You’ve Been Frameworked!

By the Government’s 10 May deadline, over 20,000 responses were received to the draft revised NPPF, albeit apparently almost half of them duplicated campaign responses (for example the TCPA-led campaign to reinstate the express support for garden city principles that is in the current framework). The final version is expected in the week beginning 16 July. As many have pointed out, there surely is not enough time for any detailed consideration of all of that thinking, in the sliver of time between the initial process of collation and the final process of sign-offs and proofing?

Given that for development control purposes the policies in the revised framework will have immediate effect, perhaps it is as well if there are few surprises in the final version.

In England the 2012 NPPF has become a familiar (sometimes irritatingly vague) friend, but this is an appropriate point perhaps to remind ourselves of the peculiarities of the concept, born of the reforms introduced by the incoming coalition government in 2010, that swept away centrally approved regional spatial strategies and a mass of existing national policy statements and guidance, in the name of a Conservative version of localism as well as less prescriptive ways of working across local authority boundaries (the duty to cooperate, LEPs). The extent to which that system is or is not delivering is analysed well in this month’s interim report of the Raynsford Review of planning in England, but six years on we now take for granted the various oddities of the document, in that it is:

⁃ non-statutory – with no formal prescriptions as to its content or the procedure for its preparation and review – and with an uncertain formal status: in development control matters its principles are very much subsidiary to any relevant policies in an up to date development plan

⁃ determinedly non-spatial, with of course not a whisper of the “regional” word, not a whisper of where in the country growth might be more or less appropriate, or as to differences of approach in London and the core cities as opposed to rural communities- and, as a consequence of that lack of spatial policy making, the lack of any formal sustainability appraisal of policy options given that strategic environmental assessment requirements are not engaged.

⁃ devoid of top-down targets, in relation to housing numbers for example, which are left to percolate up from a myriad of contentious local plan processes, with until now no standardised approach as to any methodology for assessing local housing needs

⁃ not co-ordinated in any way with national economic or infrastructure investment priorities

⁃ immutable in the face of difficulties of interpretation and changed priorities, whilst shadowed by much more detailed planning practice guidance that has been subject to constant tinkering

⁃ despite its best intentions, relatively impenetrable I’m sure to non-planners.

I only practise in England. It is sometimes a shock to look at differing approaches being taken in other parts of the United Kingdom, as well as in Ireland. Whether as part of the NPPF or as a separate document, our unique choice is not to have any form of spatial plan for our country. Odd isn’t it?

Scotland

In Scotland, the National Planning Framework (NPF) is currently reviewed every five years and guides the preparation of Scottish planning policy, by setting out a strategy for Scotland’s spatial development and the priorities for that development. It is prepared pursuant to the Planning etc. (Scotland) Act 2006.

The current Planning (Scotland) Bill would have the effect of incorporating Scottish planning policy into the NPF, which would then only be reviewed every ten years, and thereby putting Scottish planning policy, in addition to the NPF, on a statutory footing. The NPF would become part of each local authority’s development plan

The Scottish Parliament’s Local Government and Communities Committee published its stage 1 report on the Bill on 17 May 2018, broadly supporting the proposals whilst seeking for the Scottish Parliament to be consulted on NPF changes and for the NPF to have a “clear read across to funding arrangements“.

The next version of the NPF, NPF4, is expected in June 2019, once the new arrangements have come into law. NPF3, “Ambition – Opportunity – Place”, was published in 2014. It is entirely different in character to the English NPPF, particularly in its spatial focus, and was the subject of detailed strategic environmental assessment.

Wales

The framework for Welsh land use planning policy comprises Planning Policy Wales (Edition 9, November 2016) supplemented by a series of Technical Advice Notes (TANs) and Minerals Technical Advice Notes (MTANs). There is also the Wales Spatial PlanPeople, Places, Futures, last updated in 2008.

The Welsh Planning Directorate has begun work on the production of a National Development Framework (NDF). The NDF will set out a 20 year land use framework for Wales and will replace the current Wales Spatial Plan.

Northern Ireland

Northern Ireland has its Strategic Planning Policy Statement for Northern Ireland -Planning for Sustainable Development (SPPS) (September 2015), published by its Department of the Environment, alongside its Development Strategy 2035 (March 2012), published by its Department for Regional Development.

The SPPS reflected the new tier-tier system which had been introduced, devolving various planning functions to local authorities whilst retaining for the Department of the Environment responsibility for regional planning policy, the determination of regionally significant and called-in applications, and planning legislation.

However, best laid plans and all that. Following the current dissolution (effectively since January 2017) of the Northern Ireland Assembly, its Departments have no minister in charge of them. As a result of the ruling of the Northern Irish High Court this month in the Colin Buick case, the full ramifications are now plain: absent a minister a Department is not in a position lawfully to exercise the powers specifically given to it.

In Buick, the decision of the Department for Infrastructure to grant planning permission for a major waste disposal incinerator, promoted by the Arc21 consortium of local authorities, was quashed:

“I have also noted the argument made in the papers that the delay in concluding a determination of the Arc21 planning application is impacting upon the implementation of public waste and environmental development at national, European and international level. However, the entire programme for government is on hold whilst the current impasse continues. This is extremely unfortunate. However, I do not consider that the exigencies of the current situation are an adequate justification for the course that has been taken. The commendable motivation and aims I refer to cannot override the proper construction of the statutory regime which this case requires.”

This presents a major constitutional and political dilemma. Until such time as the assembly can resume its work, how are significant decisions, both as to plans and projects, to be progressed in Northern Ireland? The Northern Irish planning system is currently broken, in a way which (for all the doom and gloom of the Raynsford review analysis) the English system is not.

Ireland

Finally, the Irish government has published its strategic planning and development framework, Ireland 2040, which comprises a national planning framework alongside its national development plan 2018 – 2027.

Its framework is very definitely spatial, unlike its 2002 predecessor document. The document refers to “…the situation that had arisen by the end of the 2000’s, when there was enough land zoned for a population of 10 million people in Ireland, but not located where required. We cannot continue with such a lack of focus.”

It directs the relative levels of growth it expects for its regions and its gestation has been far more controversial than has been the English draft revised NPPF, no doubt because it tackles difficult questions. There is a good summary of the document by Roger Milne in The Planner https://www.theplanner.co.uk/news/news-analysis-ireland’s-npf-sets-out-its-stall-on-joined-up-planning-and-development (19 February 2018). It will have a statutory basis once the Planning and Development (Amendment) Bill currently before the Seanad is enacted.

Lastly, it should be noted that there is a Framework for Co-operation – Spatial strategies of Northern Ireland and the Republic of Ireland (24 June 2010).

Back to England, with ad hoc national interventions and initiatives, seemingly little structured coordination as between on the one hand what the planning system can achieve and one the other hand any strategic approach to investment and funding, and reliance on many permutations of local alliances and forms of joint working. I certainly agree with many of the criticisms set out in Nick Raynsford’s interim report (whilst the direction and practicality of the solutions flagged may be open to question).

Let’s see how we get on shall we? Special, but determinedly not spatial.

Plans that either come to naught or half a page of scribbled lines

Hanging on in quiet desperation is the English way
The time is gone, the song is over
Thought I’d something more to say
.” *

Simon Ricketts, 19 May 2018

Personal views, et cetera

*Mason, Walters, Wright, Gilmour

Pointers From Parkhurst?

Parkhurst Road Limited v Secretary of State (Holgate J, 27 April 2018) is a complex analysis by the High Court of issues relating to viability appraisal. Indeed Holgate J concludes an unusual postscript (paragraph 142 onwards) to his judgment by expressing the hope that “the court is not asked in future to look at detailed valuation material as happened in these proceedings“.

The Parkhurst Road dispute has indeed been protracted, to say the least.

Parkhurst Road Limited had purchased the site in May 2013 for £13.25m from the Ministry of Defence, the site having been allocated by Islington Council as a “site for intensification for residential accommodation to help meet housing need in the Borough“.

An initial development proposal for 150 homes, reduced to 116 homes, was refused by Islington in October 2014 and an appeal was dismissed on design grounds in September 2015 following a six day inquiry. There had been dispute about viability issues at that inquiry but the inspector had been satisfied with the appellant’s benchmark land value position of £13.26m, which would have led to a 14% affordable housing commitment (16 homes). He considered that market comparables relied on by PRL showed that the price paid by PRL for the site “was not of a level significantly above a market norm“. Islington had not accepted the inspector’s approach to viability (pointing to a circularity inherent in relying on market evidence of comparable transactions to the extent it may not have been adjusted to reflect the requirements of relevant planning policies) but had not challenged it, given that the appeal had been dismissed in any event.

A revised scheme was then brought forward in January 2016, for 96 homes, with the design issues resolved, but with no affordable homes, on the basis that the viability of the scheme could no justify it. Again the application was refused, effectively solely on viability grounds, due to an asserted failure to maximise provision of affordable housing as against the council’s borough wide strategic target of 50%. PRL again appealed and by the time the inquiry closed in March 2017 after nine sitting days, the position was that PRL were arguing for a reduced benchmark land value of £11.9m and proposing that 10% of the homes should be affordable housing. Islington was arguing for a benchmark land value of £6.75m, leaving headroom for 34% affordable housing. The council’s case was based on an approach of relying on a low existing use value with a premium added (EUV+). PRL’s case was based on using market signals from other transactions, disregarding transactions “which are significantly above the market norm“.

Holgate J was told “that the two decision letters on the Parkhurst Road site have generated a good deal of interest amongst planning professionals, as if either decision could be taken as laying down guidance of more general application on the approach to be followed where development viability and affordable housing contributions are in issue.”

He throws cold water on that suggestion:

It is important to emphasise that that is not normally the function of a decision letter. The Inspector’s task is to resolve the issues which have been raised on the evidence produced in that appeal. The Inspector is not giving guidance on what course should generally be followed, even in cases raising the same type of issue. First, the application of policy often involves a good deal of judgment and second, the circumstances of an appeal (and the evidence produced) may differ quite considerably from one case to another (see eg. St Albans DC v Secretary of State for Communities and Local Government [2015] EWHC 655 (Admin)). There is a risk of attaching too much importance to the decisions of individual Inspectors, particularly where their conclusions were heavily dependent upon the circumstances of the cases before them and the nature of the evidence and submissions they received, with all their attendant strengths and weaknesses specific to that appeal. Reliance upon such decisions may take up a disproportionate amount of time and may distract parties from preparing suitable and sufficient information to deal with the circumstances and issues which arise in their own case.”

I summarised the inspector’s decision letter dismissing the appeal in my 24 June 2017 blog post Viability & Affordable Housing: Update.

The appellant challenged the decision on three grounds:

Ground 1 – the inspector erred in concluding that the council’s case was based on the EUV plus approach.

Ground 2 – the inspector did not address flaws which had been shown in the council’s valuer’s approach, applied the consultant’s method in a manner which was inconsistent with his understanding of it and failed to recognise substantial changes in the council’s case by the time the end of the inquiry was reached.

Ground 3 – criticisms of the way in which the inspector treated certain comparable transactions when arriving at his decision to accept the council’s benchmark land value figure.

Holgate J is not a judge to be cowed by disputes involving matters of valuation. He is after all President of the Lands Chamber in the Upper Tribunal and Planning Liaison Judge (ie basically the lead Planning Court judge).

He summarises Government policy on viability, quoting from paragraph 173 of the NPPF (with an interesting reference to compulsory purchase compensation principles when referring to the concept of a “willing seller”) and paragraphs 1, 19, 23 and 24 of the viability section of the Government’s planning practice guidance, asserts that the guidance places the onus on the developer to demonstrate non-viability, before summarising relevant local policies.

He addresses the RICS professional guidance, “Financial Viability In Planning“, in paragraphs 50 to 58, without criticism – noting for instance the fact that the guidance note discourages reliance upon EUV+ “as the sole basis for arriving at site value, because the uplift is an arbitrary number and the method does not reflect the workings of the market. Furthermore, the EUV Plus method is not based upon the value of the land if the redevelopment involves a different land use (eg. an office building redeveloped for a residential scheme)”.

The Secretary of State and Islington resisted the grounds but submitted that, in any event, PRL’s criticisms “do not vitiate the essential conclusion of the inspector that, contrary to local policy, the appeal proposal failed to provide “the maximum reasonable amount of affordable housing“”.

After a lengthy analysis of the decision letter as well as the arguments that had been put forward by the parties, the judge rejected grounds 1 and 3. He accepted in part PRL’s arguments in relation to ground 2, there had indeed been flaws in the council’s valuer’s approach which were not addressed properly by the inspector. However that error, in the judge’s view, did not vitiate the basis upon which the inspector rejected PRL’s case that a 10% affordable housing provision represented the maximum reasonable level and was not therefore a basis for quashing the decision.

The claim was accordingly dismissed.

Which takes us to that postscript in paragraphs 141 to 147. It is an intriguing read for what is says about, for instance the following:

⁃ The importance of overcoming uncertainty as to how viability assessment should properly be carried out, which is “making it difficult for practitioners and participants in the planning process to predict the likely outcome and to plan accordingly. It also leads to a proliferation of litigation“.

⁃ The tension that has arisen in the application of paragraph 23 of the viability passages in the PPG, which should mean reflecting and not bucking relevant planning policies when arriving at a benchmark land value, but on the other hand ensuring that the application of those policies should be informed by and not bucking an analysis of market evidence.

⁃ Data on comparables should be adjusted properly but on the other hand there are drawbacks in a simple requirement to conform to EUV+, by way of formulaic application, especially via local authority documents which have not been subjected to independent statutory examination prior to adoption.

Finally, in the context of the Government’s consultation proposals in relation to standardised inputs to viability assessments (see my 10 March 2018 blog post Developer Contributions, CIL, Viability: Are We Nearly There Yet the judge offers a suggestion:

It might be thought that an opportune moment has arrived for the RICS to consider revisiting the 2012 Guidance Note, perhaps in conjunction with MHCLG and the RTPI, in order to address any misunderstandings about market valuation concepts and techniques, the “circularity” issue and any other problems encountered in practice over the last 6 years, so as to help avoid protracted disputes of the kind we have seen in the present case and achieve more efficient decision-making.”

That would indeed be welcome.

Simon Ricketts, 28 April 2018

Personal views, et cetera

[Colleagues at Town acted for PRL but these are, as always, my personal views].

Green Belt Developments

This month’s green belt news: two Court of Appeal rulings, a Secretary of State decision letter and of course the draft revised NPPF.
Brown v London Borough of Ealing (Court of Appeal, 23 March 2018) was a judicial review of a local authority’s grant of planning permission for a first team training and academy facility for Queen’s Park Rangers, sports pitches, community facilities and associated development at Warren Farm Ealing, on metropolitan open land (where of course green belt policy tests apply).

One of the two grounds of challenge was “whether the officer’s conclusion, accepted by the committee, that “very special circumstances” existed to justify the grant of planning permission for “inappropriate development” on Metropolitan Open Land was bad in law“. 
Paragraph 88 of the current NPPF states:
When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless any potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”
Following Redhill Aerodrome Ltd. v Secretary of State for Communities and Local Government (Court of Appeal, 24 October 2014), it is well established that the expression “any other harm” does not just mean any other harm to the green belt but takes in non- green belt factors as well. The question for the court in Brown was whether the officer had taken this correctly on board. It was submitted by the claimant that the structure of the officer’s conclusions suggested that she had either excluded non green belt harm such as loss of public access or that she had double-counted by concluding that the proposed improvements to community facilities would balance out that harm, when she had already taken into account the same factor as part of the “very special circumstances” arising. The court disagreed. The report had to be interpreted “with reasonable benevolence and realism, and not in an overly legalistic way“. The officer had properly applied the approach that the Redhill judgment requires and on the double-counting point:

“In principle, it is possible for a particular factor to be relevant, and to carry appropriate weight, in the consideration of more than one planning issue. It may serve to avoid or overcome or, at least, outweigh some real or potential planning harm, and it may also satisfy some planning need that would otherwise go unmet”

“This was not, in any sense, “double-counting”. Rather, the officer’s conclusions point up the two-fold relevance of the improvement to recreational facilities at Warren Farm as a material consideration – to which appropriate weight had to be given in two respects, not merely in one. The officer was entitled to conclude, as a matter of planning judgment, that in the context of “Public Access”, given the availability of other publicly accessible open space nearby, the balance of relevant benefit – improved sports facilities for the local community – against disadvantage – the “loss” of public access for recreation – fell in favour of the development. I do not accept that this benefit was immaterial in that particular context; it was, I think, plainly a relevant consideration there. The officer was also entitled to conclude, again as a matter of planning judgment, that in the “very special circumstances” balance itself, the ability of the development to meet a need identified in development plan policy – the general need for investment in improved sports facilities, and specifically the need for such investment at Warren Farm – was a consideration to which weight should be given on the positive side of that balance. These conclusions were not in tension or conflict with each other. They were distinct from each other, but mutually consistent. They do not show a material consideration being given double weight, only a single factor being given due weight in two different respects: first, outweighing a “loss” that would be caused by the development itself; second, meeting an existing need that would not be satisfied without the development.”
Samuel Smith Old Brewery (Tadcaster) Limited v North Yorkshire CC (Court of Appeal, 16 March 2018) was the latest piece of litigation instigated by Yorkshire brewer and serial litigator Humphrey Smith. This time the target of Mr Smith’s attention was a planning permission granted for the extension of a limestone quarry in the green belt about a mile from Tadcaster. The claimant argued that the council had misapplied paragraph 90 of the NPPF, which states mineral extraction is not “inappropriate development” in the green belt if it preserves the openness of the green belt. 
The officer had approached the question of “openness” in this way:
“It is considered that the proposed development preserves the openness of the Green Belt and does not conflict with the purposes of including land within the Green Belt. Openness is not defined, but it is commonly taken to be the absence of built development. Although the proposed development would be on existing agricultural land, it is considered that because the application site immediately abuts the existing operational quarry, it would not introduce development into this area of a scale considered to conflict with the aims of preserving the openness of the Green Belt.

In terms of whether the proposed development does not conflict with the purposes of including land within the Green Belt, the proposed quarrying operations are not considered to conflict with the purposes of including land within the Green Belt. Equally, it is not considered that the proposed development would undermine the objective of safeguarding the countryside from encroachment as it should be considered that the site is in conjunction with an operational quarry which will be restored. The proposed development is a temporary use of land and would also be restored upon completion of the mining operations through an agreed DRMP.

The purposes of including land within the Green Belt to prevent the merging of neighbouring towns and impacts upon historic towns are not relevant to this site as it is considered the site is adequately detached from the settlements of Stutton, Towton and Tadcaster. It is also important to note that the A64 road to the north severs the application site from Tadcaster.”
The court found that this was indeed a misinterpretation of paragraph 90:
“The concept of “the openness of the Green Belt” is not defined in paragraph 90. Nor is it defined elsewhere in the NPPF. But I agree with Sales L.J.’s observations in Turner to the effect that the concept of “openness” as it is used in both paragraph 89 and paragraph 90 must take its meaning from the specific context in which it falls to be applied under the policies in those two paragraphs. Different factors are capable of being relevant to the concept when it is applied to the particular facts of a case. Visual impact, as well as spatial impact, is, as Sales L.J. said, “implicitly part” of it. In a particular case there may or may not be other harmful visual effects apart from harm in visual terms to the openness of the Green Belt. And the absence of other harmful visual effects does not equate to an absence of visual harm to the openness of the Green Belt.

As a general proposition, however, it seems to me that the policy in paragraph 90 makes it necessary to consider whether the effect of a particular development on the openness of the Green Belt can properly be gauged merely by its two-dimensional or three-dimensional presence on the site in question – the very fact of its being there – without taking into account the effects it will have on the openness of the Green Belt in the eyes of the viewer. To exclude visual impact, as a matter of principle, from a consideration of the likely effects of development on the openness of the Green Belt would be artificial and unrealistic. The policy in paragraph 90 does not do that. A realistic assessment will often have to include the likely perceived effects on openness, if any, as well as the spatial effects. Whether, in the individual circumstances of a particular case, there are likely to be visual as well as spatial effects on the openness of the Green Belt, and, if so, whether those effects are likely to be harmful or benign, will be for the decision-maker to judge. But the need for those judgments to be exercised is, in my view, inherent in the policy.

The first part of the question posed by the preamble in paragraph 90 – whether the development would “preserve” the openness of the Green Belt – cannot mean that a proposal can only be regarded as “not inappropriate in Green Belt” if the openness of the Green Belt would be left entirely unchanged. It can only sensibly mean that the effects on openness must not be harmful – understanding the verb “preserve” in the sense of “keep … safe from harm” – rather than “maintain (a state of things)” (Shorter Oxford English Dictionary, 4th edn.). There may be cases in which a proposed development in the Green Belt will have no harmful visual effects on the openness of the Green Belt. Indeed, there may be cases in which development will have no, or no additional, effect on the openness of the Green Belt, either visual or spatial. A good example might be development of the kind envisaged in the fourth category of development referred to in paragraph 90 of the NPPF – “the re-use of buildings provided that the buildings are of permanent and substantial construction”. But development for “mineral extraction” in the Green Belt, the category of development with which we are concerned, will often have long-lasting visual effects on the openness of the Green Belt, which may be partly or wholly repaired in the restoration phase – or may not. Whether the visual effects of a particular project of mineral working would be such as to harm the openness of the Green Belt is, classically, a matter of planning judgment.

In my view, therefore, when the development under consideration is within one of the five categories in paragraph 90 and is likely to have visual effects within the Green Belt, the policy implicitly requires the decision-maker to consider how those visual effects bear on the question of whether the development would “preserve the openness of the Green Belt”. Where that planning judgment is not exercised by the decision-maker, effect will not be given to the policy. This will amount to a misunderstanding of the policy, and thus its misapplication, which is a failure to have regard to a material consideration, and an error of law.”
Or as Zack Simons summarised:

The planning permission was quashed.
Aside from these two Court of Appeal rulings, throwing light on paragraphs on paragraphs 88 and 90 of the NPPF respectively, it was also interesting to see this month the Secretary of State allow an appeal by Berkeley Homes (Southern) Limited and Howard Partnership Trust for substantial development in the green belt, comprising 258 homes and replacement secondary school in Effingham, Surrey. In his decision letter (21 March 2018) the Secretary of State’s findings included that:

– There is a need for additional school places in the area, “the existing school premises are not fit for the purpose of meeting modern educational and social need and that the replacement of the school in order to facilitate this carries very substantial weight“. Furthermore, “there are very significant issues with the fabric of the school and the ongoing funding of its repair and maintenance in the current budgetary context. He further agrees that in seeking to address condition as well as suitability and sufficiency, the least expensive option is the rebuilding of the school on the only other available identified site, and that these matters carry very substantial weight.”
– An Autism Centre “optimally located within the new complex to maximise its effectiveness for the students who will use it, … is a clear benefit of the scheme and to deepening the educational and community inclusivity of the school.”

– Guildford Borough Council only has a 2.1 year housing land supply. Against this the Secretary of State considered that the delivery of dwellings, 20% of which will be affordable, carries very substantial weight. 

He concluded that the benefits arising from the scheme “clearly outweigh harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances exist” for the purposes of paragraphs 87 and 88 of the NPPF. 
The inclusion of reference to the extent of unmet housing need in Guildford as part of the very special circumstances relied upon is encouraging, but the need to replace the school and provide more school places was a crucial component, given that the Government has indicated since 2013 that unmet housing need alone is not sufficient to amount to very special circumstances, a stance that is presently unlikely to change. Indeed, at the end of a House of Commons debate debate on 6 February 2018 on housing, planning and the green belt, there was this exchange between Dominic Raab and a backbench Conservative MP:

This was of course followed by publication on 5 March of the draft revised NPPF (NPPF 2.0 for hipster-planners). Has it made any difference to any of what I have set out above? Well, slightly:
– paragraph 88 is now paragraph 143 and after the words “any other harm” is added “resulting from the proposal“. This is an additional pointer towards the Court of Appeal’s wider interpretation of that phrase as per Redhill and now Brown. 
– paragraph 90 is now paragraph 145 with unchanged wording, although within paragraph 144 there is an important extra category of development that is not “inappropriate” and where “very special circumstances” therefore do not need to be shown”: “where the development would re-use previously developed land and contribute to meeting an identified local affordable housing need, not cause substantial harm to the openness of the Green Belt. ” – this “not cause substantial harm” is going to be the new battleground I’m sure. There is also a clarification of the previous statement that “the provision of appropriate facilities for outdoor sport, outdoor recreation” etc is not “inappropriate development”. The wording is now “the provision of appropriate facilities (in connection with the existing use of land or a change of use) for” those uses”, following the approach already adopted by the courts, eg in R (Timmins) v Gedling Borough Council (Court of Appeal, 22 January 2015).
The “exceptional circumstances” test for changing green belt boundaries in plans has been embellished (as flagged since the February 2017 housing white paper) by requiring that “the strategic plan-making authority should have examined fully all other reasonable options for meeting its identified need for development. This will be assessed through the examination of the plan, which will take into account the preceding paragraph, and whether the strategy; 

* a)  makes as much use as possible of suitable brownfield sites and underutilised land; 


* b)  optimises the density of development, including whether policies promote a significant uplift in minimum density standards in town and city centres, and other locations well served by public transport; and 


* c)  has been informed by discussions with neighbouring authorities about whether they could accommodate some of the identified need for development, as demonstrated through the statement of common ground.”


“Where it has been concluded that it is necessary to release Green Belt land for development, plans should give first consideration to land which has been previously-developed and/or is well-served by public transport. They should also set out ways in which the impact of removing land from the Green Belt can be offset through compensatory improvements to the environmental quality and accessibility of remaining Green Belt land.”

Will this embellishment raise the threshold materially for green belt release? I’m not sure that the additional criteria do anything more than articulate the matters that would be examined in any event. The removal of some brownfield proposals, which will not cause substantial harm to the openness of the green belt, from the definition of inappropriate development is on the other hand potentially significant (and surely wholly sensible). As for the constant flow of case law, it is certainly not going to dry up. 
Simon Ricketts, 30 March 2018
Personal views, et cetera

 

Developer Contributions, CIL, Viability: Are We Nearly There Yet?

Bookends to this last week:
On Monday 5 March 2018 the draft revised NPPF , accompanying consultation proposals document and the Government’s response to the housing white paper consultation were all published, as well as the two documents I’ll focus on in this blog post:
Supporting housing delivery through developer contributions: Reforming developer contributions to affordable housing and infrastructure (which also addresses proposed reform to CIL); and 

Draft Planning Practice Guidance for Viability 
On Friday 9 March 2018 Draft Planning Practice Guidance: Draft updates to planning guidance which will form part of the Government’s online Planning Practice Guidance was published. 

The draft revised NPPF itself says very little on developer contributions, CIL and viability. 
On contributions, paragraph 34 of the draft (headed, in contrast to the “developer contributions” document, “development contributions” – consistency of terminology would be good!) states:
Plans should set out the contributions expected in association with particular sites and types of development. This should include setting out the levels and types of affordable housing provision required, along with other infrastructure (such as that needed for education, health, transport, green and digital infrastructure). Such policies should not make development unviable, and should be supported by evidence to demonstrate this. Plans should also set out any circumstances in which further viability assessment may be required in determining individual applications.”

On viability:

58. Where proposals for development accord with all the relevant policies in an up-to- date development plan, no viability assessment should be required to accompany the application. Where a viability assessment is needed, it should reflect the recommended approach in national planning guidance, including standardised inputs, and should be made publicly available.”
The Developer Contributions consultation document (responses sought by 10 May) addresses both contributions by way of section 106 planning obligations and by way of CIL. The document is accompanied by a research report commissioned from the University of Liverpool, The Incidence, Value and Delivery of Planning Obligations and Community Infrastructure Levy in England in 2016-17 which has some interesting statistics, underlining for me the scale of monies already being secured from development, over £6bn in 2016/2017:

It is clear from the consultation document that we are still on a journey to an unknown destination:
“The reforms set out in this document could provide a springboard for going further, and the Government will continue to explore options to create a clearer and more robust developer contribution system that really delivers for prospective homeowners and communities accommodating new development. 

One option could be for developer contributions [towards affordable housing as well as infrastructure] to be set nationally and made non negotiable. We recognise that we will need to engage and consult more widely on any new developer contribution system and provide appropriate transitions. This would allow developers to take account of reforms and reflect the contributions as they secure sites for development. 

The proposals in this consultation are an important first step in this conversation and towards ensuring that developers are clear about their commitments, local authorities are empowered to hold them to account and communities feel confident that their needs will be met.”
First step in a conversation??
Contributions via section 106 planning obligations
The document sets out perceived disadvantages of relying on section 106 planning obligations, including:
– delays (but there is no mention of how these could easily be reduced by prescriptive use of template drafts and more robust guidance and the Government’s previous proposal for an adjudication process to resolve logjams in negotiations has been dropped)
– the frequency of renegotiations, most frequently changing the type or amount of affordable housing (but with no analysis of why this is so – often in my experience for wholly necessary reasons, often linked to scheme changes or reflection of changed government affordable housing priorities or funding arrangements)

– a concern that they may “only have captured a small proportion of the increase in value” that has occurred over the time period covered by the University of Liverpool research report (but, aside from where the scale of contributions has been depressed from a policy compliant position due to lack of viability, why is this relevant? Planning obligations should be about necessary mitigation of the impacts from development, not about capture of uplifts in land value ). 

– lack of transparency. 

– lack of support for cross boundary planning. 

Despite these criticisms, the document does not propose significant changes to the section 106 process (or provide any timescale for the further review it alludes to) save for proposing to remove the pooling restriction (Regulation 123 of the CIL Regulations 2010) in areas:

* “that have adopted CIL; 


* where authorities fall under a threshold based on the tenth percentile of 
average new build house prices, meaning CIL cannot feasibly charged; 


* or where development is planned on several strategic sites

The Government is consulting on what approach should be taken to strategic sites for this purpose, the two options being stated as:
“a) remove the pooling restriction in a limited number of authorities, and across the whole authority area, when a set percentage of homes, set out in a plan, are being delivered through a limited number of large strategic sites. For example, where a plan is reliant on ten sites or fewer to deliver 50% or more of their homes; 

b) amend the restriction across England but only for large strategic sites (identified in plans) so that all planning obligations from a strategic site count as one planning obligation. It may be necessary to define large strategic sites in legislation.”
I would prefer to see the pooling restriction dropped across the board. If authorities choose not to adopt a CIL charging schedule but to rely on section 106 planning obligations to make contributions towards infrastructure then why not let them, subject to the usual Regulation 122 test? I thought we wanted a simpler system?
There are sensible proposals for summaries of section 106 agreements to be provided in standard form (although we do not yet have the template), so that information as to planning obligations can be more easily made available to the public, collated and monitored. 
Contributions via CIL
The Government’s thinking on CIL continues along the lines set out alongside the Autumn 2017 budget and summarised in my 24 November 2017 blog post CIL: Haven’t Found What I’m Looking For ie wandering dangerously away from the CIL review panel’s ideas of a simpler, more uniform but lower charge regime. The proposed ability for authorities to set different CIL rates based on the existing use of land is inevitably going to make an overly complex system even worse, introducing another uncertainty, namely how the existing use of the land is to be categorised. The Government recognises that risk:

Some complex sites for development may have multiple existing uses. This could create significant additional complexity in assessing how different CIL rates should be apportioned within a site, if a charging authority has chosen to set rates based on the existing use of land. 

In these circumstances, the Government proposes to simplify the charging of CIL on complex sites, by: 

* encouraging the use of specific rates for large strategic sites (i.e. with a single rate set for the entire site) 


* charging on the basis of the majority use where 80% of the site is in a single existing use, or where the site is particularly small; and 


* other complex sites could be charged at a generic rate, set without reference to the existing use of the land, or have charges apportioned between the different existing uses.”

One wonders how this would play out in practice. 

It seems that the requirement for regulation 123 lists (of the infrastructure projects or types of infrastructure which the authority intends to fund via CIL – and which therefore cannot be secured via section 106) is to be removed, which is of concern since regulation 123 lists (the use of which should be tightened rather than loosened) serve at least some degree of protection for developers from being double-charged. 
 The Government is proposing to address one of the most draconian aspects of the CIL process – the current absolute requirement for a commencement notice to be served ahead of commencement of development, if exemptions and the right to make phased payments (where allowed by the authority) are not to be lost, is to be replaced by a two months’ grace period. However, this does not avoid all current problems as any exemptions would still need to be secured prior to commencement.

A specific problem as to the application of abatement provisions to pre-CIL phased planning permissions is to be fixed. These flaws in the legislation continue to emerge, a function of the complexity and artificiality of the whole edifice, which the panel’s proposals would significantly have reduced. In the meantime, we are some way away from actual improvements to the system we are all grappling with day by day, with no firm timescale for the next set of amending Regulations. 
Viability
The thrust of the draft planning practice guidance for viability is understood and reflects what had been heralded in the September 2017 Planning for the right homes in the right places consultation document – focus viability consideration at allocation stage, standardise, make more transparent – but there are some surprising/interesting passages:
– Is the Government contemplating review mechanisms that don’t just ratchet upwards? Good if so:
It is important that local authorities are sufficiently flexible to prevent planned development being stalled in the context of significant changes in costs and values that occur after a plan is adopted. Including policies in plans that set out when and how review mechanisms may be included in section 106 agreements will help to provide more certainty through economic cycles. 

For all development where review mechanisms are appropriate they can be used to amend developer contributions to help to account for significant changes in costs and values over the lifetime of a development. Review mechanisms can be used to re- apportion or change the timing of contributions towards different items of infrastructure and affordable housing. This can help to deliver sites that would otherwise stall as a result of significant changes in costs and values of the lifetime of a development.”
– Review mechanisms are appropriate for “large or multi phased development” in contrast to the ten homes threshold in draft London Plan policy H6 (which threshold is surely too low). 
– The document advises that in arriving at a benchmark land value, the EUV+ approach (ie existing use value plus premium) should be used. The London Mayor will have been pleased to see that but will then have choked on his cornflakes when the Government’s definition of EUV+ is set out. According to the Government, EUV is not only “the value of the land in its existing use” (reflecting the GLA approach) but also “the right to implement any development for which there are extant planning consents, including realistic deemed consents, but without regard to other possible uses that require planning consent, technical consent or unrealistic permitted development” (which is more like the GLA’s approach to Alternative Use Value!). 
Then when it comes to assessing the premium, market comparables are introduced:
When undertaking any viability assessment, an appropriate minimum premium to the landowner can be established by looking at data from comparable sites of the same site type that have recently been granted planning consent in accordance with relevant policies. The EUV of those comparable sites should then be established. 

The price paid for those comparable sites should then be established, having regard to outliers in market transactions, the quality of land, expectations of local landowners and different site scales. This evidence of the price paid on top of existing use value should then be used to inform a judgement on an appropriate minimum premium to the landowner.”

I am struggling to interpret the document as tightening the methodologies that are currently followed, or indeed introducing any material standardisation of approach. 

The EUV+ position is covered in more detail by George Venning in an excellent blog post.
– There is a gesture towards standardisation in the indication that for “the purpose of plan making an assumption of 20% of Gross Development Value (GDV) may be considered a suitable return to developers in order to establish viability of the plan policies. A lower figure of 6% of GDV may be more appropriate in consideration of delivery of affordable housing in circumstances where this guarantees an end sale at a known value and reduces the risk.” However, there is no certainty: “Alternative figures may be appropriate for different development types e.g. build to rent. Plan makers may choose to apply alternative figures where there is evidence to support this according to the type, scale and risk profile of planned development.
More fundamentally, I am sceptical that viability-testing allocations at plan-making stage is going to deliver. At that stage the work is inevitably broad-brush, based on typologies rather than site specific factors, often without the detailed input at that stage of a development team such that values and costs can be properly interrogated and without an understanding of any public sector funding that may be available. If the approach did actually deliver, significantly reducing policy requirements, so much the better, but that isn’t going to happen without viability arguments swamping the current, already swamped, local plan examination process.
Indeed, as was always going to be the case with the understandable drive towards greater transparency, the process is becoming increasingly theoretical (think retail impact assessment) and further away from developers opening their books to demonstrate what the commercial tipping point for them is in reality, given business models, funding arrangements, actual projected costs (save for land), and actual projected values. “Information used in viability assessment is not usually specific to that developer and thereby need not contain commercially sensitive data“. 
The document contains more wishful thinking:
A range of other sector led guidance on viability is widely available which practitioners may wish to refer to.”
Excellent. Such as?
Topically, this week, on 6 and 7 March, Holgate J heard Parkhurst Road Limited’s challenge to the Parkhurst Road decision letter that I referred to in my 24 June 2017 blog post Viability & Affordable Housing: Update. The challenge turns on the inspector’s conclusions on viability. Judgment is reserved. 

We also should watch out for Holgate J’s hearing on 1 and 2 May of McCarthy and Stone & others v Mayor of London, the judicial review you will recall that various retirement living companies have brought of the Mayor of London’s affordable housing and viability SPG. 
The great thing about about writing a planning law blog is that the well never runs dry, that’s for sure. (Nothing else is). 
Simon Ricketts, 10 March 2018
Personal views, et cetera

Through A Glass Darkly: To BRE Or Not To BRE

How to determine whether the impact from a proposed development on the daylight and sunlight enjoyed by neighbours, or to be enjoyed by future occupiers of the scheme, is appropriate? That is the question. 
The problems are multi-layered:
– There is no practical guidance in the NPPF or NPPG as the approach to be taken.
– Many local planning authorities default in their policies to requiring compliance with a guide to good practice published by the Building Research Establishment in 2011: “site layout planning for daylight and sunlight: a guide to good practice” (BR 209) by Paul Littlefair (a document incidentally not freely available but available for purchase from the BRE for £55). 

– The document has various numerical criteria and calculations to determine acceptability. Whilst the need for flexibility in application is acknowledged in the document itself (“Although it gives numerical guidelines, these should be interpreted flexibly because natural lighting is only one of many factors in site layout design“) in practice this is often overlooked. 

– The document has not been updated to reflect changes in our understanding of what makes great places or indeed nuanced to reflect the very different expectations of those living in urban environments, and London in particular. 
The Government signalled in its February 2017 housing white paper that a new approach may be needed: “the Government intends to amend national planning guidance to highlight planning approaches that can be used to help support higher densities, and to set out ways in which daylight considerations can be addressed in a pragmatic way that does not inhibit dense, high- quality development.”
I will be disappointed if we do not see this in the draft revised NPPF (likely to be published on 5 March). 
Disappointingly, the Mayor of London has omitted specific guidance from the draft London Plan (2 March representations deadline looming). The opportunity has been missed to stress the need for flexibility and appreciation of context. Given the loss of the previous density matrices, daylighting and sunlighting issues will continue to be relied upon by objectors seeking to resist higher density schemes, which are inevitable if the housing targets in the plan are to be achieved. 
Against this context it is fascinating to read the inspector’s decision letter dated 21 February 2018 allowing an appeal by Londonewcastle for their Whitechapel Estate development, which comprises “demolition of all existing buildings and redevelopment to provide 12 buildings ranging from ground plus 2-23 storeys (a maximum 94m AOD height), comprising 343 residential dwellings (Class C3), 168 specialist accommodation units (Class C2), office floorspace (Class B1), flexible office and non-residential institution floorspace (Class B1/D1), retail floorspace (Class A1-A3), car parking, cycle parking, hard and soft landscaping and other associated works.” The site falls within the City Fringe Opportunity Area Planning Framework.
The inspector summarised the main issues as:
* “The quality of design of the appeal proposal and its effect on the character and appearance of the area and on the wider townscape;

* The effect on heritage assets and their settings; 


* The effect on living conditions of neighbouring residents, having regard in 
particular to daylight and sunlight, outlook and privacy; 


* The quality of living conditions for future residents of the development, having regard in particular to daylight and sunlight, overshadowing, outlook and privacy. ”

The inspector’s approach to daylight and sunlight is particularly interesting, given that it follows detailed evidence from, for the London Borough of Tower Hamlets, none other than Paul Littlefair, author of the BRE guide, and, for the appellant, leading consultant Gordon Ingram of GIA, proponent of a more nuanced, contextual, assessment approach. 

It is plain from the decision letter that the inspector preferred the GIA methodology:
107. It is agreed that the starting point in the assessment of the effect on residents’ living conditions arising from daylight and sunlight should be the Building Research Establishment 2011 publication Site layout planning for daylight and sunlight: A guide to good practice, (‘the BRE guide’) whose author gave evidence at the Inquiry on behalf of the Council. Use of this methodology is demanded by the supporting text to MDD Policy DM2539 and by the Mayor of London’s Housing SPG of March 2016. 

108. The BRE document offers guidance on generally acceptable standards of daylight and sunlight, but advises that numerical values are not to be rigidly applied and recognises the importance of the specific circumstances of each case. Inner city development is one of the examples where a different approach might be justified. This is specifically endorsed by the Housing SPG, which calls for guidelines to be applied sensitively to higher density developments, especially in (among others) opportunity areas and accessible locations, taking into account local circumstances, the need to optimise housing capacity, and the scope for the character and form of an area to change over time. This approach is clearly relevant to the appeal site. The area’s identification for transformation through high density housing development indicates high scope for its form and character to change over the short and longer term. I agree with the appellants that blanket application of the BRE guide optimum standards, which are best achieved in relatively low-rise well spaced layouts, is not appropriate in this instance.
112. The figures show that a proportion of residual Vertical Sky Component (‘VSC’) values in the mid-teens have been found acceptable in major developments across London. This echoes the Mayor’s endorsement in the pre- SPG decision at Monmouth House, Islington that VSC values in the mid-teens are acceptable in an inner urban environment. They also show a smaller proportion in the bands below 15%. Even if there were some discrepancy in the appellants’ figures for this lower band at Whitechapel Central, which is disputed, the VSC outcomes for the appeal proposal would in general be very similar to those of the other major schemes. The appeal proposal would therefore appear to be in compliance with the LP as amplified by the SPG and as it is being interpreted by the Mayor. The GLA responses to the planning application did not raise any concern about neighbours’ amenity. 

113. I acknowledge that a focus on overall residual levels could risk losing sight of individual problem areas. It is accepted that light is only one factor in assessing overall levels of amenity, but I consider that the trade-off with other factors, such as access to public transport or green space, is likely to be of more relevance to an occupier of new development than to an existing neighbour whose long-enjoyed living conditions would be adversely affected by new buildings. However, I also consider that Inner London is an area where there should generally be a high expectation of development taking place. This is particularly so in the case of the appeal site, where the WVM and the OAPF have flagged the desirability of high density development. Existing residents would in my view be prepared for change and would not necessarily expect existing standards of daylight and sunlight to persist after development.”
121. As in the matter of daylight, the guidance on loss of annual and winter sunlight is not to be rigidly applied. Emphasis on the level of retained sunlight rather than degree of change would be justified. On balance, I accept the appellants’ conclusion the proposal’s overall effect on sunlight would not be significantly adverse.”
As to the effect of the scheme on living conditions for neighbouring residents:
125. I conclude that the proposal would result in some significant individual reductions in daylight and sunlight levels, but that this is almost unavoidable in achieving the policy requirement for high density development in a confined urban setting. The new buildings would for the most part be comparable in height with the existing and would re-define traditional street frontages. Retained levels of daylight and sunlight would be adequate and comparable with existing and emerging urban conditions. The effects would appear very comparable with those recently allowed by the Council at Whitechapel Central. There would be minimal adverse losses of outlook and increases in overlooking. Taken as a whole, the proposal would not result in unacceptably harmful effects on living conditions and would comply with the development plan in this respect. ”
Whilst of course individual decisions of inspectors are not formal precedents, and every scheme is dependent on its individual circumstances and the relevant local policy background, this decision is undoubtedly important and surely fully in line with what the Government was flagging in the housing white paper. 
The BRE guidance in part draws upon British Standard BS 8206-2 (2008) Lighting for Buildings – Part 2: Code of Practice for Daylighting. I am wondering whether one reason that the 2011 guidance has not been updated is that the British Standards Institute has been working with other EU member states’ standards institutes on a new voluntary set of standards for natural daylight, via the European Committee for Standardisation. During this process, revisions of the relevant standard at a domestic level must be placed on hold. Following consultation, a new ECS standard was ratified on 8 February 2018 and will be formally available from 25 April 2018. More information as to the tighter criteria that the new standard will introduce is set out in a useful (subscription-only I am afraid) Planning Resource piece by Gregory Francis of GVA Schatunowski Brooks. 
So, on the one hand, are we at last seeing a move towards more flexible application of daylighting and sunlighting standards? On the other hand, are we are likely in due course to see a tightening of the standards themselves? I find it disappointing that the extent to which there is domestic oversight of the BRE (since 1997 not a governmental body but an independent charitable organisation) is opaque to say the least, before we even get to the complexities of the workings of the European Committee for Standardisation. The Government, and London Mayor, really do need shine a light on all of this.
Simon Ricketts, 24 February 2018
Personal views, et cetera

Expletive Deleted: Revising Policy

I learned today from an Independent piece (27 January 2018) that “an “expletive” originally meant any unnecessary word or phrase used to fill out a sentence. It comes from the Latin ex-, out, and plere, fill, and came to mean a swear word only in the 19th century.”
This coincides with what I was going to cover in this blog post, namely the need for more precise drafting of policy, particularly in relation to the NPPF, and particularly if the courts continue with their present approach to policy interpretation disputes.  

When the Commons CLG Select Committee reported in 2011 on its inquiry into the draft of what became the current NPPF, its conclusions included this passage:
Brevity and simplicity are to be applauded in any document. However, we consider that the NPPF does not achieve clarity by its brevity; critical wording has been lost and what remains is often unhelpfully vague. If the NPPF is to be a document that assists with practical decision-making, rather than a lawyers’ charter or an easy-to-read guide to the planning system, its drafting must be more precise and consistent, and sufficiently detailed to enable local authorities to write their own Local Plans. The Government should carefully consider the alternative drafts, submitted by many organisations as part of DCLG’s consultation, in order to produce a tighter, clearer document, and should not make a fetish of how many pages it is. Examples of such words and phrases needing tighter definitions in the NPPF include: ‘significant weight’; ‘great weight’; ‘substantial weight’; ‘considerable weight’; ‘significant flexibility’; ‘a high degree of certainty’; ‘sustainable economic growth’; ‘absent’; ‘silent’; ‘indeterminate’; ‘out-of-date’; ‘certificate of conformity’, ‘where practical’; and ‘where reasonable‘.”
Whilst changes were made in the final 2012 document, too much was left loose. In retrospect, there was an obvious reason: the one document was trying to provide at least three separate things:
– political advocacy as to policy outcomes sought by the Government

– a precise framework for local authority policy making and decision taking

– a significantly condensed version of numerous previous policy documents

It may be fine and convenient to use loose, sometimes emotive (“the golden thread”) or purely exhorting language for a document with solely that first role, but certainly not the second or third, where precise words matter.  
It is also a mistake to imagine that, in order to be more precise, a document has to be longer. In fact there are far too many adjectives and adverbs in the current NPPF and I would be red-pen brutal. Is each necessary? For instance, what is the difference between “evidence” and “compelling evidence” (para 48), “positively seek” vs “seek” (para 14) or “significantly and demonstrably outweigh” vs “significantly outweigh” (also para 14)?
If the word is necessary, is its meaning sufficiently defined or calibrated? By this I mean, what precisely is meant by, for instance, “substantial” (used 11 times), or “significant”/”significantly” (used 27 times) or “exceptional” (used 9 times)? If the answer is that this is for the LPA to determine, say that. However, I am not sure that this is often what is meant and the participants descend into trying to weigh the indeterminate presumption in favour of the plan in section 38(6) of the 2004 as against various matters which are either given an uncertain degree of additional weight by national policy or by statute (for instance the unhelpfully differing terminology in relation to specific duties on decision makers in relation to listed buildings, conservation areas and AONBs in sections 66(1) – “special regard” – and 72(1) – “special attention” – of the Listed Buildings Act 1990 and section 85(1) – “regard” – of the Countryside and Rights of Way Act 2000 respectively). 
Apples with pears perhaps but contrast the analysis of proposals as against policy with the more methodical and internally consistent categorisation of effects in the environmental impact assessment process. Through the good work of IEMA and others, standardised terms have recognised meanings. We need to work towards that in relation to for example judging harm to designated heritage assets for the purposes of paragraphs 132 to 134 of the current NPPF – practical consequences flow from whether there is likely to be “harm” and whether any harm is likely to be “substantial” or “less than substantial”, with practitioners recognising different degrees of harm within those policy categories. 
This doesn’t just matter to lawyers. Jonathan Edis and Elizabeth Stephen in A Consultant’s view of the NPPF (Papers from the Institute of Archaeology, 2013):

The problem is that we know there is harm, but we are not given the words to describe it and convert it into a form where it can be put into the planning balance consistently. We know from recent appeal decisions that less than substantial harm can include levels of impact that are also described as significant and considerable, which concentrates a disconcerting number of similar adjectives in a small conceptual space. Lower down the scale we also know that less than substantial harm can accommodate effects which are described as minor, which is easier to swallow. However, the NPPF provides no framework within which to rank these terms, and there is no indication of how to describe the lowest level of harm to be considered under paragraph 134 of the NPPF

Definition doesn’t necessarily mean greater length or making the document less readable. The existing glossary could be expanded, or there could be a clearer read-through to the relevant passages in the Planning Practice Guidance (with hyper-text links in the NPPF to all defined terms). But in some instances, the policy wording in the NPPF could itself be made more specific. Indeed this is what the Government has consulted upon in relation to the relevant test for amending green belt boundaries: the guidance in paragraph 83 that “Green Belt boundaries should only be altered in exceptional circumstances, through the preparation or review of the Local Plan” is proposed (see paragraph 1.39 of the Government’s February 2017 Housing White Paper) to be replaced with specific criteria that are to be applied. 
The problems arising from loose wording are evident from the extent of litigation that has revolved around specific words and phrases of the NPPF, litigation which has obvious costs, both direct (for the participants) and indirect (for society and the economy). 
In Suffolk Coastal (see my 5 May 2017 blog post NPPF Paras 49 & 14: So What Is The Supreme Court Really Saying?), Lord Carnwath described the NPPF as “a simplification of national policy guidance, designed for the lay-reader“, but it can’t just be that. (Indeed for the lay-reader I suspect it is hopelessly confusing and raises all sorts of unjustified expectations). It does need to have some legal precision if it is intended to have practical effects. Lord Reed in Tesco Stores Limited v Dundee City Council states that “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context“. This is an interpretative role that the courts cannot step back from, although being careful to recognise that, as stated by Lord Carnwath in Suffolk Coastal, “the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy; and not to elide the two.”

Does Government analyse the extent to which litigation could have been reduced by clearer policy wording? Why for instance was the Suffolk Coastal saga not stopped well before the Supreme Court by a ministerial clarification of how paragraphs 14 and 49 are intended to work?

The courts are also placed in a bind. They are rightly turned to for resolution of disputes as to what the words actually mean, but they strain against overlaying their own interpretation upon the words themselves and from interfering with the application, as opposed to interpretation, of policy. Challenges are routinely being knocked back on the basis of “excessive legalism” but the disputes arising are often not in truth “legalistic”, they are (in line with the Tesco case) disputes as to what the policy in question actually means, which surely matters. Is it acceptable (from the perspective of fairness and predictability) or sensible (from the perspective of the Government achieving its desired policy outcomes and reducing delays caused by appeals) to have vague statements in policy that can be read in different ways (and which the courts will refrain from defining)?
The distinction between policy interpretation and policy application can be difficult to make. It often flows only from a decision by the court as to whether the decision-maker’s interpretation was correct, for which the applicant first has to litigate. For instance, this week the Court of Appeal in Jelson Limited v Secretary of State (19 January 2018) declined to quash an inspector’s decision on the basis of an alleged incorrect approach to arriving at a figure for objectively assessed housing needs in the relevant area. Christopher Lockhart-Mummery QC on behalf of Jelson pointed to various alleged mistakes in the inspector’s approach as against the requirements of the NPPF. 

As a result, Mr Lockhart-Mummery submitted, the inspector failed to approach her assessment of the “full need” for affordable housing as she should have done, and failed to identify, with “clarity and precision”, a robust figure for the “full, objectively assessed needs” for housing in the council’s area. 

I cannot accept those submissions. They collide with the most basic principle in the court’s jurisdiction to review planning decisions, which is that matters of planning judgment are not for the court, but for the decision-maker – here an inspector appointed by the Secretary of State – and that the decision-maker’s exercise of planning judgment will not be overturned except on clearly demonstrated public law grounds.”
The court held that the inspector had not misunderstood the approach to be taken and that her conclusions were therefore beyond challenge. 
Paragraphs 23 and 24 of Lindblom LJ’s judgment are important:
“As this court has emphasized in Oadby and Wigston Borough Council, against the background of its earlier decisions in Hunston Properties Ltd.and Gallagher Estates Ltd., national policy and guidance does not dictate, for decision-making on applications for planning permission and appeals, exactly how a decision-maker is to go about identifying a realistic and reliable figure for housing need against which to test the relevant supply (see paragraphs 35 and 36 of my judgment). In this respect, government policy, though elaborated at length in the guidance in the PPG, is not prescriptive. Where the Government wanted to be more specific in the parameters it set for decision-makers considering whether a local planning authority could demonstrate the required five-year supply of housing land, it was – in laying down the approach to calculating the supply of deliverable housing sites in paragraphs 47 and 49 of the NPPF, and, in particular, in carefully defining the concept of a “deliverable” site (see my judgment in St Modwen Developments Ltd. v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643, at paragraph 36). 

Responsibility for the assessment of housing need lies with the decision-maker, and is no part of the court’s role in reviewing the decision. Although the decision-maker is clearly expected to establish, at least to a reasonable level of accuracy and reliability, a level of housing need that represents the “full, objectively assessed needs” as a basis for determining whether a five-year supply exists, this is not an “exact science” (the expression used in paragraph 2a-014-20140306 of the PPG). It is an evaluation that involves the decision-maker’s exercise of planning judgment on the available material, which may not be perfect or complete (see the judgment of Lang J. in Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin), at paragraph 27). The scope for a reasonable and lawful planning judgment here is broad (see the judgment of Hickinbottom J. in Stratford-on-Avon District Council v Secretary of State for Communities and Local Government [2013] EWHC 2074 (Admin), at paragraph 43). Often there may be no single correct figure representing the “full, objectively assessed needs” for housing in the relevant area. More than one figure may be reasonable to use. It may well be sensible to adopt a range, rather than trying to identify a single figure. Unless relevant policy in the NPPF or guidance in the PPG has plainly been misunderstood or misapplied, the crucial question will always be whether planning judgment has been exercised lawfully, on the relevant material, in assessing housing need in the relevant area (see paragraphs 32 to 38 of my judgment in Oadby and Wigston Borough Council). A legalistic approach is more likely to obscure the answer to this question than reveal it (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council).”

This reflects what Lindblom LJ stressed in Mansell v Tonbridge and Malling Borough Counci (Court of Appeal, 8 September 2017):

The Planning Court – and this court too – must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council). The courts must keep in mind that the function of planning decision-making has been assigned by Parliament, not to judges, but – at local level – to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners, and – on appeal – to the Secretary of State and his inspectors. They should remember too that the making of planning policy is not an end in itself, but a means to achieving reasonably predictable decision-making, consistent with the aims of the policy-maker. Though the interpretation of planning policy is, ultimately, a matter for the court, planning policies do not normally require intricate discussion of their meaning. A particular policy, or even a particular phrase or word in a policy, will sometimes provide planning lawyers with a “doctrinal controversy”. But even when the higher courts disagree as to the meaning of the words in dispute, and even when the policy-maker’s own understanding of the policy has not been accepted, the debate in which lawyers have engaged may turn out to have been in vain – because, when a planning decision has to be made, the effect of the relevant policies, taken together, may be exactly the same whichever construction is right (see paragraph 22 of my judgment in Barwood v East Staffordshire Borough Council). That of course may not always be so. One thing, however, is certain, and ought to be stressed. Planning officers and inspectors are entitled to expect that both national and local planning policy is as simply and clearly stated as it can be, and also – however well or badly a policy is expressed – that the court’s interpretation of it will be straightforward, without undue or elaborate exposition. Equally, they are entitled to expect – in every case – good sense and fairness in the court’s review of a planning decision, not the hypercritical approach the court is often urged to adopt.”

But “excessive legalism” is in itself a value-laden term. What is an acceptable level of “legalism”? What is the difference between correct legal interpretation and unacceptable legalism? Is legalism sometimes excessive even if it is based on a correct legal interpretation?
We have seen a similar approach by the courts in the retail planning area, where there is still much genuine uncertainty as to the proper application of the sequential test and specifically as to the flexibility required of the applicant in looking for potentially more central locations (NPPF, paragraph 24). I referred in my blog post Town Centres First? Two Recent Decisions (22 December 2017) to words of caution by Ouseley J, in refusing permission in relation to the Tollgate Colchester challenge) as to the dangers of relying too heavily on judicial interpretation of policy. We have now obtained a transcript of his judgment (contact me if you would like a copy). It includes this passage:

“I simply make this word of warning in the light of the decision I have come to, which I will shortly reveal, that what I said in Aldergate Properties also comes with a warning I gave in Aldergate Properties, that the language that the court uses to explain what a policy means in a particular context is not a substitute for the words of the policy itself, which fall to be construed and then applied in relation to the particular circumstances at issue. The words of para.24 are very simple but are intended, however, for application in a wide variety of circumstances, and no one phrase is necessarily apt for application, still less as a substitute, in all the circumstances. I had also intended by the use of the word “broad” and “approximate” something a little more flexible than the word “closely similar” as a substitute might have indicated.”

That may sound sensible, but the words of the policy allow for differing interpretations. How does one determine the appropriate interpretation for the specific circumstances and is the applicant and local community alike in the hands largely of the decision-maker? Is that the latitude the Government intended to give?
Whatever emerges as the draft revised NPPF really needs to be stress-tested and amended accordingly. Which are the words and phrases over which we will all inevitably fall out and how to lance those disputes now by a bit more clarity, rather than in court or at planning appeal? What is the Government willing to leave to authorities and inspectors to work out? I am not necessarily suggesting a longer document but certainly delineation between supporting explanatory test and policy; a more rigorous approach to defined terms, and an adjectival haircut. 
Simon Ricketts, 27 January 2018
Personal views, et cetera

Sajid Javid: Agent Of Change?

Sajid Javid’s statement Strengthened planning rules to protect music venues and their neighbours on 18 January 2018, confirming that the “agent of change” principle would be included in the revised NPPF, was widely supported. 
But this was hardly news was it? Go back to the February 2017 housing white paper:

Noise and other impacts on new developments 

A.140 The National Planning Policy Framework, supported by planning guidance, already incorporates elements of the ‘agent of change’ principle (this provides that the person or business responsible for the change should be responsible for managing the impact of that change) in relation to noise, by being clear that existing businesses wanting to grow should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established. 

A.141 We propose to amend the Framework to emphasise that planning policies and decisions should take account of existing businesses and other organisations, such as churches, community pubs, music venues and sports clubs, when locating new development nearby and, where necessary, to mitigate the impact of noise and other potential nuisances arising from existing development. This will help mitigate the risk of restrictions or possible closure of existing businesses and other organisations due to noise and other complaints from occupiers of new developments.

The latest statement takes this further forward not one jot. I was blogging about the agent of change principle back in October 2016 in my post Noise Annoys.

The prod for the 18 January announcement was the introduction into the House of Commons on 10 January 2018 of a private members’ bill, the Planning (Agent of Change) Bill, by Labour MP John Spellar. Following the debate on 10 January, the Bill (which has not actually been published at this stage, as is often the case with private members’ bills of this nature which are largely intended just intended to draw attention to an issue) was due to receive a second reading on 19 January but this has now been postponed until 16 March. Presumably the intention of the bill was simply to keep the Government focused on what it had already indicated to do. If this is how politicians have to spend their time but it all seems odd to this outsider. 
The agent of change concept really now does have momentum, with a strong campaign run by the Music Venue Trust and supported by the Local Government Association. It is frustrating that even such an apparently simple change to policy (oversold in Javid’s statement as a new “rule”) takes so long to introduce. 
The Welsh Assembly was able to move rather faster, introducing an equivalent policy change by its letter letter Supporting the Night Time Economy and the Agent of Change Principle (26 May 2017):
Existing policy in Planning Policy Wales already says new uses should not be introduced into an area without considering the nature of existing uses. Under the agent of change principle, if new developments or uses are to be introduced near a pre-existing business, such as a live music venue, it is the responsibility of the developer to ensure solutions to address and mitigate noise are put forward as part of proposals and are capable of being implemented. 

PPW also encourages local planning authorities to consider the compatibility of uses in areas and afford appropriate protection where they consider it necessary, as part of their development plans. The revisions to PPW will add to this and allow for the designation of areas of cultural significance for music through development plans.”



The letter advises Welsh planning authorities that they “should begin to apply this principle, where it is a relevant consideration, with immediate effect.” Javid could have taken this approach with his 18 January announcement and it is a disappointment that he did not.  
The Mayor of London has also of course introduced a policy into the draft London plan. 



There has also been coverage this week of the supposed news of further slippage in the publication of the draft NPPF, which would cause further delay to the final document. Senior MCHLG servant Melanie Dawes was reported in Planning magazine as saying to the CLG Commons Select Committee that it would be “ready for consultation in the next few months – I hope just before Easter or thereabouts”, meaning that we should assume it may be at the end of March (“or thereabouts”!). But again, this wasn’t news, given that Government chief planner Steve Quartermain’s 21 December 2017 letter to local authorities had promised the draft “early” in 2018. The letter states that the final version of the revised NPPF would be “before the end of the summer“. In my view this is careful wording: we should not necessarily assume that we will see it this side of the Parliamentary recess (which starts on 20 July). Which of course has an immediate influence on those authorities who had either been rushing to submit their local plans by the end of March 2018 or waiting until after that deadline, depending on their tactical judgment as to how they would be affected by the proposed standardised methodology for assessing housing needs – that end of March deadline is now a late summer deadline. 

Honestly, it would be enough to make one scream, if it wasn’t for the neighbours. 
Simon Ricketts, 19.1.18
Personal views, et cetera