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.

Angelic: Public Benefits Of Unlawful Demolition In Conservation Area

There was an interesting piece this week by Sarah Townsend on the Planning Resource website: Why planning enforcement notices have dropped to their lowest-ever level (subscription only, 29 August 2019).

There was also an interesting ruling from the High Court, London Borough of Tower Hamlets v Secretary of State and Angelic Interiors Limited (in administration) (Kerr J, 27 August 2019), which will have made every enforcement officer, and indeed conservation officer, blink. Although perhaps the facts are unusual.

In June 2016, enforcement officers at the London Borough of Tower Hamlets were tipped off that the buildings comprising 2, 4 and 6 East Ferry Road London E14, within the Coldharbour conservation area, had been demolished without planning permission. It is of course a crime, as well as a breach of planning control, to cause or permit demolition of a building in a conservation area without planning permission.

The council wasn’t certain who had done it, although an individual has since admitted responsibility, and it did not prosecute.

As was reported at the time (BBC website, 27 September 2017), the council served various enforcement notices, requiring that within 18 months the owner was to “rebuild the building so as to recreate in facsimile the building as it stood immediately prior to its demolition on 26 June 2016 with reference to the photographs and plans (LBTH file reference PA/84/00512 & PA/81/00497 originals of which are available at the Tower Hamlets Council’s Town Hall)

In fact there had been a long-running dispute as to who owned the property, which was only resolved in October 2018, in favour of a company called, ironically, Angelic Interiors Limited, which had been in administration since July 2016. Angelic’s administrators appealed against the enforcement notices.

Enforcement appeal decision letter

The inspector, Simon Hand, allowed the appeals in a decision letter dated 17 December 2018.

In order to place Kerr J’s judgment this month into context, it is illuminating to read the decision letter.

Here are some key passages:

Nos 2-6 were the last surviving remnant of the once large area of Victorian workers housing in Cubitt Town which occupied the whole of the south-eastern side of the Isle of Dogs.”

There is […] no dispute the removal of the buildings causes less than substantial harm to the Coldharbour conservation area. The conservation area is a designated heritage asset and paragraph 193 of the NPPF makes it clear that great weight should be given to any less than substantial harm to the significance of a heritage asset. Paragraph 194 goes on to say that any loss of significance to a heritage asset should require clear and convincing justification (my emphases). Paragraph 196 explains that where there is less than substantial harm to a heritage asset is should be weighed against the likely public benefits arising from that harm.”

If they were to be rebuilt then they would undoubtedly be very nice, but the issue is what role do they play in the significance of the conservation area and the answer would seem to me to be very little.”

Had the demolished buildings been of historic interest in their own right they would have been worth preserving simply for that reason, but they would still have told us little or nothing about Cubitt Town, its development, or its morphology. The development of Cubitt Town does not seem to have been unusual in any way, nor any of its buildings particularly special, it is not until this Inquiry that anyone at the Council has made any mention of it at all. To my mind the dwellings were not the last fragment of a historically significant but now lost development. They were simply three remnant buildings in a sea of modern development. To suggest that this makes it all the more important to preserve them is to adopt a collector’s mentality, particularly as they seemed to have no great historic significance themselves due to the substantial modern changes they had undergone.”

Both parties accepted the loss of the buildings had caused less than substantial harm to the significance of the conservation area, and I would not like to suggest their loss causes no harm at all, but I consider that the harm is very much at the lowest end of that scale. It was argued that if the site is left vacant or redeveloped there would be no reason to retain it in the conservation area and this would seem to be true, but it does call into question the motivation for extending the conservation area in the first place. Had it been deliberately to protect this remnant of Cubitt Town, then I would have expected somewhere for this to have been explained. I accept the conservation area appraisal is lacking in detail, but if Cubitt Town was of such importance as Mr Froneman argued, then I find it hard to believe the reason for the extension to this allegedly key part of the Isle of Dogs is deliberately not mentioned as the appraisal explains only that the extension was in order to protect Glen Terrace. It seems to me more likely the Council just saw these Victorian looking buildings and took the opportunity to include them, as there was nothing else of any historic interest in the area. Whatever the truth of the matter whether or not the vacant site remains worthy of conservation area status is of little importance in this case.”

The inspector found this to be an area of high housing need and “there would appear to be no constraints that would prevent a housing scheme of significantly greater density than 3 units from being successful on the site.”

it would seem highly likely that a suitable development proposal could be found and there are no obvious reasons why the landowner would not want to realise the development potential of the site.”

Paragraph 196 of the NPPF requires that the harm should be weighed against any public benefits. In this case those benefits are the redevelopment of the site with a much larger number of dwellings than would be the case if the demolished houses were rebuilt, including much needed affordable housing, all of which would be in accord with the prevailing policy ethos for the area. I accept these benefits are speculative, but in my view there is a good chance they would be realised. It seems likely to me that even had the buildings still been in place, given their poor condition and lack of any historic significance, they would have been demolished to make way for a comprehensive redevelopment scheme. Consequently, I consider these benefits outweigh the harm identified. The demolition of the three dwellings is thus in accord with the NPPF and the development plan for the area and so I shall grant planning permission accordingly.

So he found that the potential for redevelopment for housing purposes of the unlawfully cleared site amounted to a sufficient public benefit to outweigh the “great weight” to be attached to the (very much) less than substantial harm that had been caused to the character or appearance of the conservation area.

High Court

The council challenged the decision letter.

Kerr J identified the main issue before him as “whether the “public benefits of the proposal” (in the words of NPPF paragraph 196) should extend to likely benefits of new development of a site, facilitated by demolition of buildings on the site, where there is no current application for planning permission to develop the site; or whether those words are restricted to the public benefits of demolishing the buildings, without considering any likely future development.

The judge did not find this to be an easy case:

It is counter-intuitive to propose that unlawful (and criminal) demolition of buildings forming part of a conservation area, harming the significance of that conservation area, can do more good than harm. No sensible planning application to demolish would be made on that basis and a planning consultant suggesting such an application would soon be short of clients.

Still, for the inspector’s decision to be lawful, and for the challenges to fail, it has to be a defensible conclusion that demolition without replacement, leaving the site razed to the ground and vacant, without any replacement development, and doing harm to the significance of the conservation area, is more good than bad. Baldly stated in that way, the proposition is remarkable.

My first thought on hearing argument was that the proposition cannot be correct. If only demolition is on the table, and demolition is harmful, how then can it do more good than harm? Can it be good and bad at the same time, and more good than bad?

The judge concluded that it was simply a matter for factual evaluation for the inspector.

I accept the respondents’ interpretation of the heritage provisions in the NPPF with a degree of hesitation. I am conscious that it is a liberal construction and not a strict pro-heritage construction such as the council is advocating. Nevertheless, on balance I think the respondents’ is the correct one, bearing in mind that the NPPF provisions are statements of policy not law and the language of the provisions is not restricted in the way the council contends.”

He considered whether the inspector’s decision could be said to have been irrational:

I reject the council’s free standing contention that, quite apart from the interpretation of the NPPF provisions, it was irrational to decide that the market would produce suitable and beneficial housing development soon. It is true that the inspector could not say what type of development that would be, nor that it would certainly occur; but those were points he was entitled to weigh when considering the public benefit side of the balance.

I do not see any want of rationality in reasoning that the site would soon attract developers like flies to a honeypot and that this would probably have led to demolition of the three houses soon anyway. The circumstantial evidence supporting that finding was not lacking: the prime location, the pressing need to build housing in the borough, the appetite shown by other housing developments nearby, the indicative Turner scheme and the intention to sell and strong likelihood of sale of the site for development.”

Lastly, he considered whether the inspector’s decision was adequately reasoned:

As for the reasons challenge, did the inspector properly set out his thinking? Manifestly, he did. The reasoning need not be discursive. It is commendably succinct but clear and full. He explained exactly why he was confident that delivery of the public benefit he anticipated could be left to the market. He made all the points I have just mentioned, in support of his conclusion. The council cannot complain that it does not know why it lost the appeals.

I did consider carefully whether the reasoning touches adequately on the possibility of a development scheme that would leave the three houses intact, whereby the developer would build round them and keep them in place. If the inspector had simply assumed, without considering the issue properly, that the public benefits derived from anticipated development would be lost unless the demolition were permitted, that could have been a flaw in the reasoning.

However, I have concluded that the inspector did adequately, though briefly, consider this point and that it was a matter for his planning judgment. His consideration of likely development proposals such as the one illustrated by the Turner scheme (involving 22 new dwellings) included the council’s 2005 discussions which would have involved demolition of the three houses.”

He dismissed the challenge, albeit with a final bit of judicial hand-wringing:

I do so without much enthusiasm, reminding myself that the enforcement system is remedial not punitive. I must put aside the affront to the rule of law and criminal activity seen in this case, as well as the loss of the three houses and their contribution to our historic environment, however limited some may consider it. My discomfort does not make the inspector’s decision unlawful and I must and do uphold it.”

Implications

Plainly, unlawful actions should in principle not go unpunished and it is disappointing that there have been no prosecutions.

Plainly also, Angelic’s administrators now have an unearned windfall by virtue of a cleared site for development with no obligation to reconstruct the buildings that others had unlawfully demolished on the site.

That is not to say that the enforcement notices should have stood and that replicas of these apparently unexceptional buildings should have been required, simply to discourage others from similar conduct, but what is there in this unfortunate chain of events to encourage appropriate behaviour on the part of future Angelics?

Simon Ricketts, 31 August 2019

Personal views, et cetera

Gestation Of An Elephant: Plan Making

Keith Hill, then housing and planning minister, once described the process to Royal Assent of what became the Planning and Compulsory Purchase Act 2004 as “the gestation of an elephant”. It took 17 months. Given that the average gestation period for an Asian elephant is 18 to 22 months he wasn’t far off.

However, he would have been more accurate using the metaphor in relation to the local plan examination processes that were conceived by way of the Act. Lichfields’ January 2019 statistical report Planned up and be counted: Local Plan-making since the NPPF 2012 concludes that the average examination length under the 2012 NPPF has been 18 months.

My 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism attempted to go into some of the reasons for that.

15 years on from the 2004 Act, it is interesting to set what the aspirations of the Government of the time were, as against some examples of current examination processes up and down the country.

Barbara Roche in the House of Commons on 17 December 2002, introducing the Bill for a second reading:

We want to make the system fairer, faster and more predictable and to bring to planning clarity, certainty and more strategic direction.”

Lord Rooker in the House of Lords 6 January 2004:

“…the Bill sets out a reform planning system for this new century that will help us to deliver sustainable communities faster and more fairly—it is no good being faster unless it is fairer.”

What will the Bill do? It simplifies the plan-led process by abolishing the middle tier of planning—the structure plans—that exists in some areas; that is to say, areas where there are county councils and two-tier local government. The new system will have two linked levels of planning: regional spatial strategies and local development frameworks. The local development frameworks will be made up each of a set of local development documents, which each authority will be required to prepare. Together, these documents will replace local plans and unitary development plans. They will set out development proposals and have a clear map so that everyone can see what goes where.”

The Conservative peer Lord Hanningfield in response:

In introducing the legislation, the Minister pointed out that the Government seek to make the planning system simpler and quicker, aims which we support. However, we believe that the proposals risk achieving the opposite outcomes. This legislation will unleash regional spatial strategies, local development schemes, local development frameworks, local development documents, action area plans, simplified planning zones and statements of community involvement. How will all these plans and schemes, with their different timetables, consultations, inspections and appeals, make the system more transparent or streamlined? This level of complexity and fragmentation will accelerate public disenchantment with the system. It will lead to uncertainty, delay and planning by appeal.”

Looking back at the scrutiny of the Bill in Public Bill Committee on 23 October 2003 for instance, Geoffrey Clifton-Brown, then shadow spokesman for Communities and Local Government, responding to planning and housing minister Keith Hill, also pretty much called it right (but it was what we all said at the time):

I accept a lot of what the Minister said in his long speech about the deficiencies in the existing system, such as the inflexibility as well as the time and difficulty in getting a revision due to the need to revise the whole plan. We feel that the existing system with amendments could have been made to work and that tearing it up and replacing it with a highly complicated new system will make a paradise for lawyers. We will see judicial reviews and all manner of case law created as a result of the Bill, which will add to the delay that it will bring.”

I accept absolutely, however, what the Minister said about the existing system being inadequate, in that it is too slow and that 31 authorities do not have a plan in place. The Committee will not be surprised to learn that a number of practitioners and large developers who use the planning system have been through my offices in the last few weeks. The one thing they all say is, ”For goodness’ sake, we hope that this new system is going to be quicker and clearer, but we don’t think it is.” The test of time will prove that, but we need to ensure that the system will operate.”

Time will tell whether that new system works, but I have a new acronym— CHAOS, which stands for ”Can Hill’s Alternative Objectives Succeed?” I submit that they will not.”

Nothing is black and white in planning. It is not that there is chaos, but, guess what, the system is no quicker or clearer. We no longer have lengthy adversarial local plan inquiries but we are seeing increasingly lawyer-heavy local plan examinations (cross-examination having been replaced by duelling legal opinions), that can turn into utter sagas of successive rounds of inspectors’ preliminary findings, further work, further consultation and rescheduled hearing sessions. Outcomes are unpredictable. There is a lack of statistical transparency across the piece as to how the system is performing.

It took 28 months from submission of the Cambridge and South Cambridgeshire local plans for examination on 28 April 2014 to publication of the inspectors’ final report on 3 September 2018. Is that a record?

If so, it won’t be for long. From those plan examinations that I am immediately aware of:

Welwyn Hatfield will soon overtake that. Its plan was submitted for examination on 15 May 2017. During the course of the hearing sessions, the inspector was not satisfied that the council had allocated sufficient housing sites and the council embarked on a further call for green belt sites for possible release but misjudged how long the process would take, or simply failed to manage the process properly, leading the inspector to issue his 8 August 2019 letter to the council. You can sense the frustration in his tone. There is now no likelihood that the examination will be completed by May 2020, as the council had suggested back in March. If the council is not able to revise the timetable, “putting forward realistic time periods and milestones for the conclusion of all the outstanding tasks, including the hearings…or slippage continues to occur [beyond April 2020] then I think we should consider the option of you withdrawing the plan with a view to re-submitting it for Examination when the work is finally completed and there are no obvious soundness issues accompanying it”.

The North Essex Authorities section 1 local plan will run and run. The plan was submitted for examination on 9 October 2017. The inspector was not satisfied with the sustainability appraisal work underpinning identification of three new garden cities and raised concerns as to soundness in his 8 June 2018 letter. He gave the options of removing the garden cities from the plan on the basis of a commitment to an early review, or doing further working and undertaking further consultation. The authorities chose the latter course. Consultation starts on Monday until 30 September 2019 before further hearing sessions are then arranged, according to the inspector’s August 2019 update.

The Windsor and Maidenhead local plan was submitted for examination on 31 January 2018. The council has had to do various strands of further work since the stage 1 hearings which took place last year. Another frustrated inspector – her letter dated 21 June 2019 presses the council for “as much detail as possible” as to the likely implications for the plan of each strand and the number and nature of changes that it is likely to propose:

In making this assessment, please consider whether continuing with the examination of the submitted Plan is the most prudent course of action in light of the work you are doing and of the potential issues reported in our previous correspondence. If you remain of the view that the examination should continue, please set out clearly the steps necessary before hearings can resume along with a realistic timetable for the process. I would also ask you to consider whether a procedural hearing might be a useful means of clarifying the process for all parties and, if so, when it could take place.”

The St Albans local plan was submitted to the Secretary of State for examination in March 2019, following the failure of the previously submitted plan on the basis of the inspector finding that the duty to cooperate had not complied with. The hearing sessions were due to begin in October 2019 but already the examination has run into the sand. The council responded in detail on 31 July 2019 to initial questions from the inspectors. When I say “in detail”, their response as to its approach to proposed green belt releases runs to over 70 pages (an explanation that should surely have been available when the plan was initially submitted). The council has now confirmed that the stage hearing sessions will not be taking place until January and February 2020.

The York local plan was submitted for examination in May 2018, following years of delay and political disagreements. 15 months on, there is no sign of any hearing sessions. Consultation closed on 22 July 2019 in relation to a proposed revised housing need figure and other documents as well as a number of proposed consequent modifications to the plan.

And so it goes on. The North Warwickshire local plan was submitted for examination in March 2018. The inspector’s letter dated 24 June 2019 following the hearing sessions sets out various unresolved issues, the main one being the plan’s reliance on a HIF funding bid of around £58m which has not yet been awarded. The inspector puts forward three possible options for the council and recommends that in the first instance the council pursues option (a), which “may mean suspending the examination for a short period”:

a. await the outcome of the HIF bid and unambiguously identify the likely source(s) of funding for the dualling of the A5; or

b. put forward alternative sites that do not rely on highways improvements for which funding is not certain or unknown; or

c. withdraw the plan

The inspectors’ approach with the West of England joint spatial plan (submitted for examination in April 2018) – to recommend, after the first hearing sessions, withdrawal of the plan, in their letter dated 1 August 2019 – was perhaps a more realistically decisive response than the make-do-and-mend pragmatism that is leading time and time again to these prolonged examination processes, although equally unsatisfactory for the participants. They will provide more detailed reasoning later this month, but the inspectors have a series of concerns as to how the “strategic development locations” in the plan were selected against reasonable alternatives. They question whether further work could be carried out “with the necessary objectivity, rather than being an exercise to justify a predetermined spatial strategy.

It would obviously be better for all concerned if work is done to the necessary standard before plans are submitted. Why isn’t it? The problems can’t all be laid at the door of the 2012 NPPF and the uncertainties arising from the 2012 system of assessing housing need. Or of the prescriptive requirements of strategic environmental assessment.

Is it a lack of guidance, too many fudged compromises pre-examination or simply a system that is not fit for purpose?

Or, to mix mammalian metaphors, is it that, if the system was an elephant, perhaps now it is a camel? For example, crucial components of the 2004 brave new world were (1) the setting of numbers by way of regional spatial strategies (a process that proved slow and difficult, with little public appetite for directly elected regional assemblies), abolished once the coalition government took control in 2010, and (2) the concept that the local development scheme would comprise a variety of development plan documents, being updated at different times, but now encouraged to be bundled back together as local plans and thereby as cumbersome as the complex documents the 2004 system sought to replace. Tinkering has not necessarily improved.

An elephant would never forget the meandering way in which we ended up with our present planning system.

One hump or two?

Simon Ricketts, 17 August 2019

Personal views, et cetera

Pic courtesy of Wikipedia

Bad Timing: More On Appropriate Assessment From Court & Govt Post POW

This is intended to be an update as to appropriate assessment under the Conservation of Habitats and Species Regulations 2017 rather than a blog post on the domestic effect of EU environmental law post-Brexit.

But I’ll address that briefly first:

EU environmental law post-Brexit

The position remains pretty much as summarised in my 18 September 2018 blog post Planning, Brexit, supplemented by my 22 December 2018 blog post The Office For Environmental Protection. Whilst there is a general initial saving for EU-derived domestic legislation and whilst section 16 of the EU (Withdrawal) Act 2018 sets a process for maintaining EU environmental principles, the “no deal” risks are still that:

(1) the latter depends on an Environment Bill being laid before Parliament and enacted (we so far have only seen draft provisions of the most directly relevant parts of what is proposed), a set of draft environmental principles being consulted upon and approved and the new Office for Environmental Protection being established, all before 31 October 2019 and

(2) post-Brexit, all EU-derived domestic legislation will be reviewed as to its continuing appropriateness and the degree of protection as regards this, presently provided by the environmental principles and governance mechanism in section 16, could easily be amended, replaced or sidestepped by this or a subsequent government.

DEFRA published an Environment Bill summer policy statement on 23 July 2019 but, whilst I am sure the war cabinet talks of little else, there simply is not the time available for the environmental principles and governance machinery to be up and running by the end of October 2019. Even when the machinery is established, it is susceptible to subsequent tinkering and dismantling by way of subsequent legislation.

Appropriate assessment

The immediate implications of the European Court of Justice’s ruling in People Over Wind were covered in my 20 April 2018 blog post EU Court Ruling: Ignore Mitigation Measures In Habitats Screening.

In England and Wales the main problems caused by the judgment have revolved around:

(1) authorities being caught out through no longer being able to screen out the need for appropriate assessment by relying upon commitments to introduce mitigation measures;

(2) until the February 2019 changes to the NPPF, the disapplication of the NPPF’s “tilted balance” where appropriate assessment is required.

MHCLG has now included within its Planning Practice Guidance a specific section dealing with appropriate assessment (22 July 2019).

By coincidence, two days after the new guidance was published, two separate judgments were handed down by the High Court on different aspects of the appropriate assessment regime, both cases stemming from People Over Wind issues and both cases examples of plain bad timing.

Gladman Developments Limited v Secretary of State (Dove J, 24 July 2019) was a challenge by Gladman to the dismissal by the Secretary of State of its appeal in respect of a proposed development of 225 dwellings in Cliffe Woods, Kent.

The inquiry had been held in November 2017, pre People Over Wind. The parties agreed that the tilted balance applied in favour of the proposal as there was a shortfall in the Medway Council’s five year housing land supply. The parties also agreed that a condition requiring an environmental construction management plan was sufficient to mitigate any ecological concerns. Following an HRA screening process that took into account a financial contribution towards a strategic access management and mitigation strategy (SAMMS) “no adverse consequences were identified in respect of the impact of any additional recreational pressures on the Thames Estuary Marshes SPA/RAMSAR and the Medway Estuaries and Marshes SPA/RAMSAR sites.”

The inspector recommended approval in his report dated 29 March 2018. The People Over Wind judgment was handed down on 12 April 2018. The Secretary of State invited representations from the parties as to whether appropriate assessment was now required in the light of the judgment, and on their views as to the correct application of planning policy in the light of it – a reference to paragraph 119 in the 2012 NPPF which disapplied the tilted balance in circumstances in the case of development requiring appropriate assessment.

Gladman submitted as part of its representations a report prepared by its ecologists, information to ensure that the inspector could carry out appropriate assessment and reach a conclusion that there were no likely significant effects on the integrity of of the SPAs. It also submitted that it would be “illogical and perverse to disengage the tilted balance in these circumstances”.

Before the Secretary of State reached his decision on the appeal, more generally on 26 October 2018 he embarked a technical consultation as to potential changes to the methodology for assessing local housing need and as part of that consultation he sought views on his proposal to amend the NPPF to make it clear that the tilted balance “is disapplied only where an appropriate assessment has concluded that there is no suitable mitigation strategy in place”, having missed the opportunity to make that change in the 24 July 2018 version (within which paragraph 177 simply replicated the old paragraph 119).

The Secretary of State’s decision letter was issued on 9 November 2018. He found that appropriate assessment was required and stated that on the basis of the appropriate assessment which he had carried out he could “safely conclude that the proposed development would not adversely affect the integrity of any European site”. He noted that under paragraph 177 of the 2018 NPPF “the presumption in favour of sustainable development does not apply where development requiring appropriate assessment is being determined”. He dismissed the appeal.

Gladman challenged the decision on a number of grounds, including irrationality in his application of paragraph 177 in the circumstances of the appeal, failure to have regard to the contents of the technical consultation, failure specifically to consult Gladman in relation to the technical consultation and contending that People Over Wind was wrongly decided, requiring a reference to the CJEU to clarify the position.

Dove J rejected all of the grounds. There was nothing unlawful in the way in which the Secretary of State had applied paragraph 177. It was “applied in a straight forward and uncomplicated manner to the circumstances of the present case”. The technical consultation was only a consultation. Indeed:

I see nothing wrong, and indeed much to commend, in an approach whereby a decision-taker continues to apply existing policy whilst it is subject to review, and await the outcome of a consultation process on the review of a policy before applying any new policy which might emerge. For a consultation exercise to be lawful it must be engaged in with an open mind. That must contemplate a number of potential outcomes from the consultation process, (including, potentially, no change to the policy) which could be undermined by the premature second guessing of its outcome through the application of a policy which was being consulted upon. In my view the First Defendant’s approach in applying his existing policy in the present case was in principle entirely correct.”

There was no basis for asserting that Gladman should have been specifically consulted as part of the technical consultation and in any event they had not been prejudiced by any failure to consult.

Lastly, he was unpersuaded that there was any justification for the reference sought to the CJEU or that People Over Wind was wrongly decided: “the need for full and precise analysis removing all reasonable scientific doubt, reflects a consistent line of authority in the CJEU emphasising these features of the requirements of the Habitats Directive…Whilst there may be cases in which the existence of significant effects could be addressed by the examination of mitigating measures at the Appropriate Assessment screening stage that is not, in principle, any justification for not undertaking the Appropriate Assessment itself.” Furthermore, as also relied upon by the CJEU in People Over Wind, “the taking account of mitigation measures and exclusion of the Appropriate Assessment process may also deprive the public of a right to participate in the decision-taking process.”

The final kick in the teeth for Gladman must have come when, after the 24 July 2018 version of the NPPF missed the obvious opportunity to resolve the widespread problems caused by People Over Wind, it was finally put right in the 19 February 2019 version. So if the decision letter had been issued either at least six weeks before the 12 April 2018 ruling in People Over Wind (such that the decision was beyond the legal challenge period) or after 19 February 2019, the chances are they would have had their permission. A Secretary of State who actually wanted to see housing would surely have sorted out the policy issue more quickly – or delayed the decision letter. Bad timing indeed.

The timing was similarly awkward in R (Wingfield) v Canterbury City Council & Redrow Homes South East (Lang J, 24 July 2019). Outline planning permission was obtained on 5 July 2017 for up to 250 dwellings and associated development at Hoplands Farm, Westbere, Kent. The site is near SPAs and an SAC. On the basis of mitigation proposals, Canterbury City Council concluded, having taken advice from Natural England, that appropriate assessment was not required.

The judicial review period expired without challenge and the site was sold to the interested party, Redrow Homes. Reserved matters approval was sought in December 2017 for the first phases of development. Then came that People Over Wind ruling on 12 April 2018. In the light of the judgment, the council carried out an appropriate assessment and concluded that, with mitigation, the project would have no adverse effect on the integrity of the European protected sites. Reserved matters approval was granted on 12 February 2019.

The claimants argued that “the Council acted in breach of EU law by failing to conduct an HRA before granting outline planning permission and impermissibly taking into account mitigation measures when screening the proposed development, contrary to the CJEU judgment in the People over Wind case. The effect of the judgment of the CJEU was to render the grant of outline planning permission a nullity, which could no longer be relied upon. Further or alternatively, when the Council realised its error, it should have revoked the outline planning permission and re-considered the application. Instead, it unlawfully conducted an HRA at the reserved matters stage, when it should have been conducted at the earliest possible stage, before the grant of outline planning permission.

Lang J rejected both arguments. The submission that “the effect of the judgment of the CJEU in People Over Wind was to render the grant of outline planning permission a nullity was both contrary to authority, and wrong in principle. A decision made by a public body is valid unless and until it is quashed”. Further, “the Council could lawfully conduct an appropriate assessment at the reserved matters stage, in the circumstances of this case”.

In considering whether the Council could legitimately remedy its earlier error by conducting an appropriate assessment at reserved matters stage, instead of revoking the grant of outline planning permission, I have taken into account that the consequences of revoking planning decisions long after they have been made, and the time limits for challenge have expired, are disruptive and undermine the principle of legal certainty. As Laws J. said in R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd [1998] Env LR 415, at [424], applicants for judicial review must act promptly, so as to ensure that the proper business of government and the reasonable interests of third parties are not overborne or unjustly prejudiced by litigation brought in circumstances where the point in question could have been exposed and adjudicated without unacceptable damage.

In this case, the IP acquired its interest in the Site after outline planning permission had been granted and the time for bringing a judicial review challenged had expired. Although building operations have not yet commenced, time and money has been spent in bringing this project to fruition. The Council considers that the development will bring tangible benefits to the community, although local residents, such as the Claimant, take a different view.

In my judgment, the Council’s decision to remedy its earlier error by conducting an appropriate assessment at reserved matters stage was permissible under EU and domestic law, and it was a proportionate and effective remedy for the breach of EU law […]

Alternatively if my analysis is not correct, I would nonetheless refuse relief in this case. The Court may refuse relief where there has been a breach of EU law, if the substance of the EU right has been complied with.”

The claimant also sought to argue that the HRA was deficient. It was not:

the HRA conducted by the Council was appropriate for the task in hand, particularly bearing in mind that the Council was able to draw upon the detailed research and assessment in the ‘Report to inform a Habitats Regulations Assessment’, as well as the further reports submitted by the IP. Its findings were complete, precise and definite and there were no significant lacunae. The Council was entitled to rely upon Natural England’s endorsement of its HRA, particularly since Natural England had initially raised concerns about the evidence-base provided by the applicants, and those concerns were addressed by the further evidence produced by the IP. Natural England, as the custodian of the Stodmarsh designated sites, was particularly well placed to judge the risks from the proposed development. In my view, the Claimant’s challenge did not come close to meeting the high threshold of Wednesbury irrationality; it was primarily a disagreement with the Council’s exercise of its planning judgment.”

So bad timing in this case for the claimant, unable to take advantage of the windfall that People Over Wind appeared to represent.

Even if we leave the EU, I suspect that we will not be leaving behind these sorts of arguments for a good time yet – and it is apparent from the Gladman case that (1) the resulting trip hazards are as often those introduced by our own domestic policies and (2) when it comes to CJEU cases such as People Over Wind, however inconvenient, our domestic courts are not going to be turning the clock back.

Simon Ricketts, 2 August 2019

Personal views, et cetera

National Lottery: 2 Problematic Recovered Appeal Decisions

The exercise of the Secretary of State’s power to call in applications and recover appeals for his own determination is inherently politically charged.

This blog post focuses on two recent recovered appeals. The other reverse lottery, of call in, is for another day.

The Secretary of State’s policy as to recovering appeals is handily summarised in section 6 of the House of Commons briefing paper Calling-in applications (England).

Wavendon, Woburn Sands

If anyone thinks that the Secretary of State’s intervention in this case did anything other than, at the request of a fellow MP, frustrate or delay the delivery of homes in accordance with national policy, and in so doing place unjustified financial pressure on an SME housebuilder, then do let me know.

This relates to a relatively small proposal for the development of 203 homes at Woburn Sands, Buckinghamshire. The application was made to Milton Keynes Council in July 2016 and refused in December 2016, against officers’ recommendations.

The developer, Storey Homes, appeals. An inquiry takes place over six days in July 2017, with an extremely experienced inspector, David Cullingford.

The proposal is locally controversial, with various objectors appearing at the inquiry, including three councillors. I can only assume that objectors are spooked by the way the inquiry goes because in August 2017 the councillors then ask the then planning minister to recover the appeal for the Secretary of State’s own determination. The request is refused. But they don’t stop there.

As reported at the time in MK Citizen (2 November 2017) local Conservative MP Iain Stewart then writes a billet doux to the then Secretary of State:

The letter […] starts with ‘Dear Sajid’, and thanks him for his “kind” email on Mr Stewart’s election to the government’s transport committee.

It states: “I implore you to intervene in any way you can to at least delay the announcement of the Inspector’s decision.”

It ends: “Yours ever, Iain

Anyway the charm works, and the appeal is recovered on 31 October 2017.

There is then an elongated period of post-inquiry correspondence. The most significant issue was whether Milton Keynes Council could show five years’ housing supply or whether the NPPF tilted balance applied. All the evidence points to the position being as shown by the appellant at the inquiry – less than five years’ supply.

It turns out that the objectors were right to be worried by the way the inquiry had gone. When the Secretary of State published his decision letter on 5 December 2018, they could see that the inspector in his 2 February 2018 report had indeed recommended that the appeal be allowed, finding that there was less than five years’ housing supply and that taking all considerations into account he considered “that the planning balance in this case is firmly in favour of the scheme. The benefits of this sustainable housing proposal would significantly and demonstrably outweigh the adverse impacts elicited.”

But hey never mind, babychams all round, Mr Stewart’s intervention had done the job for the objectors because the Secretary of State’s decision was to reject the inspector’s recommendation and dismiss the appeal. On the basis of some not fully explained calculations, the Secretary of State determined that there was indeed five years’ supply: “Taking all these factors into consideration, he considers that on the basis of the evidence put forward at this inquiry, estimated deliverable supply is roughly in the region of 10,000– 10,500. The Secretary of State therefore considers that the housing land supply is approximately 5.9–6.2 years. He notes that on this basis, even if the emerging plan figure of 1,766 were used (1,854 with a 5% buffer added), as the agent proposes, there would still be an estimated deliverable housing land supply of over 5 years.”

This conclusion of course meant that the tilted balance in what is now para 11(d) of the 2019 NPPF did not apply, “the policies which are most important” for determining the appeal were not automatically to be treated as out of date and he could therefore find that the proposal “conflicts with development plan policies relating to development outside settlement boundaries and density. He further considers that it is in conflict with the development plan as a whole.

The Secretary of State considers that the housing benefits of the scheme carry significant weight and the economic benefits carry moderate weight in favour of the proposal.

The Secretary of State considers that the low density of the appeal proposal carries significant weight against the proposal, while the location in unallocated open countryside outside the development boundary of Woburn Sands carries moderate weight, and the impact on the character of the area carries limited weight. He further considers that the minimal harm to the listed building carries little weight and that the public benefits of the scheme outbalance this ‘less than substantial’ harm. The heritage test under paragraph 196 of the Framework is therefore favourable to the proposal.

The Secretary of State considers that there are no material considerations which indicate the proposal should be determined other than in accordance with the development plan. He therefore concludes that the appeal should be dismissed, and planning permission should be refused.”

Many would have given up this apparent lottery at that point, but all credit to Storey and to their legal team, Peter Goatley and James Corbet Burcher (No 5 chambers) together with Stephen Webb (Clyde and Co). The decision was duly challenged in the High Court and has now been quashed by Dove J in Wavendon Properties Limited v Secretary of State (Dove J, 14 June 2019)

The judge found the Secretary of State’s reasoning to be inadequate in relation to the critical question as to whether there was five years’ supply of housing land:

“All of these factors lead me to the conclusion that the reasons provided by the First Defendant in relation to the figure were not adequate in the particular and perhaps unusual circumstances of this case. By simply asserting the figures as his conclusion, the First Defendant has failed to provide any explanation as to what he has done with the materials before him in order to arrive at that conclusion, bearing in mind that it would have been self-evident that it was a contentious conclusion. Simply asserting the figures does not enable any understanding of what the First Defendant made of the Inspector’s conclusions which he accepted in paragraph 17 of the decision letter, and how they were taken into account in arriving at the final figures in his range.

“I accept the Claimant’s submission that the need for the range to be in some way explained is not requiring reasons for reasons, it is simply requiring reasons for a conclusion which was pivotal in relation to the application of the tilted balance in this case, and which derived from figures which had not been canvassed as an answer to the question of what the Second Defendant’s housing land supply was anywhere in any of the material before the First Defendant prior to the decision letter.”

In passing, there are two other interesting aspects to the judgment:

1. An analysis of what is meant in paragraph 11(d) of the NPPF, when, separate from questions of five years’ supply, you are considering whether “the policies which are most important for determining the application are out-of-date“. Unsurprisingly, Dove J concluded that this is “neither a rule nor a tick box instruction. The language does not warrant the conclusion that it requires every one of the most important policies to be up-of-date before the tilted balance is not to be engaged. In my view the plain words of the policy clearly require that having established which are the policies most important for determining the application, and having examined each of them in relation to the question of whether or not they are out of date applying the current Framework and the approach set out in the Bloor case, an overall judgment must be formed as to whether or not taken as a whole these policies are to regarded as out-of-date for the purpose of the decision.

2. The judge’s agreement with the Secretary of State that a section 106 planning obligation by the housebuilder to use its reasonable endeavours to build out the development within five years of the council approving the last reserved matters application was not a material consideration to be taken into account. One to return to, once perhaps we see the Government’s promised green paper on measures to improve delivery and other matters.

Of course the housebuilder is not yet out of the woods. Back the appeal will go to the Secretary of State of the day for redetermination as against whatever the housing supply position, and national policy position, happens to be at that time, whenever it will be. The problem doesn’t just lie in the arbitrary nature of the recovery process (it is particularly wrong that appeals can be recovered even after the inquiry has concluded) but with the glacial pace of appeals (until the anticipated brave new world of Rosewell) which means that no-one ever knows what the policy or housing supply/delivery position is going to be when any decision is finally taken, let alone which minister will be sitting at the relevant desk.

I note that an application by the housebuilder for specific disclosure against the Secretary of State did not need to be determined by the judge in the light of his ruling. No doubt this was for civil servants’ internal recommendations to ministers before those decisions were taken in relation to the appeal, including potentially its recovery in the first place. Now wouldn’t that make interesting reading?

Sainsbury’s, Cambridge Heath Road

Last week we saw another decision by the Secretary of State to dismiss an appeal against the recommendations of his inspector. This was the decision letter dated 10 June 2019 in relation to an appeal by Sainsbury’s following the non-determination by the London Borough of Tower Hamlets of its application for planning permission for “a replacement Sainsbury’s store, an ‘explore learning’ facility, flexible retail/office/community floorspace, 471 residential units arranged in 8 blocks, an energy centre and plant at basement level, 240 ‘retail’ car parking spaces and 40 disabled car parking spaces for use by the proposed residential units, two additional disabled units proposed at Merceron Street, creation of an east-west public realm route from Cambridge Heath Road to Brady Street and public realm provision and enhancements, associated highway works to Brady Street, Merceron Street, Darling Row and Collingwood Street and Cambridge Heath Road“.

Again, an experienced inspector, David Nicholson, had recommended approval in a nuanced report, following a lengthy inquiry. There was one issue where clearly he was not convinced by the proposals, namely the location of the affordable housing within the scheme:

In describing the main entrance to the AH as poor doors, it drew attention not only to the simple design but also to the position of these at the north end of the scheme. Unlike the private units, this would put them at the greatest walking distances from public transport, shops and services. The podium barrier would not only divide the types of tenure, but also separate the amenity and play space areas as well as extend the walking distances (although access to these could be addressed through condition 43). Although more than one witness was questioned on this, no persuasive explanation was given as to why the units were separated in this way.”

The inspector pragmatically recommended that if the Secretary of State were to share these concerns “then he should seek an alternative arrangement through a further s106 Agreement“.

To a very small extent this concern was addressed by the revised s106 Agreement which would include a few shared ownership units on the other side of the proposed barrier. Nevertheless, the location of vast majority of the AH, including all the rented housing, would be both at the far end of the site and altogether rather than integrated, and this counts heavily against the benefits of the AH“.

The Secretary of State in his decision letter appears to agree with almost all of the inspector’s conclusions but the “poor doors” concern appears to be the tipping point:

The Secretary of State has further considered the fact that the social rented housing is positioned at the north end of the scheme, at the greatest walking distance from public transport, shops and services, and that the podium barrier would not only divide the types of tenure, but also separate the amenity and play space areas. He notes the Inspector’s comment that no persuasive explanation was given as to why the units were separated in this way (IR11.33). He agrees with the Inspector that to a very small extent this would be addressed by the inclusion of a few shared ownership units on the other side of the proposed barrier, and has taken into account that condition 43 requires the measures for providing access to be approved. Nonetheless the location of the vast majority of the affordable housing, including all the rented housing, would be both at the far end of the site, and all together rather than integrated (IR11.34).

In assessing the implications of this, the Secretary of State has taken into account that the Framework aims not just to deliver raw housing numbers, but to achieve healthy, inclusive and safe places (paragraph 91). He considers that the separation of the affordable housing, amenity and place space areas is not in keeping with the aims of paragraph 91(a) to achieve inclusive places that promote social interaction, including opportunities for meetings between people who would not otherwise come into contact with each other. The Secretary of State considers that this carries substantial weight against the proposal.

The Secretary of State has considered the Inspector’s comment at IR11.33 that if the Secretary of State shares his concerns, then he should seek an alternative arrangement through a further s.106 agreement. However, the Secretary of State notes that previous concerns about this matter which were addressed by a revised s.106 agreement only resulted in the inclusion of a few shared ownership units on the other side of the proposed barrier (IR11.34). He therefore considers that a seeking more fundamental changes via further revisions to the s.106 agreement is unlikely to be successful. He has also taken into account that other matters also weigh against a grant of permission. Overall he does not consider that a ‘minded to allow’ letter would be an appropriate approach in this case.”

He dismisses the appeal.

Whatever the rights and wrongs of the proposal itself, was it right not to give the appellant a short opportunity to complete a further section 106 agreement so as to address this concern? On the one hand it could have led to an appropriate form of development that would deliver much needed housing. Or it could all have proved too much for the appellant to swallow, or too complicated without scheme changes, in which case at least the opportunity would have been given.

Presumably the scheme will now be reworked, at significant expense and delaying any start on site.

I thought we were in a housing crisis – more, better, faster? And yes of course the developer could have got the scheme “better” to begin with but no doubt with a hit to viability and therefore potentially the amount of affordable housing to be provided – that’s the balance.

But is there really no room for procedural solutions such as this? Or, in the case, of Woburn Sands, de-recovery?

Simon Ricketts, 15 June 2019

Personal views, et cetera

Beauty

How can the planning system seek to achieve “beautiful” buildings and places?

What is beauty? How do you arrive at objectivity in matters largely of subjective judgment? Is the customer always right (and who is the customer)?

These thoughts were prompted this week by a few things:

⁃ The resolution of the Corporation of London’s Planning and Transportation Committee on 2 April 2019 to grant planning permission for the Tulip following officers’ recommendations. The application will now be referred to the Mayor who will need to decide whether to intervene (whether by call in or by directing refusal). His stage 1 report dated 14 January 2019 set out his initial concerns.

Obituaries of Bill Heine, responsible for the Headington shark. Is there any inspector’s decision letter with a better passage than this (when allowing an appeal against an enforcement notice)?

“It is not in dispute that this is a large and prominent feature. That was the intention, but the intention of the appellant and the artist is not an issue as far as planning permission is concerned. The case should be decided on its planning merits, not by resorting to “utilitarianism”, in the sense of the greatest good to the greatest number. And it is necessary to consider the relationship between the shark and its setting…. In this case it is not in dispute that the shark is not in harmony with its surroundings, but then it is not intended to be in harmony with them. The basic facts are there for almost all to see. Into this archetypal urban setting crashes (almost literally) the shark. The contrast is deliberate … and, in this sense, the work is quite specific to its setting. As a “work of art” the sculpture (“Untitled 1986”) would be “read” quite differently in, say, an art gallery or on another site. An incongruous object can become accepted as a landmark after a time, becoming well known, even well loved in the process. Something of this sort seems to have happened, for many people, to the so-called “Oxford shark”. The Council is understandably concerned about precedent here. The first concern is simple: proliferation with sharks (and Heaven knows what else) crashing through roofs all over the City. This fear is exaggerated. In the five years since the shark was erected, no other examples have occurred. Only very recently has there been a proposal for twin baby sharks in the Iffley Road. But any system of control must make some small place for the dynamic, the unexpected, the downright quirky. I therefore recommend that the Headington shark be allowed to remain.”

⁃ a nagging awareness that I probably need to cover the Government’s “Building Better, Building Beautiful” initiative in one of these blog posts.

Section 12 of the July 2018 NPPF sought to give more weight, in plan making and decision taking, to design considerations – see MHCLG’s press release Government’s new planning rulebook to deliver more quality, well-designed homes (24 July 2018) and there is more detailed guidance in the PPG. The press release, as with so many Government announcements, focused on the relevance of the policy changes to the construction of new homes.

Is poor design one reason why new development is often not accepted by communities? That’s the thesis leading to James Brokenshire’s announcement on 3 November 2018 of the Building Better Building Beautiful Commission, chaired by Professor Sir Roger Scruton.

The Commission has three aims:

1. To promote better design and style of homes, villages, towns and high streets, to reflect what communities want, building on the knowledge and tradition of what they know works for their area.

2. To explore how new settlements can be developed with greater community consent.

3. To make the planning system work in support of better design and style, not against it.

The commission has five commissioners:

• Sir Roger Scruton (Chair)

• Gail Mayhew

• Mary Parsons

• Nicholas Boys Smith

• Kim Wilkie

It also has an impressive list of “specialist advisors”:

• Stephen Stone, Executive Chairman of Crest Nicholson

• Sunand Prasad, Senior Partner and co-founder of Penoyre & Prasad and past President of the RIBA

• Ben Bolgar, Senior Director of Prince’s Foundation

• Dame Fiona Reynolds DBE, Master of Emmanuel College, Cambridge

• Adrian Penfold OBE, Advisor in Planning and Public Affairs

• Peter Studdert, Chair of Quality Review Panels for the LLDC and LB of Haringey

• Patrick James, Founding Director of The Landscape Agency

• Paul Monaghan, Director of AHMM and Design Council Trustee

• Yolande Barnes, Professor of Real Estate at UCL

The deadline for the Commission’s call for evidence is 31 May 2019.

This “Building Beautiful” initiative, ironically as with the resi PD rights initiative where there no controls over matters of aesthetics and design, has its roots in think tank the Policy Exchange. The Policy Exchange published Building More, Building Beautiful: How design and style can unlock the housing crisis by Jack Airey, Sir Roger Scruton and Sir Robin Wales, and with a foreword by James Brokenshire, in July 2018. It published a collection of essays on the design, style and economics of the built environment Building Beautiful in January 2019.

Stating the position neutrally, it is right to record that the initiative, and Scruton, have their detractors, such as Robert Bevan in the London Evening Standard – I wouldn’t build my dream home in joyless, moralistic Scrutopia (25 January 2019):

The beauty commission has emerged from a report called Building More, Building Beautiful, by Policy Exchange, a Right-of-centre think tank. One of its three authors was Scruton himself. From its cover onwards — a drawing of Georgian houses that gets the historical details all wrong — it has been many decades since a more ludicrous or ignorant report on architecture was published.”

What on earth is going to come from this process?

The visual appearance of new homes is a curious thing. Largely a private sector product with paying consumers, why are we the public often not satisfied with what the market produces, even when the direct customers appear to be?

I won’t reveal the house builder, but there was a piece this week on the BBC website about a couple who had bought their “dream home” but were dissatisfied with a number of defects in its construction. I looked at the photo below with its wrong proportions, verge/garden, largely blank side flank and clay coloured rendering, and initially wondered how a such an ugly, presumably not cheap, house could be anyone’s dream. But beauty is in the eye of the beholder – it’s a new detached home with garden, and home ownership has been promoted by successive governments as to what we should aspire.

(Photo: BBC)

The aesthetic appearance of a new car is probably the only element of its design or function that is not subject to prescriptive regulation and requirements for testing. But it is plainly critical for car makers to invest in the visual appearance of the product, so as to attract the consumer for whom the car will be an extension of the personality that he or or she wishes to express, emphasising qualities such as speed or ruggedness, elegance or urban quirkiness.

So why is the new housing market apparently so different? Is there a lack of choice such that we’re still at Model T Ford “any style as long as it looks like a child’s drawing of a detached house and garden“? Or is it the case, more likely, that the products that we see are those that have been proven to sell? In which case, aren’t there dangers in trying to funnel house builders towards a different approach?

If different products would make it more likely for permission to be obtained and for homes to be built and sold, why hasn’t this been achieved by operation of the market? What is the overlap with the Letwin “delivery” initiative (see my 3 November 2018 blog post Oliver’s Twist: Letwin’s Proposals For Large Housing Sites)?

It is all very well for the Commission’s first aim to refer to local styles of building but where is the architectural integrity in adopting a particular local building style as pastiche simply to gain community buy-in? Surely beauty simply comes from producing well-proportioned good quality buildings with a form that reflects their function (can we ban fake chimneys?) and with as much attention paid to space and landscape as built form? Do we really need the Scuton Commission or indeed any more prescriptive planning policies? Simply assess schemes against those principles, at outline and reserved matters stages, and make sure that there is no room for post-permission dumbing down. And ensure that there is a properly functioning, competitive house building market. Start with getting the market right, not the detailed design requirements (only local stone here, even though it has to be shipped in from abroad).

After all, whilst planners love to arrive at quasi-objective ways of assessing largely subjective matters (needs must, I suppose) and the tools for doing that are getting ever better (for instance, primarily in an urban context, vu.city and Cityscape Digital), save where particularly justified surely we should restrict the role of the state in telling us what we are going to find beautiful? Heritage decisions based on assessment of architectural quality are difficult. Decisions in relation to NPPF paragraph 79(e) (the green light for proposed isolated homes in the countryside where the design is of “exceptional quality” in that it is “truly outstanding or innovative, reflecting the highest standards in architecture..”) are difficult. It is quite something to appoint a planning committee or inspector as cultural arbiter on our behalf and to expect their decisions not to be underpinned, consciously or unconsciously, by political or social priorities and assumptions.

I still like that shark. Jury out on Tulip.

Simon Ricketts, 6 April 2019

Personal views, et cetera