Category: NPPF

50 Shades Of Grey Belt

Q: How do you eat an elephant?

A: One bite at a time.

So as well with the Government’s proposed reforms to the planning system, announced on 30 and 31 July 2024.

I reckon the whole elephant looks like this:

Gulp.

Maybe even this will be more than you or I can chew but for this blog post I am only going to focus on the proposed changes to green belt policy. Much of the text which follows is by my Town Legal colleagues Susannah Herbert and Aline Hyde to whom much thanks…

Green Belt – Plan Making

Local planning authorities will be required “to undertake a review where an authority cannot meet its identified housing, commercial or other need without altering Green Belt boundaries.” (This is in addition to removing the December 2023 additions which set out the circumstances in which local planning authorities would not be required to undertake a Green Belt review).  The amendment defines “exceptional circumstances” to “include instances where an authority cannot meet its identified need for housing, commercial or other development through other means”.

A sequential test is proposed, to guide changes to Green Belt boundaries through local plans – “This will ask authorities to give first consideration to PDL [previously developed land] within the Green Belt, before moving on to other grey belt sites, and finally to higher performing Green Belt sites where these can be made sustainable. …, land that is safeguarded by existing environmental designations, for example National Parks, National Landscapes and Sites of Special Scientific Interest, will maintain its protections.

18. The aim of this approach is to ensure that low quality Green Belt is identified first, while not restricting development of specific opportunities which could be made more sustainable (for example, on land around train stations). This is in recognition that not all PDL or ‘Grey Belt’ will be in the most suitable or sustainable location for development. As such, it is right that local planning authorities are empowered to make decisions that best support the development needs and sustainability objectives of their area through the plan-making process. There is clear expectation that local planning authorities should seek to meet their development needs in full. However, we remain clear that the release of land should not be supported where doing so would fundamentally undermine the function of the Green Belt across the area of the plan as a whole. We propose changes to paragraph 147 of the NPPF to achieve this approach.”

The proposed wording is as follows:

142 (previously 144) (comparison to Sept 2023) Once established, Green Belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified, through the preparation or updating of plans. Exceptional circumstances include, but are not limited to, instances where an authority cannot meet its identified need for housing, commercial or other development through other means. In these circumstances authorities should review Green Belt boundaries and propose alterations to meet these needs in full, unless the review provides clear evidence that such alterations would fundamentally undermine the function of the Green Belt across the area of the plan as a whole. Strategic policies should establish the need for any changes to Green Belt boundaries, having regard to their intended permanence in the long term, so they can endure beyond the plan period. Where a need for changes to Green Belt boundaries has been established through strategic policies, detailed amendments to those boundaries may be made through non- strategic policies, including neighbourhood plans.

144.(previously 146)  When drawing up or reviewing Green Belt boundaries, the need to promote sustainable patterns of development should be taken into account. Strategic policy- making authorities should consider the consequences for sustainable development of channelling development towards urban areas inside the Green Belt boundary, towards towns and villages inset within the Green Belt or towards locations beyond the outer Green Belt boundary. Where it has been concluded that it is necessary to release Green Belt land for development, plans should give first consideration to previously-developed land in sustainable locations, then consider grey belt land in sustainable locations which is not already previously-developed, and only then consider other sustainable Green Belt locations. They should also set out ways in which the impact of removing land from the Green Belt can be offset through compensatory improvements to the environmental quality and accessibility of remaining Green Belt land.

Grey belt

Grey belt will be defined (in the glossary at Annex 2 to the NPPF) as follows:

“Grey belt: For the purposes of Plan-making and decision-making, grey belt is defined as land in the Green Belt comprising Previously Developed Land and any other parcels and/or areas of Green Belt land that make a limited contribution to the five Green Belt purposes (as defined in para 140 of this Framework) but excluding those areas or assets of particular importance listed in footnote 7 of this Framework (other than land designated as Green Belt).”

The Government is  “interested in whether further support is needed to assist authorities in judging whether land makes a limited contribution to the Green Belt purposes. They propose incorporating the following into the glossary appended to the NPPF:

 Land which makes a limited contribution to the Green Belt purposes will:

  • Not strongly perform against any Green Belt purpose; and
  • Have at least one of the following features:
    i. Land containing substantial built development or which is fully enclosed by built form
    ii. Land which makes no or very little contribution to preventing neighbouring towns from merging into one another
    iii. Land which is dominated by urban land uses, including physical developments
    iv. Land which contributes little to preserving the setting and special character of historic towns    ”

Many local planning authorities will have evidence base documents which assess the effectiveness of parcels of land against the purposes of designating land as Green Belt but these documents do not necessarily observe this draft methodology. The extent to which they will be useful in guiding decision-making, at least in the short term until they can be revisited, is then unclear.

[Comment from me – “limited contribution”: huge room for debate!]

Green Belt Decision Making

The definition of “inappropriate development” is to be significantly restricted. At present in order for development on previously developed land not to be “inappropriate development” (and therefore be subject to the “very special circumstances” test) then (unless it would contribute to meeting an identified affordable housing need) it “must not have a greater impact on the openness of the Green Belt than the existing development”. Draft revised paragraph 151 waters down this test to “would not cause substantial harm to the openness of the Green Belt”.

[Another comment from me – “substantial harm”: huge room for debate, as it is already in the case of proposed development that would contribute to meeting an identified affordable housing need.]

In terms of the Grey Belt concept, the Government proposes to insert a new paragraph in the NPPF which will make clear that, “in instances where a local planning authority cannot demonstrate a 5-year housing land supply or is delivering less than 75% against the Housing Delivery Test, or where there is unmet commercial or other need, development on the Green Belt will not be considered inappropriate when it is on sustainable ‘grey belt’ land, where golden rules for major development are satisfied, and where development would not fundamentally undermine the function of the Green Belt across the area of the plan as a whole.” 

{Comment from me: “unmet commercial or other need“, “fundamentally undermine” – yes you’re there before me.]

This is set out in the new paragraph 152:

“152. In addition to the above, housing, commercial and other development in the Green Belt should not be regarded as inappropriate where:

a. The development would utilise grey belt land in sustainable locations, the contributions set out in paragraph 155 below are provided, and the development would not fundamentally undermine the function of the Green Belt across the area of the plan as a whole; and

b. The local planning authority cannot demonstrate a five year supply of deliverable housing sites (with a buffer, if applicable, as set out in paragraph 76) or where the Housing Delivery Test indicates that the delivery of housing was below 75% of the housing requirement over the previous three years; or there is a demonstrable need for land to be released for development of local, regional or national importance.

c. Development is able to meet the planning policy requirements set out in paragraph 155.”

In terms of development on non-Grey-Belt-Green-Belt, the Government states “Our proposal limits release via this route to grey belt, including PDL — reaffirming our commitment to a plan-led system by maintaining restrictions on the release of wider Green Belt land. It would, as now, be possible for other Green Belt land to be released outside the plan-making process where ‘very special circumstances’ exist, but such cases would remain exceptional.” 

Therefore, in theory, the test of “very special circumstances” for Green Belt development remains unchanged but the existence of Grey Belt and the priority given in policy may make it harder to make the case for development on non-Grey-Belt-Green-Belt (although the emphasis on sustainable locations in the sequential test may also benefit some non-Grey-Belt-Green-Belt locations).

Golden Rules and Viability for Green Belt development

The proposed “Golden Rules” for Green Belt development are set out in a new paragraph 155:

“a. In the case of schemes involving the provision of housing, at least 50% affordable housing [with an appropriate proportion being Social Rent], subject to

viability;

b. Necessary improvements to local or national infrastructure; and

c. The provision of new, or improvements to existing, green spaces that are accessible to the public. Where residential development is involved, the objective should be for new residents to be able to access good quality green spaces within a short walk of their home, whether through onsite provision or through access to offsite spaces.

156. Regarding the provision of green space, development proposals should meet local standards where these exist in local plans, for example local planning policies on access to green space and / or urban greening factors. Where no locally specific  standards exist, development proposals should meet national standards relevant to the development. These include Natural England standards on accessible green space and urban greening factor and Green Flag criteria.”

According to paragraph 155, these will apply “Where major development takes place on land which has been released from the Green Belt through plan preparation or review, or on sites in the Green Belt permitted through development management”.  This refers to major development.  However, paragraph 152 in respect of Grey Belt appears to refer to all potential development on Grey Belt needing to meet these Golden Rules.

The Government considers that “Green Belt land can deliver more affordable housing, infrastructure and environmental contributions, as the value of the land in its existing use is generally low and the Green Belt designation reduces the hope value associated with the prospect of securing planning permission.”  However, it does acknowledge that contributions that can be secured will vary because of varied house prices, abnormal costs, CIL rates or higher existing use values and therefore, they believe that “it is necessary to allow the limited use of viability assessments, where negotiation is genuinely needed for development to come forward, particularly in relation to affordable housing requirements. However, this cannot be an excuse to inflate landowner or developer profits at the expense of the public good”.

Additional guidance on viability considerations for development in the Green Belt is provided in Annex 4.  This is headed “Viability in Relation to Green Belt release”.  It proposes to set a specific benchmark land value.

It also provides that:

“- if land released from Green Belt is transacted above the benchmark land value and cannot deliver policy-compliant development, then planning permission should not be granted, subject to other material considerations;

–  if policy compliant development can be delivered, viability assessment should not be undertaken, irrespective of the price at which land is transacted, and higher levels of affordable housing should not be sought on the grounds of viability;

-Where land is transacted below the benchmark land value but still cannot deliver policy- compliant development, it is up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage. The weight to be given to a viability assessment is a matter for the decision maker, having regard to all the circumstances in the case, including whether the plan and the viability evidence underpinning it is up to date, and any change in site circumstances since the plan was brought into force. Where a viability negotiation to reduce policy delivery has been undertaken, a late-stage review should be conducted to assess whether further contributions are required.”

The consultation notes that there is a spectrum of views of appropriate premia above existing use value ranging between 3 times EUV to 10-40 times EUV.  The Government is “particularly interested in the impact of setting BLV at the lower end of this spectrum.”  

The consultation then immediately goes on to mention the potential for the use of compulsory purchase powers where such land is not brought forward on a voluntary basis.  In this case compensation would be assessed under the statutory no-scheme principle rules set out in Part 2 of the Land Compensation Act 1961 so that any increases or decreases in the value of land caused by the proposed scheme would be ruled out.  The “hope value” for alternative development would reflect the “Golden Rules” set out above.  However, the consultation also states that “Use of compulsory purchase powers may also include use of directions to secure ‘no hope value’ compensation where appropriate and justified in the public interest. A comprehensive justification for a no hope value direction (e.g., which includes a high proportion of vital affordable housing being delivered) will strengthen the argument that a direction is in the public interest. This would align with the Government’s aspiration for high levels of affordable housing to be delivered on these sites.”  

Question 43 asks “Do you have a view on whether the golden rules should apply only to ‘new’ Green Belt release, which occurs following these changes to the NPPF? Are there other transitional arrangements we should consider, including, for example, draft plans at the regulation 19 stage?”.  As drafted, it is not clear when the Golden Rules, or the provisions of Annex 4 will apply.  At present, when land is released from the Green Belt through the plan making system, Green Belt policies no longer apply.  However, the proposed provisions are drafted to apply to “land released from Green Belt” so it will be important to have clear transitional provisions.

The Government’s clear intention expressed through the consultation is that development on Green Belt land is to be held to a higher standard and cannot be permitted without delivering a public benefit in the form of affordable housing, mitigating its own infrastructure impacts, and not undermining the overall strategic function of the designation.

More anon.

Simon Ricketts, 2 August 2024

Personal views, et cetera

Courtesy Vincent van Zalinge via Unsplash

What To Look Out For With This Week’s Promised Draft Revised NPPF

As Zack Simons noted in his LinkedIn post this morning (27 July 2024), there was a detailed story in today’s Times as to what will be in the consultation draft revised NPPF. As Zack summarises:

“-  Tuesday’s the day. 

–   8 week consultation, new NPPF adopted late September. 

–   “Mandatory housing targets” going up by 50%. 

–   That’s a circa 100,000 home national increase to what we now call “local housing need”. Changes include: (i) “toughened” affordability ratios “to take account of how many people might move into an area if housing was cheaper”, and (ii) no use of “previous oversupply of housing to reduce future targets”. 

–   Councils “must review protections for the green belt if they cannot meet their housing need on brownfield land”.”

It’s such a detailed story that depressingly the new Government is obviously continuing the previous Government’s routine practice of trailing imminent significant announcements in the weekend newspapers as unattributed news stories rather than first announcing them in Parliament. Easy spin, easy journalism.

However, the story is totally and deliberately useless as anything that can yet be relied upon.

Here are some of the things I’ll be looking to understand on Tuesday (no surprise it’s Tuesday: that’s when the House of Commons rises for the summer):

  • I assume that the consultation document will be accompanied by a ministerial statement setting out the Government’s policy objectives underlying the document. This is important because, subject to anything specified to the contrary, then the statement and at least the direction of travel demonstrated by the draft is capable of being a material consideration in the determination of planning applications and appeals, with the weight to be given to it a matter for the decision maker. Depending on its potential relevance to current applications and appeals, the decision maker may choose to invite representations as to the implications for the particular application or appeal of what has been published, and, indeed, in some circumstances decisions may be susceptible to legal challenge if such an announcement is “obviously material” and not taken into account. So as much as its content, what will be important will be the tone of the consultation (is the consultation just about detailed wording or is it more open-minded, testing alternative potential approaches?) and of the accompanying statement or statements (particularly, what is said about its immediate intended effect). (And incidentally what we don’t want is for decision-makers to conclude that they need to wait for the final version!)
  • What transitional arrangements, if any, are proposed in relation to emerging and adopted local plans before their policies are to be treated as out of date by virtue of the new policies and targets? After all, we still have a plan-led system.
  • To what extent will the requirement that councils “must review protections for the green belt if they cannot meet their housing need on brownfield land” simply be a peeling back of the December 2023 revision to the NPPF?
  • If local housing targets are going to be increased, does this mean that the consultation process will include (long awaited) proposed revisions to the standard method? If so, how extensive will the changes be? For instance will the 35% uplift remain for England’s 20 largest towns and cities?
  • Is this going to be a “big bang” set of NPPF changes delivering on all that has been previously trailed by Labour, for instance giving some reality to the “grey belt” notion, or (possibly more pragmatically) are we to expect a further set of revisions before long, possibly alongside a proposed initial set of national development management policies and/or alongside guidance to reflect the amended local plans system enabled by the Levelling-up and Regeneration Act?
  • What about anything other than housing?
  • When really will we see the final version? Eight weeks’ consultation takes us to the end of September. To avoid an obvious legal challenge, the Government will need to consider properly the representations received (and there will be many). My bet is that the final version will be October at the earliest (12 October is the 100th day after the election and they will be going very fast to publish by then…). 

Anyone else remember the annual Beaujolais Nouveau races? That used to be how the industry routinely did business development, for better or worse, before we all became amateur journalists. These days its more sober and less fun replacement is the “who can get their NPPF text mark-up up first on LinkedIn” game. But that’s a young person’s sport. I’ll be truffle-hunting instead for the answers to those seven questions. 

Simon Ricketts, 27 July 2024

Personal views, et cetera

Photo by Maja Petric courtesy Unsplash

Not Bad For A First Day At Work

That Rachel Reeves speech today (8 July 2024) is here in full. The key passages in relation to planning reform:

“Nowhere is decisive reform needed more urgently than in the case of our planning system.

Planning reform has become a byword for political timidity in the face of vested interests and a graveyard of economic ambition.

Our antiquated planning system leaves too many important projects getting tied up in years and years of red tape before shovels ever get into the ground.

We promised to put planning reform at the centre of our political argument – and we did.

We said we would grasp the nettle of planning reform – and we are doing so.

Today I can tell you that work is underway.

Over the weekend, I met with the Prime Minister and the Deputy Prime Minister to agree the urgent action needed to fix our planning system.

Today, alongside the Deputy Prime Minister, I am taking immediate action to deliver this [political content removed] government’s mission to kickstart economic growth;

And to take the urgent steps necessary to build the infrastructure that we need, including one and a half million homes over the next five years.

The system needs a new signal. This is that signal.

First, we will reform the National Planning Policy Framework, consulting on a new growth-focused approach to the planning system before the end of the month, including restoring mandatory housing targets.

And, as of today, we are ending the absurd ban on new onshore wind in England. We will also go further and consult on bringing onshore wind back into the Nationally Significant Infrastructure Projects regime, meaning decisions on large developments will be taken nationally not locally.

Second, we will give priority to energy projects in the system to ensure they make swift progress…

… and we will build on the spatial plan for Energy by expanding this to other infrastructure sectors. 

Third, we will create a new taskforce to accelerate stalled housing sites in our country…

…beginning with Liverpool Central Docks, Worcester Parkway, Northstowe and Langley Sutton Coldfield, representing more than 14,000 homes.

Fourth, we will also support local authorities with 300 additional planning officers across the country.

Fifth, if we are to put growth at the centre of our planning system, that means changes not only to the system itself, but to the way that ministers use our powers for direct intervention.

The Deputy Prime Minister has said that when she intervenes in the economic planning system, the benefit of development will be a central consideration and that she will not hesitate to review an application where the potential gain for the regional and national economies warrant it.

… and I welcome her decision to recover two planning appeals already, for data centres in Buckinghamshire and in Hertfordshire.

To facilitate this new approach, the Deputy Prime Minister will also write to local mayors and the Office for Investment to ensure that any investment opportunity with important planning considerations that comes across their desks is brought to her attention and also to mine.

The Deputy Prime Minister will also write to Local Planning Authorities alongside the National Planning Policy Framework consultation, making clear what will now be expected of them…

…including universal coverage of local plans, and reviews of greenbelt boundaries. These will prioritise Brownfield and grey belt land for development to meet housing targets where needed.

And our golden rules will make sure the development this frees up will allow us to deliver thousands of the affordable homes too, including more for social rent.

Sixth, as well as unlocking new housing, we will also reform the planning system to deliver the infrastructure that our country needs.

Together, [political content removed] we will ask the Secretaries of State for Transport and Energy Security and Net Zero to prioritise decisions on infrastructure projects that have been sitting unresolved for far too long.

And finally, we will set out new policy intentions for critical infrastructure in the coming months, ahead of updating relevant National Policy Statements within the year.

I know that there will be opposition to this.

I’m not naïve to that;

And we must acknowledge that trade offs always exist: any development may have environmental consequences, place pressure on services, and rouse voices of local opposition.

But we will not succumb to a status quo which responds to the existence of trade-offs by always saying no, and relegates the national interest below other priorities.”

That reference to “ending the absurd ban on new onshore wind in England” has been given effect by a DLUHC policy statement on onshore wind (8 July 2024), removing – with immediate effect – the additional tests that have applied to on-shore wind as opposed to other energy proposals, namely that the proposal has policy and community support.

Simon Ricketts, 8 July 2024

Personal views, et cetera

Courtesy Nik via Unsplash

Grassroots Music Venues Report/Agent Of Change

Been there, got the t-shirt.

I support grassroots music venues. I’ve blogged a few times in the past about the agent of change principle. And I’ve just read today’s report by the House of Commons Culture, Media and Sport Committee on the steps it recommends to halt the worrying rate at which these venues are closing (two a week and the total number in the country declining last year from 960 to 835), which includes recommendations to strengthen the agent of change principle. Music Venue Trust has played a vital role in drawing attention to the issue.

Previous relevant posts:

As with many public policy issues (housing, the economy, climate change, inequality, health disparities), we in our planning bubble need to remember that when it comes to protecting the conditions for grassroots culture to flourish, whether for its own sake or to grow the next stadium acts, the operation of the planning system is only one part of the problem – but the planning system does need to put its shoulder to the wheel.

The report includes calls for:

  • A comprehensive review by the Government (by summer 2024!) to fully examine the long-term challenges to the live music ecosystem
  • A voluntary levy on large venues by September 2024 and “if a widespread voluntary levy is not in place by September 2024, or if its level does not stem the tide of closures, the Government should introduce a statutory scheme.”
  • Temporary VAT cut and simplification of processes for grant applications, as well as resolution of disputes within the industry on performing rights payments and the like.
  • Placing the “agent of change” principle, which has been in the National Planning Policy Framework since 2018, on a statutory basis.

Briefly on that last point, the agent of change principle forms paragraph 193 of the current NPPF:

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

Paragraphs 90 to 95 of the report consider how the policy is applying in practice. It was recognised that policy represented progress, however concern as to how local planning authorities interpret and apply it. The Committee supported calls for it to be given more teeth by way of being placed on a statutory footing “at the earliest opportunity”.

Everyone of course calls for legislation about everything. I hope that any subsequent Government review examines this specific aspect in more detail: to what extent is the policy not working and in what respects and in what ways would legislation assist without unintended consequences?

Those with long memories may recall that Labour tried to include such a provision into the Housing and Planning Bill back in 2016.

Just reflecting on what we gain from protecting and encouraging these venues (have you been to the relatively new, cosy but fabulous, Lafayette venue in Argent’s Kings Cross development?), it’s not just about nurturing artists – one great quote from the report, courtesy of a participant from Manchester: “Taylor Swift’s lighting director didn’t start out as Taylor Swift’s lighting director”.

These venues can sometimes even be the catalyst for the rebirth of a whole city – I recommend the excellent book Manchester Unspun – How A City Got High On Music by Andy Spinoza for a description of possibly the world’s most extreme version of this (and let’s not currently mention Co-op Live shall we?).

Simon Ricketts, 11 May 2024

Personal views, et cetera

Water Water Everywhere, Nor Any Drop To Drink

“Day after day, day after day,

We stuck, nor breath nor motion;

As idle as a painted ship

Upon a painted ocean.”

(from The Rime of the Ancient Mariner, by Samuel Taylor Coleridge, 1834)

But that’s all I’m going to say about MIPIM. This post is just a toe dip into (1) flood risk and (2) water scarcity.

Water Water Everywhere

Government policy on planning and flood risk is set out in paragraphs 165 to 175 of the current December 2023 version of the NPPF, supplemented by Government’s Planning Practice Guidance on flood risk and coastal change. The Environment Agency is the Government’s statutory planning consultee on flood risk issues.

The proper interpretation of the Government’s policy on flood risk, and in particular on the risk-based sequential approach to locating development which is at the heart of it, was considered in two recent cases. In relation to each of them I am simply going to point to the relevant Town Library summary (to subscribe for free to our weekly case law and other summaries click here ).

R (Substation Action Save East Suffolk Limited) v Secretary of State for Energy Security and Net Zero (Court of Appeal, 17 January 2024)

My colleague Jack Curnow summarised this case here. This was a legal challenge to two development consent orders for the construction of the East Anglia ONE North and East Anglia TWO Offshore Wind Farms together with associated onshore and offshore development. The environmental statement for the project dealt with flooding from surface water stated that the onshore substations and National Grid Infrastructure were located in areas primarily at low risk of surface water flooding, with some permanent infrastructure (parts of access roads) likely to cross areas at both high risk and medium risk of surface water flooding, with appropriate mitigation measures within the design to address any remaining surface water flood risk concerns. The court held that the sequential approach does not apply to the risk of flooding from surface water, as opposed to the risk of fluvial flooding. Whilst the risk of flooding from surface water is to be taken into account when deciding whether to grant development consent, that is a matter of planning judgment for the decision maker.

Mead Realisations Limited v Secretary of State (Holgate J, 12 February 2024)

My colleague Chatura Saravanan summarised this case here. This case dealt with two challenges to inspectors’ decision letters:

a) a decision to dismiss the appeal by Mead Realisations Limited against the refusal by North Somerset Council for a residential development of up to 75 dwellings; and

b) a decision to dismiss the appeal by Redrow Homes Limited against the refusal by Hertsmere Borough Council for a residential development of up to 310 units and other facilities.

The claims were heard together as they raised the common central issue of what is the correct interpretation and application of the flood risk sequential test. Specifically, Mead and Redrow argued that the Inspectors misinterpreted paragraph 162 (now 168) of the NPPF in identifying what might be “reasonably available” sites under the sequential approach, in that they applied the guidance in paragraph 028 of the PPG, which conflicted with paragraph 162 of the NPPF. This raised the question of whether the PPG did indeed conflict with the NPPF and, if so, whether the NPPF should supersede the PPG.

Holgate J held that there was no rule that the PPG could not be inconsistent with the NPPF:

“As a matter of policy, PPG is intended to support the NPPF. Ordinarily, therefore, it is to be expected that the interpretation and application of PPG will be compatible with the NPPF. However, I see no legal justification for the suggestion that the Secretary of State cannot adopt PPG which amends, or is inconsistent with, the NPPF”.

However he held that in any event there was no conflict in any event:

“The PPG performs the legitimate role of elucidating the open-textured policy in the NPPF. The PPG describes “reasonably available sites” as sites “in a suitable location for the type of development with a reasonable prospect that the site is available to be developed at the point in time envisaged for the development.” The PPG provides for issues as to suitability of location, development type, and temporal availability to be assessed by the decision-maker as a matter of judgment in accordance with the principles set out above. In this context, the PPG correctly states that “lower-risk sites” do not need to be owned by the applicant to be considered “reasonably available.” That is consistent with the need for flexibility on all sides.”

For a number of more detailed arguments raised by the claimants (and all rejected), it’s worth reading the case itself or Chatura’s summary.

Nor Any Drop To Drink

Water scarcity is becoming one of those worrying “neutrality” issues which can cut across the more familiar uncertainties of the planning system – see the ongoing issues in Sussex referred to in my 9 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water .

Another area where water scarcity concerns have been raised is of course Cambridge (where Samuel Taylor Coleridge was an undergraduate at Jesus College between 1791 and 1794 – these blog posts aren’t just thrown together). The Secretary of State’s 24 July 2023 long-term plan for housing committed to “transformational change” in Cambridge:

“Proposals will see Cambridge supercharged as Europe’s science capital, addressing constraints that have left the city with some of the most expensive property markets outside London, and companies fighting over extremely limited lab space and commercial property with prices that rival London, Paris and Amsterdam.

These ambitious plans to support Cambridge include a vision for a new quarter of well-designed, sustainable and beautiful neighbourhoods for people to live in, work and study. A quarter with space for cutting-edge laboratories, commercial developments fully adapted to climate change and that is green, with life science facilities encircled by country parkland and woodland accessible to all who live in Cambridge.

Any development of this scale will have substantial infrastructure requirements. The government will deliver as much of the infrastructure and affordable housing as possible using land value capture – with the local area benefiting from the significant increase in land values that can occur when agricultural land is permitted for residential and commercial development. Land values will reflect the substantial contributions required to unlock the development (see annex).

A Cambridge Delivery Group, chaired by Peter Freeman and backed by £5 million, will be established to begin driving forward this project. The Group will work to turn this vision into a reality, taking a lead on identifying the housing, infrastructure, services and green space required. It will also consider options for an appropriate delivery mechanism that will be needed to lead the long-term work on planning, land acquisition and engagement with developers, starting in this Parliament but running through the next few years as development takes shape.”

The Delivery Group was to “take forward immediate action to address barriers such as water scarcity across the city, including:

  • Convening a Water Scarcity Working Group with the Environment Agency, Ofwat, central and local government and innovators across industries to identify and accelerate plans to address water constraints. The Group will include all relevant partners to understand what it would take to accelerate building the proposed new Fens Reservoir and enabling Cambridge to reach its economic potential.
  • Supporting the council in efforts to make sure new developments proposed as part of the local plan can be as sustainable as possible, including whether new houses in planned developments such as Waterbeach and Hartree can be made more water efficient. To support this, the government is announcing today a £3 million funding pot to help support measures to improve the water efficiency of existing homes and commercial property across Cambridge, to help offset demands created by new developments in the local plan.
  • The government will also take definitive action to unblock development where it has stalled, providing £500,000 of funding to assist with planning capacity. Cambridge City Council, Anglian Water, Land Securities PLC and Homes England will work together to accelerate the relocation of water treatment works in Northeast Cambridge (subject to planning permission), unlocking an entire new City quarter – delivering approaching 6,000 sustainable well-designed homes in thriving neighbourhoods – as well as schools, parks and over 1 million square feet of much needed commercial life science research space.”

On 6 March 2024 DLUHC published The case for Cambridge :

“Our first priority is water scarcity, which is holding back development and risks causing environmental harm. It is vital that the city has the water supply it needs to support long-term growth, including a new reservoir in the Fens and a new pipeline to transfer water from nearby Grafham Water. We are also making a one-off intervention to support growth in the shorter-term by delivering water savings through improved water efficiency of appliances in existing buildings that can offset new homes and commercial space.

The government will:

  • Deliver a unique offsetting intervention to save water now through improving efficiency and support sustainable growth – set out in detail in a paper published alongside this document.
  • Issue a joint statement from the Environment Agency, Greater Cambridge Shared Planning, DLUHC and Defra, outlining our commitment to sustainable growth and development on the basis of our water credits scheme.
  • Appoint Dr Paul Leinster to chair the Water Scarcity Group to advise the government on future water resource options, including the reservoir in the Fens and the Grafham Water pipeline.”

Alongside the case for Cambridge document, a joint statement between DLUHC, Defra, the Environment Agency and Greater Cambridge councils (Cambridge City and South Cambridgeshire districts) on measures to address water scarcity issues in the area was published on the same day, setting out its proposed scheme to develop, and help to fund, a water credits market “intended to provide greater certainty through:

a. The delivery of water savings measures in the Cambridge Water operating area, supported by the government’s spending.

b. A robust water credit system being in place to assure those water savings and issue credit certificates to developers and housebuilders.

c. Application of enforceable planning mechanisms so that planning permissions are linked to water savings measures in a robust way.”

The focus is of course welcome but water scarcity is increasingly going to be a challenge facing us in many parts of the country– see for instance this 4 September 2023 FT article The UK is at risk of running low on water. Why?   (although the answer to the question in the heading to the article may lie in its sub-heading: “A country famous for its rainy climate faces grave supply issues, after years of poorly managed systems”…)

NB Did you know that 15 out of the 22 albatross species remain threatened with extinction? How stupid are we as a species – and how ignorant of the message of that poem?

Simon Ricketts, 16 March 2024

Personal views, et cetera

M&S Mess 2: “The SoS Appears To Have Become Thoroughly Confused On This Point”

Quite a week. I was going to write about the London Mayor’s Large-scale Purpose-built Shared Living London Plan Guidance (29 February 2024) – less prescriptive in relation to co-living than his initial draft as a result of constructive engagement with the industry, well received and good to see – or indeed the Competition and Markets Authority’s final report into housebuilding in England, Scotland and Wales (26 February 2024) – the best analysis of the house building and land promotion industry and indeed opportunities to reform the planning system that I have read. But all that will need to wait because one case has dominated the chat in the last day or so:

Marks & Spencer plc v Secretary of State (Lieven J, 1 March 2024)

This was of course the legal challenge by M&S to the Secretary of State’s refusal of the retailer’s application, which he had called in, for planning permission for the construction of a nine storey new mixed office and retail store to replace its existing store at the western end of Oxford Street.

As to the various stages in the decision making process which led to the Secretary of State’s decision, together with an initial critique at the time of that decision (as well as the statement at the time from the M&S chief executive who had described Mr Gove’s decision as taken “on the whim of one man” and “utterly pathetic”) see my 21 July 2023 blog post, M&S Mess.

Russell Harris KC and Heather Sargent acted for M&S on the legal challenge, together with Dentons. Well done all for the outcome. For the pithiest and precise summary of the outcome you cannot beat Heather’s LinkedIn post yesterday:

“Lieven J has held that:

– The Secretary of State’s statement that “there should generally be a strong presumption in favour of repurposing and reusing buildings, as reflected in paragraph 152 of the [2021 NPPF]” was a misinterpretation of the NPPF and an error of law;

– The Secretary of State unlawfully failed to explain why he disagreed with his Inspector’s conclusions that there was no viable and deliverable alternative to the redevelopment scheme proposed by M&S;  

– The Secretary of State unlawfully failed “to grapple with the implications of refusal and the loss of the benefits and thus departure from important Development Plan policies”;

– The Secretary of State unlawfully failed to provide adequate reasons for concluding (again in disagreement with his Inspector) that the harm to the vitality and viability of Oxford Street if M&S’s scheme (or an alternative) were not delivered would be “limited”; and

– The Secretary of State’s decision was also vitiated both by a factual error (namely, an erroneous understanding that there was no dispute that the proposed scheme would involve much greater embodied carbon than refurbishment) and by a misinterpretation of development plan policy on carbon. The judgment confirms that it is “clear beyond any rational doubt … that the offsetting requirements in [London Plan policy] SI 2C are in relation to operational carbon, and not embodied carbon”.

For the best explainer, a vivid and fascinating piece of prose as ever, you have to read Zack Simons’ 2 March 2024 blog post This is not just *any* judgment: M&S in the High Court.  

My (possibly unfairly) selective quote in the title to this blog post is from paragraph 116 of Lieven J’s judgment where she reports his apparent misunderstanding that the London Plan’s requirement for carbon off-setting applies to embodied carbon rather than just operational carbon (ground 5). She goes on to conclude:

“120 It would be astonishing if one of the key policies in the London Plan on carbon emissions could have suddenly expanded the scope of the off-setting requirements in such a significant way without anyone applying it in this way before. The approach of the SoS appears to believe that there is a “net zero” requirement of, or at least aspiration for, construction impacts, in a key Development Plan policy which has never previously been applied.

121 It is important to make clear that this case is not about whether or not it would be appropriate or justified to have such a policy in the light of the climate emergency. Such a judgement is not the function of the court. The issue for the court is whether the SoS erred in law by misinterpreting the adopted London Plan policy.”

The only further comment I would add at this point is that this saga is not yet at an end. The effect of the judgment is that (absent any application by the Government Legal Department to the Court of Appeal for permission to appeal)  the application goes back to the Secretary of State to be redetermined. No doubt the parties will need to be given the opportunity to make further representations. It will take months. Indeed, who will be the Secretary of State by then?

Paragraph 152 of the previous version of the NPPF, on which ground 1 turned, survives unchanged as paragraph 157 of the latest version of the NPPF but will any relevant policy changes be made before the final outcome of the redetermination process? We know from the Government’s December 2023 Future Homes and Buildings Standards consultation:

“ Embodied carbon, the carbon emissions generated from the production and transportation of building materials, construction process and maintenance of a building – is beyond the scope of this consultation and the existing Building Regulations. We recognise, however, that embodied carbon is a significant contributor to the whole life carbon of a building and that it is therefore crucial that we take steps to address it. The government intends to consult on our approach to measuring and reducing embodied carbon in new buildings in due course” (paragraph 1.1.4)

At a local level,  and as an example of how life constantly edges on, Westminster City Council also adopted on 28 February 2024 (I said it was a busy week)  its new Planning Obligations and Affordable Housing SPD, which is intended to become a material consideration in decision making from 7 March 2024, with, amongst other things, a swingeing increase in carbon off-set payments (see brief Westminster Property Association explainer here).

The Secretary of State’s call-in of this application in June 2022 will so far have caused (assuming, which is not in the bag yet, that planning permission is eventually granted) at least two years’ delay, vast expense and delay for M&S as well as opportunity cost for the most important traditional shopping street in the nation’s capital (for which there is no financial recompense for M&S or for London). There really should be a higher threshold for call-in by the Secretary of State (whatever his or her political persuasion) of decisions which are referable to the Mayor of London (whatever his or her political persuasion). And the “behind the scenes” weighing of planning considerations/political advantage which leads to decisions such as this and that in relation to the Television Centre (see my 9 February 2024 blog post, The Weighting Game) is unfathomable (a word which I was relieved to see I used in my M&S Mess post last year about the Secretary of State’s reasoning on some aspects in his M&S decision).

Finally on this subject, whether as a thumbs up to that M&S legal team, or as a general thank you tip for us planning law bloggers, or as a gesture of support to Russell Harris and most importantly the young people’s charities he is supporting by way of this mad thing, please do sponsor Russell’s Cycle to MIPIM 2024 . He and the rest of them will no doubt shortly setting out and would appreciate any support. When I last looked, he was about £1,500 short of his £11,000 target. As another retailer might say, every little helps.

Simon Ricketts, 2 March 2024

Personal views, et cetera

Extract from photograph by Victor via Unsplash

The RUBR Hits The Road: Residential Urban Brownfield Regeneration

“Building homes on brownfield land will be turbocharged under a major shake-up to planning rules to boost housebuilding while protecting the Green Belt. “

For a concise summary of today’s DLUHC announcements and all the links, see my Town Legal colleague Susie Herbert’s post.

I have seen some understandable cynicism about the proposed changes – along the lines of “it’s motivated by the politics” (obviously in part yes); and/or “it’s in dribs and drabs, why couldn’t this have been done as part of the December 2023 NPPF changes?” (well yes, although maybe better late than never?); and/or ”none of it will make a difference” (I’ll declare an interest having assisted British Land and Land Sec in a small way last year with their report More Growth, More Homes, More Jobs: how to reform the planning system to unlock urban regeneration – but I would have said this anyway – I think the announced changes could well make a difference – and in fact there are plenty more within that report that are worthy of consideration!).

There is of course already existing policy encouragement (albeit rather general) in paragraph 124 (c) of the NPPF, which states that planning policies and decisions should “give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs.”

The Government proposes to strengthen that message with the following additional wording within paragraph 129 (c):

“local planning authorities should refuse applications which they consider fail to make efficient use of land, taking into account the policies in this Framework, especially where this involves land which is previously developed. In this context, when considering applications for housing, authorities should give significant weight to the benefits of delivering as many homes as possible and take a flexible approach in applying planning policies or guidance relating to daylight and sunlight and  internal layouts of development, where they would otherwise inhibit making the most efficient use of a site (as long as the resulting scheme would provide acceptable living standards).” [new passages underlined]

I do think this does move the dial further with those references to “delivering as many homes as possible” and (particularly in London) the “flexible approach in applying planning policies or guidance relating to …  internal layouts of development”.

The dial will then move into full “tilted balance” paragraph 11 (d) territory for those boroughs in London and those other 19 towns and cities subject to the urban uplift, where their Housing Delivery Test results (to be published in May) indicate that their delivery of housing was below 95% of the housing requirement over the previous 3 years.

For an indication of the potential outturn of those results see Ross Raftery’s excellent Lichfields blog post today, Testing times for England’s big cities – an extended reach for the presumption and other NPPF changes.

This strengthening of the tests is likely to make a difference (even during this consultation period): it will influence the way that planning committees are advised when they come to make decisions; it will focus a broader spread of authorities on the potential consequences of not meeting delivery targets (admittedly not fully within their control, but certainly partly), and it will certainly influence how inspectors and the Secretary of State approach appeals and call-ins.

In London there is also much good analysis in the excellent report prepared by Christopher Katkowski KC and his panel. From the executive summary:

“6 The consequences of housing under-delivery have significant economic, societal and personal impacts, not least on those who face no alternative option but homelessness (living in temporary accommodation), or who are forced into poor-quality rental accommodation.

7 Public and private sector stakeholders are clear in their view that the London Plan is not the sole source of the problem: wider macro-economic conditions; fire safety; infrastructure constraints; statutory consultees; viability difficulties; and planning resourcing pressures have all contributed.

8 However, there is persuasive evidence that the combined effect of the multiplicity of policies in the London Plan now works to frustrate rather than facilitate the delivery of new homes, not least in creating very real challenges to the viability of schemes. We heard that policy goals in the Plan are being incorrectly applied mechanistically as absolute requirements: as ‘musts’ rather than ‘shoulds’. There is so much to navigate and negotiate that wending one’s way through the application process is expensive and time-consuming, particularly for SMEs who deliver the majority of London’s homes.

9 This position is exacerbated by the change in context since the London Plan was formulated. The London Plan’s ‘Good Growth’ policies were advanced on the basis of public and private sector investment assumptions that were described in 2019 as being “ambitious but realistic” by the London Plan Inspectors. But planning and housing delivery indicators suggest this strategy has not been sufficiently resilient to the subsequent change in circumstances. Housing schemes (and decision makers on applications) have struggled to reconcile the multiple policy exhortations, which create uncertainty and delay in the preparation, submission and determination of planning applications.”

Many will also welcome the Secretary of State including within his consultation paper the question as to whether the threshold for referral of applications to the Mayor should be raised:

“As part of the large scale development theme, a threshold for large scale residential development was first set in the previous regulations in 2000 as development providing more than 500 houses, flats, or houses and flats or residential development on more than 10 hectares. In 2008, this threshold was reduced to 150 houses, flats or houses and flats.

Through engagement, the government is aware that in some instances this threshold is considered to be too low, requiring what may amount to duplicative interactions by developers with the relevant London Borough and with the Greater London Authority which is not always considered proportionate to the nature of the development in question.

The government wants to make sure that this threshold is set at the right level, in order that it adds value to the process of determining applications for potential strategic importance (especially for residential development), and does not inadvertently slow down or disincentivise developments that could be appropriately determined by the London Borough.”

In conclusion, will building homes on brownfield land be “turbocharged under a major shake-up to planning rules”? It’s more a ratcheting-up of policy than a “major shake-up to planning rules” (thankfully). And whilst I refuse to engage with that ridiculous, very Boris Johnson, word “turbocharged” and whilst this is a very late initiative for a Government that is fast running out of road, let’s hope there is at least some acceleration as a result.

Simon Ricketts, 13 February 2024

Personal views, et cetera

In DLUHC Jubilo: NPPF & Much More

God bless planners who have been waiting for this day all year. I hope you participated in the nppfestivities although to my mind the NPPF itself was the least interesting of what was published today (19 December 2023).

This is today’s publication list as it stands at 6 pm (ten items):

  1. The new National Planning Policy Framework and
  2. the Government’s response to consultation on reforms to national planning policy.

I’ve been reading the latest version of the NPPF as against the previous September 2023 version and against the amendments consulted on in December 2022. This is just a first quick take. I’ve just read the lines so far. The interesting bit is of course going back and reading between them. (A Landmark Chambers/Town Legal seminar is planned for 15 January 2024 with exactly this in mind – details here).

As compared to the December 2022 consultation (see my 22 December 2022 blog post) the changes are relatively limited, the main substantive ones being (in broad summary):

  • No further restrictions after all as to when the paragraph 11 tilted balance applies (although for an authority whose plan has reached at least regulation 18 stage the requirement to show five years’ worth supply of housing supply drops to four years). The consultation paper had suggested exclusions where meeting need in full “would mean building at densities significantly out of character with the existing area” and where there is “clear evidence of past over-delivery”.
  • The changes consulted upon to the “soundness” test for local plans, particularly the deletion of the “justified” requirement, are not being taken forward.
  • Whilst as per the consultation draft, the outcome of the standard method for assessing housing requirements for an area is expressed as an “advisory starting point”, the exceptional circumstances for departure make it clear that “the particular characteristics of an area” is in fact the “particular demographic characteristics of an area”.
  • References have been added, supportive of “community-led development”.

The “area character” point has instead been picked up in a new paragraph 130 which advises that “significant uplifts in the average density of residential development may be inappropriate if the resulting built form would be wholly out of character with the existing area. Such circumstances should be evidenced through an authority-wide design code which is adopted or will be adopted as part of the development plan.”

Substantively as per the consultation document, there is “no requirement for Green Belt boundaries to be reviewed or changed when plans are being prepared or updated”. How can this possibly work in Green Belt authorities with high levels of unmet housing need?

As per the consultation document there are plenty of exhortations as to beauty.

3. Consequential changes to the advice in the Government’s Planning Practice Guidance about the Green Belt and about traveller sites .

4. The Secretary of State’s Falling Back In Love With The Future speech at the RIBA.

5. The Secretary of State’s written ministerial statement to the House of Commons: The Next Stage in Our Long Term Plan for Housing Update.

Much of the statement simply summarises the other documents covered in this blog post but the section on Cambridge is worth setting out in full:

“Cambridge

Finally, I want to provide an update on the Government’s vision for Cambridge 2040. In July, I outlined plans for a new urban quarter – one adjacent to the existing city – with beautiful Neo-classical buildings, rich parkland, concert halls and museums providing homes for thousands. This would be accompanied by further, ambitious, development around and in the city to liberate its potential with tens of thousands of new homes.

In the intervening months, Peter Freeman, the Chair of the Cambridge Delivery Group, has been developing our vision for the city, in collaboration with a whole host of local leaders and representatives. I am clear that delivering our vision means laying the groundwork for the long-term, and that starts now.

We plan to establish a new development corporation for Cambridge, which we will arm with the right leadership and full range of powers necessary to marshal this huge project over the next two decades, regardless of the shifting sands of Westminster.

We recognise the scale of development we are talking about will require support from across the public and private sectors, to realise our level of ambition.

And we must also ensure we have an approach towards water that reflects the nature of Cambridge’s geography. So today I am also announcing that we will review building regulations in Spring next year to allow local planning authorities to introduce tighter water efficiency standards in new homes. In the meantime, in areas of serious water stress, where water scarcity is inhibiting the adoption of Local Plans or the granting of planning permission for homes, I encourage local planning authorities to work with the Environment Agency and delivery partners to agree standards tighter than the 110 litres per day that is set out in current guidance.”

6. Housebuilding in London: Letter from the Secretary of State for Levelling Up, Housing and Communities – the highlights:

“We agree that housing delivery in London is far below the levels needed. Not only is delivery considerably short of your own London Plan target by approximately 15,000 homes per year, it was approximately 63,500 homes lower than actual need last year, as calculated by the standard method. This is not a national issue. London was the worst performing region in the Housing Delivery Test 2022. Fewer than half of the London Boroughs and Development Corporations delivered more than 95% of their appropriate housing requirement for the test over the three-year monitoring period. Areas like the West Midlands are overdelivering, while London continues to fall short.

This has a significant effect on the availability of homes for those wanting to live and work in the capital, as well as for the standard of housing available. London’s average house prices remain the most expensive in the UK – an average of £537,000 in September 2023. The average price was over 12.5 times average earnings last year. London has the lowest level of home ownership in England. Our capital also has, as you know, the highest proportion of renters. There are 60,040 homeless households in temporary accommodation, including over 80,000 children.

Under your leadership the GLA is failing to provide affordable homes for those that need them most.

While I welcome the commitments you made in your letter, as well as the ideas you have provided for Government to consider, they are not enough to change this woeful picture. In July, I asked my officials to review housing delivery in London to gain a greater understanding of the reasons for this significant under-delivery. We met stakeholders, including planning authorities, developers, and boroughs to identify the challenges they encounter in delivering housing. In the course of those discussions, a number of issues were raised which stakeholders believe are adversely affecting housing delivery in London.

Due to the significant shortfall in housing supply and under delivery of housing in our capital, I have concluded that it may be necessary to take further action now, as a matter of urgency, to make sure London is delivering the homes our capital needs.

With this in mind, I have asked Christopher Katkowski KC to lead a panel of expert advisers comprising Cllr James Jamieson, Paul Monaghan, and Dr Wei Yang, to consider the aspects of your London Plan which could be preventing thousands of homes being brought forward, with a particular focus on brownfield sites in the heart of our capital. I have asked them to produce their report by January and will make sure that it is shared with you.

If you cannot do what is needed to deliver the homes that London needs, I will.”

7. Housing Delivery Test: 2022 measurement

8. Local Plan intervention: Secretary of State’s letters to 7 local authorities  directing them to revise their local plan timetables – Amber Valley. Ashfield, Basildon, Castle Point, Medway, St Albans and Uttlesford.

9. Direction preventing West Berkshire Council from withdrawing its emerging local plan at a meeting tonight.

10. Freeports delivery roadmap.

A busy day in Marsham Street…

Simon Ricketts, 19 December 2023

Personal views, et cetera

PS This my 400th post. I’ll get the hang of it soon, I promise.

2023 Unwrapped (Or The Case Of The DLUHC That Didn’t Bark?)

A pause to reflect as we wait for the latest version of the NPPF finally to be published, possibly in the coming week.

My final post of 2022, It Will Soon Be Christmas & We Really Don’t Have To Rush To Conclusions On This New NPPF Consultation Draft covered the publication on 22 December 2022 of the consultation draft. Back then the final version was to be published in Spring 2023. Never trust a DLUHC time estimate…

That timescale assumed that the Levelling-up and Regeneration Bill would receive Royal Assent that Spring. Ho ho ho. The Act finally received Royal Assent on 26 October 2023, although, as set out in my 4 November 2023 blog post Act Up!, nothing substantive has yet come into force, most elements requiring secondary legislation with only limited sections being switched on from Boxing Day. (My firm has prepared a detailed summary of the planning reform aspects of the Act, running to some 41 pages. Do message or email me if you would like a copy.)

Judging from the tone of DLUHC’s 28 November 2023 response to the Levelling Up, Housing and Communities Committee’s reforms to national planning policy report, together with Mr Gove’s appearance before the Levelling Up, Housing and Communities Committee on 6 December 2023, we assume that the final version of the NPPF will reflect quite closely the December 2022 draft, but time will tell.

Of course, barring a general election in the meantime, in 2024 we will then have consultation on further proposed revisions to the NPPF, to reflect LURA’s proposed reforms to plan-making, and consultation on much else besides.

In the meantime, 2023 has seen yet more ministerial changes with Rachel Maclean sacked in favour of an expanded role for Lee Rowley. There have been at best sporadic attempts to discourage local authorities from withdrawing emerging plans (Spelthorne and Erewash). There has been a self-styled long-term plan for housing. There have been sporadic culture wars – for example the swipe at South Cambridgeshire District Council for its four-day working week trial (anyone remember localism? I have an old book to flog).

But has anything really moved the dial in terms of encouraging housebuilding or indeed encouraging economic activity? Far from it if yesterday’s Planning Resource headline is anything to go by: Number of planning applications plummets 12% year-on-year in latest quarterly government figures (8 December 2023, behind paywall)

Spotify-style, I looked back at which simonicity posts were most widely read, last year. Perhaps this list tells its own story – one of procedural hurdles, unnecessary complexity and political climbdowns. In order:

  1. M&S Mess (21 July 2023). We wait to see what the High Court makes of Mr Gove’s 20 July 2023 decision letter.
  1. Thank You Mikael Armstrong: New Case On Scope Of Section 73 (28 January 2023). The Armstrong case has now been supplemented by R (Fiske) v Test Valley Borough Council (Morris J, 6 September 2023). The scope of section 73 remains a live issue, although the legal boundaries are now pretty clear ahead of the coming into force of section 73B which will raise new questions.
  1. The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment (29 August 2023). The subsequent defeat suffered by the Government on this in the House of Lords was possibly DLUHC’s most embarrassing moment of the year, when taken with the subsequent, aborted, attempt by the Government to introduce a fresh Bill.
  1. New Draft London Guidance On Affordable Housing/Viability (6 May 2023). These are critical issues, particularly in London, and we need to understand as clearly as possible the Mayor’s position. But the GLA draft guidance continues to grow like topsy. Since that post in May we have also had draft guidance on purpose-built student accommodation and on digital connectivity – and in the last week we have had draft industrial land and uses guidance.
  1. Euston We Have A Problem (8 July 2023). Subsequent to the post there was then of course the Government’s total  abandonment of proposals for HS2 north of Birmingham (see my 4 October 2023 blog post, Drive Time) and wishful thinking as to a privately funded terminus for HS2 at Euston. It will be interesting to see what happens this coming year to the idea of a new “Euston Quarter” Development Corporation.

Incidentally, thank you everyone for continuing to read this blog, now in its eighth year (with more daily views than ever before), and for occasionally saying nice things about it. Believe me, I would otherwise have given up a long time ago. I did hope that I could pass it over to chatGPT next year but from early experimentation I suspect not:

Simon Ricketts, 9 December 2023

Personal views, et cetera

Alluring Temptress

It’s obvious now why the Levelling Up and Regeneration Bill was named as it was. Having now received Royal Assent on 26 October 2023 it is formally the Levelling Up and Regeneration Act 2023, or Lura to its friends. 

I consulted the oracle which is The Bump website:

“Origin: German

Meaning: Alluring temptress

Lura is a feminine name of German origin that means “alluring temptress.” A variation of the traditional name Lorelei, Lura is a modern alternative with the same fascinating history and connotations. In legends, Lorelei was the name of a maiden who would lure fishermen to their deaths by singing her haunting song. Today, Lorelai is the name of a rock face along the Rhine River in Germany. With connotations of otherworldly beauty and natural wonder, Lura is an excellent option for your little one.”

Very clever Mr Gove, very clever. 

(Although there is also the LURA, which is the Leeds University Rocketry Association. And there is a Portuguese singer, Lura.  Planning law is going to get even more confusing).

As is usual, it will take a bit of time for the Act to be printed. In the meantime you either have to trawl through the various sets of amendments on the Parliament website, take your chances with the Government’s press statement or (more usefully) delve into the various summaries already on social media. I would recommend for instance:

  • Lichfields’ summary of the planning-related sections
  • Nicola Gooch’s 26 October 2023 blog post 

I also very much recommend, as a wider update, the latest Planning Law (With Chickens) podcast episode, recorded that day by my Town colleagues, Victoria McKeegan and Nikita Sellers. The chat covers Lura but also much else of what has been happening in our world over the last few months. 

Because it isn’t all about the Act, the operation of which is dependent on much further secondary legislation to come. The Act will only change the system’s hardware. A software update, in the form of an updated version of the NPPF following the December 2022 consultation draft, is expected any day now. 

In the meantime, Michael Gove’s letter to local planning authorities  dated 8 September 2023 is worth a read if you haven’t seen it. I’m not sure it was initially online. For instance:

“First and foremost, this Government is unashamedly supportive of development and regeneration in and around existing town and city centres. This is how we will get homes built where it makes sense, support growth, and enable people to get on the property ladder.

 And making it easier to progress such developments is front of mind as we finalise the update to the National Planning Policy Framework (NPPF), following our consultation which attracted more than 26,000 responses. In that context, and ahead of the publication of the refreshed NPPF in the autumn, I wanted to make clear my expectation that:

• development should proceed on sites that are adopted in a local plan with full input from the local community unless there are strong reasons why it cannot;

  • councils should be open and pragmatic in agreeing changes to developments where conditions mean that the original plan may no longer be viable, rather than losing the development wholesale or seeing development mothballed; and

 • better use should be made of small pockets of brownfield land by being more permissive, so more homes can be built more quickly, where and how it makes sense, giving more confidence and certainty to SME builders.”

[That viability statement is particularly topical]. 

“My intention is for the regulations, policy and guidance necessary for the preparation of the first new-style local plans to be in place by Autumn 2024. In the new system, planning authorities will need to prepare, consult on and adopt plans within a 30-month timeframe – and follow the same process for each subsequent update of their plans, including examination by PINS.

In the interim, we want local authorities to continue adopting ambitious local plans, which is why we set out fair transitional arrangements in our current consultation on implementing the plan-making reforms. As part of these arrangements, we confirmed our intent that the last day to submit a plan under the current system will be 30 June 2025. I want to reiterate that local authorities without an up-to-date local plan are likely to be subject to the presumption in favour of sustainable development when facing applications.”

30 months.. There’s that haunting song again. 

Simon Ricketts, 28 October 2023

Personal views, et cetera

Lorelei by William Turner