s draft Local Plan, de-designated the Cargiant site from Strategic Industrial Land, but also concluded that Old Oak North had become commercially unviable for residential-led development at this time.”

Whilst this situation might be taken to be an example of how viability matters can indeed in practice be taken into account at the plan-making stage, I do have concerns:

⁃ There is now a bigger onus on authorities to carry out proper viability work, including work to a sensible level of detail on strategic sites (albeit often with assistance from those promoting those sites for development), and is it actually going to be done?

⁃ Where it is not done, delays will occur in the examination process. At Old Oak, the necessary work had not been done and there was a significant hiatus whilst it was commissioned.

⁃ Development proposals are often not sufficiently worked up, at the stage that the plan is being prepared, so as to enable a sensible viability appraisal to be undertaken. And will developers be prepared always to come clean at the allocation stage as to the challenges they are facing in making the numbers stack up?

⁃ Will there always be participants in the local plan examination process with the motivation and resources to put authorities to proof on the work that has been carried out? If Cargiant hadn’t taken its stance (entailing lawyers and a team of consultants to challenge much of the inputs) I suspect the allocation would have been confirmed without challenge – and then proved over time to be undevelopable.

The next blog post will be shorter, I promise.

Simon Ricketts, 4 January 2020

Personal views, et cetera

Pic credit: Bizarro Comics

LL Cool RJ

This is about Robert Jenrick’s 23 October 2019 announcement of the ‘most ambitious heritage preservation campaign for 40 years‘.

Whilst we are in political lock-down, there is time to look at it in more detail and in particular at the concept of locally listed buildings, central to the campaign that Jenrick laid out as Communities Secretary, jointly with the Culture Secretary Nicky Morgan.

The following initiatives were announced, now of course all on pause:

⁃ “The new campaign will challenge every single local authority across England to draw up lists of buildings of significant historical and cultural value to an area, ensuring important local monuments are no longer left neglected and unloved.”

⁃ “Local people will be empowered to nominate heritage assets which are important to them and reflect their local area and identity, supported by a team of heritage experts, funded by £700,000 to help 10 English counties identify areas which need protecting.

⁃ “Historic England will launch a national campaign on local identity getting the country talking about what defines our heritage.

⁃ “The Communities Secretary is taking the direct step of contacting every parish council in England to make sure they are conserving the buildings which have played a remarkable role in their local history and need our support.

⁃ “In addition, a local heritage champion will be appointed to spearhead the campaign and encourage councils to increase local listings.”

I was at the announcement on 23 October, made at a Policy Exchange and Create Streets breakfast event (my, I had imposter syndrome). The transcript of his speech makes interesting reading, particularly the passages I have emboldened:

“I want to encourage local communities and heritage groups to get far more involved in identifying the historic buildings in their area…

… so they can be at the heart of the process of recognising, defining and protecting the buildings they truly value.

Because we know that, where buildings are on local or national heritage lists, they are often shielded from development.

And that, again, builds consent for development and builds better communities.

Until now, this has mostly been the domain of our local planning authorities.

But only 50% of planning authorities even have these lists, and where they do, they are often out of date or incomplete.

This isn’t good enough.

Protecting the historic environment must be a key function of the planning system.

All local planning authorities must play a far more proactive role in supporting local communities and heritage groups to identify and to protect more historic buildings.

In the 1980s, Michael Heseltine reinvigorated our national heritage lists. And now I want to complete that work and to do the same at the local level.

As a first step, I am announcing, what I think will be the most ambitious new heritage preservation campaign since Michael’s work 40 years ago.

We will start with 10 English counties and support them to complete their local lists and to bring forward more suggestions for the national statutory lists as well.

It will see local people coming forward to nominate the buildings and community assets they cherish – protecting them for future generations.

We’re backing this programme with £500,000 of government investment – giving counties the tools, funding and expertise they need to shift their approach to heritage and conservation up a gear.

To help us do this, we will appoint a National Heritage Advisor to support this vital work and to make sure that Government is actually delivering. I want to thank Marcus Binney, Simon Jenkins and the SAVE team for their input and inspiration for this initiative.

We hope this will help boost conservation efforts in these counties, enabling fresh engagement with local communities and heritage groups.

But our work doesn’t stop there.

We are also working with the Department for Culture and with Historic England on developing an entirely new heritage conservation programme. We are going to be supporting Historic England to develop a new process to enable faster community nominations of important heritage assets in the new Heritage Action Zones.”

If the new Government returns to this thinking, great care is needed in my view to manage the public’s expectations, in two ways:

1. What is local listing in the first place? It is not statutory listing.

2. What criteria are to be applied before buildings are locally listed.

Obviously, locally listed buildings do not qualify for the statutory protection that is given to listed buildings and conservation areas, either by way of additional consenting procedures or the specific policy tests to be met in relation to those statutorily designated heritage assets.

Locally listed buildings comprise non-designated heritage assets for the purposes of the NPPF.

The glossary to the NPPF defines “heritage asset” as follows:

A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. It includes designated heritage assets and assets identified by the local planning authority (including local listing).”

The NPPF policy test:

The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining [a planning] application. In weighing applications that directly or indirectly affect non-designated heritage assets, a balanced judgement will be required having regard to the scale of any harm or loss and the significance of the heritage asset.”

Local plans and neighbourhood plans may well have more locally specific policies in relation to locally listed buildings.

The Government’s planning practice guidance explains how non-designated heritage assets (including locally listed buildings) are to be identified. I have emboldened the passages which are potentially in conflict with the approach identified by the Secretary of State:

There are a number of processes through which non-designated heritage assets may be identified, including the local and neighbourhood plan-making processes and conservation area appraisals and reviews. Irrespective of how they are identified, it is important that the decisions to identify them as non-designated heritage assets are based on sound evidence.

Plan-making bodies should make clear and up to date information on non-designated heritage assets accessible to the public to provide greater clarity and certainty for developers and decision-makers. This includes information on the criteria used to select non-designated heritage assets and information about the location of existing assets.

It is important that all non-designated heritage assets are clearly identified as such. In this context, it can be helpful if local planning authorities keep a local list of non-designated heritage assets, incorporating any such assets which are identified by neighbourhood planning bodies. (Advice on local lists can be found on Historic England’s website.) They should also ensure that up to date information about non-designated heritage assets is included in the local historic environment record.”

The content of Historic England’s advice on locally listed heritage assets is identified as “under review” (presumably linked to the Government’s announcement).

More detailed practical advice is contained within Local Heritage Listing: Historic England Advice Note 7 and within Civic Voice’s local heritage list guidance.

There is a lot of advice already out there! Is it just that the lack of local government resources over recent years has meant that too little attention has been given to local lists? Or is it that the Government is advocating a wholly new, “don’t listen to the experts, what buildings in your community do you cherish?” approach?

I do worry that Jenrick is in danger of overselling local listing by describing it as a process to seek to ensure that buildings are protected “for future generations” or that is likely to lead to them being “shielded from development”. Local listing is presently an objective but relatively light-touch process. The Government can’t have it both ways.

If the strategy is to let a million local listings bloom through a less objective, more community based process, plainly the policy tests to be passed, in relation to proposals that might affect them, need to be loosened: brownfield development will become even more difficult. Or if the strategy is to maintain the policy tests, surely we must ensure that that buildings are only locally listed on “sound evidence”?

And what do we think of the suggestion in the speech that this initiative “builds consent for development”?

Simon Ricketts, 9 November 2019

Personal views, et cetera

Heritage PS: Did you see that Yorkshire case, R (James Hall & Co) v Bradford MDC (HHJ Belcher, 1 November 2019), which confirmed that “negligible” or “minimal” harm still equates to “harm” for the purposes of the heritage tests in the NPPF? Thumbs up for the obviousness of the conclusion, to a question which has previously generated much learned London discussion. A bit of a “you can’t be negligibly or minimally pregnant” moment.