The Levelling-up and Regeneration Bill resumed its progress through Report stage in the House of Lords this week, with sessions on 4 and 6 September. This post seeks to identify the main amendments made in those sessions.
I know what you’re all asking – what about the Government’s late proposed amendment to address the nutrient neutrality issue (see my 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment)? That will be debated at a further session next week, on 13 September 2023. The proposed amendment was in the meantime the subject of an urgent question tabled in the House of Commons by the Green Party’s Caroline Lucas on 5 September 2023. The debate is interesting as a hint of what awaits both in the Lords on 13 September but then once the Bill returns to the Commons for its final stages:
The Speaker agreed that the urgent question was appropriate notwithstanding the Secretary’s written ministerial statement the previous day: “I expect Ministers to come to the House, as I did not think a written ministerial statement was the way to inform the House.”
On being challenged that the amendment amounted to a regression from current standards of environmental protection, the minister, Rachel Mclean responded: “It is important to consider what we are talking about here, which is unblocking 100,000 homes that add very little in terms of pollution. To be clear, our approach means that there will be no overall loss in environmental outcomes. Not only do the measures that we are taking address the very small amount of nutrient run-off from new housing, but at the same time, we are investing in the improvement of environmental outcomes. We do not agree that this is regression on environmental standards. We are taking direct action to continue to protect the environment and ensure that housing can be brought forward in areas where people need it.”
A nuanced question from shadow minister Matthew Pennycook:
“As a result of the Government’s failure over many years to make decisive progress in tackling the main sources of problem nutrients, namely farming and waste water treatment works, the requirements for nutrient neutrality in sensitive river catchments present a challenge to securing planning permission for new housing development. It is therefore right in Labour’s view that the operation of the rules around nutrient neutrality is reviewed with a view to addressing problematic delays and increasing the pace at which homes can be delivered in these areas.
However, we have serious concerns about the approach that the Government have decided on. Not only does it involve disapplying the Conservation of Habitats and Species Regulations 2017, but it does not legally secure the additional funding pledges to deliver nutrient management programmes and does not provide for a legal mechanism to ensure that housing developers contribute towards mitigation.
I put the following questions to the Minister: what advice did the Government receive from Natural England about potential reform of the laws around nutrient neutrality? Did it offer a view on the Government’s proposed approach? Given the amount of mitigation currently available in the pipeline, which is estimated at allowing for approximately 72,000 homes, did the Government consider an approach based on the habitat regulations assessment derogation and a revised credit mitigation system to front-load permissions and provide for future compensatory schemes? If so, why did they dismiss that option? What assessment have the Government made of the impact of their proposed approach on the nascent market in mitigation credits, and investor confidence in nature markets more generally? Why on earth do Ministers believe developers will voluntarily contribute to mitigation under the proposed approach?
Finally, the Government claim their approach will see 100,000 planning permissions expedited between now and 2030. Given that house building activity is falling sharply and the pipeline for future development is being squeezed—not least as a result of housing and planning policy decisions made by this Conservative Government—what assessment has the Department made of the number of permissions that its disruptive approach will unlock within the first 12 months of its operation?”
A rather pithy summation of the position, from the chair of the Levelling Up, Housing and Communities Committee, Clive Betts:
“This is hardly a new problem, is it? The Court decision was in 2018, yet last year we had the levelling-up Bill, which was really a planning Bill with a bit of levelling up added on—no mention of the issue there. In December we had major consultations on changes to the national planning policy framework—no mention of the issue there. The Committee wrote to the Minister and asked how many more consultations on planning issues there would be this year. We were given nine of them—no mention of the issue there. If it is such a serious issue, why has it taken the Government so long to act? It looks like the Government are making it up as they go along. This is a panicked response from the Government to the collapsing numbers of housing starts which the Minister simply wants to do something—anything—about.“
Turning now to the Report sessions on 4 and 6 September 2023 , I set out below the main amendments agreed upon (subject to them surviving the return of the Bill to the Commons). The full list of amendments is much longer and for the detail you can click on the following:
[Many thanks to my Town Legal colleague Amy Penrose for detailed work on all this].
Amendment 184A
This amendment clarifies that inserted subsection (5B) in section 38 of the Planning and Compulsory Purchase Act 2004 requires a determination under the planning Acts to be made in accordance with the development plan and any national development management policies, taken together.
So the replacement to section 38 (6) would now read: “the determination must be made in accordance with the development plan and any national development management policies taken together, unless material considerations strongly indicate otherwise”. What does “taken together“ add? Perhaps to avoid an interpretation that the determination needed to be both in accordance with the development plan and in accordance with any national development management policies – instead look at it all together in applying planning judgment as to whether the determination is in accordance? It’s great being a lawyer.
Amendment 190 (tabled by Baroness Thornhill) – voted through against the Government 186 – 180
The amendment requires the Secretary of State to carry out a sustainability appraisal before designating a national development management policy; it must comply with public consultation requirements and a process of parliamentary scrutiny based on processes set out in the Planning Act 2008 (as amended) for designating National Policy Statements, and it must contain explanations of the reasons for the policy, including an explanation of how the policy set out takes account of Government policy relating to the mitigation of, and adaptation to, climate change.
Amendment 191 (tabled by Lord Ravensdale) – voted through against the Government 182 – 172
The amendment places a duty on the Secretary of State and relevant planning authorities respectively to have special regard to the mitigation of, and adaptation to, climate change with respect to national policy, local plan-making and planning decisions.
Amendment 191A (tabled by Lord Crisp) – voted through against the Government 158 – 149
The amendment specifically places a duty on the Secretary of State to promote healthy homes and neighbourhoods – a huge success for the Town and Country Planning Association’s Campaign for Healthy Homes.
(see also a detailed Schedule to be inserted into the Bill setting out for instance what is meant by healthy homes principles – amendment 191B).
Amendment 193A (tabled by Lord Best) – voted through against the Government 173 – 156
The amendment requires local plans to “identify the local nature and scale of housing need in the local planning authority’s area and must make provision for sufficient social rent housing, to eliminate homelessness within a reasonable period as stipulated in the updated local plan, and to provide housing for persons registered on the local housing authority’s allocation scheme within the meaning of section 166A of the Housing Act 1996.” It would apply both “in relation to social housing provided both by the local housing authority where it retains its own housing stock and by private registered providers of social housing”. The information would need to be updated at least annually.
These are all significant interventions. Let’s see the approach that the Government takes back in the Commons. A motion will also be needed to carry over the Bill to the next Parliamentary session, without which we will see (wait for the LURB pun, wait for it, wait) .. LURB’s labours lost.
I have been commuting into Euston station for over twenty years, experiencing increasing frustration: at the past we have lost; the future that we are losing, and at the tatty and graceless perma-temp arrangement we have today.
I’m not sure that this week’s Public Affairs Committee report, HS2 Euston (7 July 2023), has yet had the attention it deserves and I’ll come back to that. But first:
But then so was the 1968 modernist version of Euston when it opened:
This 1968 British Rail brochure gushed with excitement at the wonders of the grill room, party catering room, “high class toilets with showers and baths” and underground car park, showing no regret for the previous building that had been swept away.
Since then, the modernist lines of the new station have of course long been lost by way of multiple interventions. It’s frankly a mess. And for the last few years, as you pull into the station by rail, to the right is a swathe of HS2 construction activity. If you walk out of the station towards Euston Square, via that unsignposted corridor past the left luggage place, through the door into the between the bicycle racks area, across Melton Street you have hoardings either side as you walk past where businesses have been acquired and demolished at the eastern end of Drummond Street – this really is HS2World.
Screenshot courtesy Google
The future
HS2 was going to be the future. Just as those in the 60s were seduced by the clean lines, the white heat of technology, the chance to wipe away the inefficiencies of the past, we were seduced by the idea of high speed rail, with Euston as its southern terminus.
From the Department for Transport’s March 2010 High Speed Rail command paper (foreword by then prime minister Gordon Brown and then Secretary of State for Transport Andrew Adonis):
“… HS2 Ltd’s recommended route for a London-Birmingham high speed line (‘High Speed Two’), which would run from a rebuilt Euston station in London to a new Birmingham City Centre station at Curzon/Fazeley Street, is viable, subject to further work on reducing specific impacts on the local environment and communities.”
“…effective integration with London’s current and planned transport networks is crucial, and that this is best delivered through the combination of a Euston terminus and a Crossrail Interchange station sited between Paddington and Heathrow, which would also provide a link to the Great Western Main Line.”
“…the new British high speed rail network should be connected to the wider European high speed rail network via High Speed One and the Channel Tunnel, subject to cost and value for money. This could be achieved through either or both of a dedicated rapid transport system linking Euston and St Pancras and a direct rail link to High Speed One. HS2 Ltd will carry out further work to assess the viability and cost of each of these, including a full assessment of the business case, prior to any public consultation.”
“The HS2 Y network (so named due to its shape) will provide direct high capacity, high speed links between London, Birmingham, Leeds and Manchester, with intermediate stations in the East Midlands and South Yorkshire.”
“The network will also provide improved links from the Midlands and the North to Heathrow Airport and the Channel Tunnel (via the existing High Speed 1 line). HS2 passengers will be able to travel directly to Heathrow and the Channel Tunnel without having to change trains.”
“Having reviewed the options again the Government’s conclusion remains that Euston is the right site for a London terminus, best serving passenger requirements and offering greater access to alternative onward travel networks than either Old Oak Common or Stratford. Any terminus other than Euston would offer a worse overall balance of costs and benefits.”
These aspirations weren’t properly tested. The Supreme Court held in R (HS2 Action Alliance) v Secretary of State for Transport (22 January 2014) that the white paper was not subject to any requirement for strategic environmental assessment as it was not a plan that “set the framework” for subsequent decision making. This is still one of the most disappointing litigation outcomes of my career and indeed the court’s consideration of Parliamentary sovereignty versus the effect of EU Directives was a forerunner of much of the subsequent debate over Brexit. I’m not sure that Parliamentary sovereignty has helped us achieve a good outcome on HS2…
I re-read yesterday the House of Commons second reading debate (28 April 2014) in relation to what was at that point the High Speed Rail (London–West Midlands) Bill (short title: “A Bill to make provision for a railway between Euston in London and a junction with the West Coast Main Line at Handsacre in Staffordshire, with a spur from Old Oak Common in the London Borough of Hammersmith and Fulham to a junction with the Channel Tunnel Rail Link at York Way in the London Borough of Islington and a spur from Water Orton in Warwickshire to Curzon Street in Birmingham; and for connected purposes.”) . Patrick McLoughlin (now Lord McLoughlin) was Secretary of State for Transport:
“…it is time to connect great cities such as Birmingham, Manchester, Sheffield and Leeds. It is time for better links between north and south and between east and west, and time to connect to world markets to make the most of their skills and talents. It is time for HS2; time for a new north-south railway line.”
With the benefit of hindsight, the two “on the money” contributions to the debate were from MPs from different sides of the political divide, now both sadly deceased, but both superb representatives of their constituents and true Parliamentarians:
Cheryl Gillan, then Conservative MP for Chesham and Amersham, focused on the implications of the choices as to route and extent of tunnelling for the Chilterns area of outstanding beauty, alternative horizontal and vertical alignments having been rejected for reasons which in my view would not have stood up to proper independent scrutiny (I’ve already mentioned the lack of strategic environment assessment at the white paper stage; the other issue was the Select Committee process for testing the detailed proposals in the Bill – see my 30 July 2016 blog post, HS2: The Very Select Committee)
Frank Dobson, then Labour MP for Holborn and St Pancras, focused on the implications for the area surrounding Euston station:
“I should point out the ridiculous situation whereby the hybrid Bill before the House proposes major works in my constituency, none of which the Government now intend to carry out. The Bill also provides for a link from HS2 to HS1. That ridiculous proposal has been abandoned altogether. The Bill provides for the option 8 design of the station at Euston. That ridiculous proposal, we are told, is shortly to be abandoned, but the design, cost and construction timetable for the alternative to it have not yet been worked out, so there’s nowt to vote on.
The neighbourhoods to the east and west of Euston station and its railway approaches are densely populated with a variety of uses. Most of the streets are overwhelmingly residential. They are home to large numbers of residents living in high densities in settled and varied communities, with a wide range of incomes, housing tenures, jobs, ethnic origins and religions. Most of those residents want to continue to live there. They rightly resent patronising references to their neighbourhood by the much lauded chair of HS2 Ltd and have asked me to remind him and everyone else that where they live is not like the Olympic site. It is not a brownfield site, ripe for redevelopment.
The HS2 project as now proposed would wreak havoc on those neighbourhoods. It would expand Euston station by 75 metres to the west, demolish the homes of 500 people and subject 5,000 more to living for a decade next to the construction site or beside roads that will be made intolerable by the heavy goods vehicles servicing the main site and the 14 satellite construction compounds. No consideration has been given to the cumulative harm that all this would do to the quality of life of my constituents. The proposed working hours regime enables work to proceed at any hour of the day or night. Every little park and play space near the site is to be taken over. Small, locally owned and locally staffed businesses, especially cafes, shops and restaurants in Drummond street, face financial disaster. Between 40% and 70% of their business is passing trade from pedestrians going to and from Euston station, which, for the duration of the works—10 years—will be cut off by a solid, 3.6 metre-high security fence.
The people I represent believe that HS2 should not go ahead. Failing that, they believe that HS2 should terminate at Old Oak Common, at least temporarily, to test its capacity and permit the assessment of any capacity needed at Euston to be based on experience rather than the guesswork used so far.”
Of course the Bill was passed in due course. There have been successive plans unveiled for Euston Station and then effectively abandoned:
Updated plans were then unveiled in March 2022 of a revised concept design by a design consortium made up of Arup, WSP, Grimshaw Architects, Haptic, and LDA Design, alongside HS2’s Station Construction Partner, Mace Dragados JV.
Despite nearly all of the disruption feared by Frank Dobson already having been caused by the construction works around Euston that are now well underway, Mark Harper, current Secretary of State for Transport, released a press statement on 9 March 2023, pausing new construction work at Euston for two years:
“The Government is prioritising HS2’s initial services between Old Oak Common in London and Birmingham Curzon Street to provide delivery of passenger benefits as soon as possible. We remain committed to delivering HS2 services to Euston, and will address affordability pressures to ensure the overall spending profile is manageable. We will therefore take the time to ensure we have an affordable and deliverable station design, delivering Euston alongside high-speed infrastructure to Manchester.”
“We remain committed to delivering HS2 services to Euston. We have decided not to proceed with construction at Euston over the next 2 years both to reduce expenditure during that period and to address the affordability challenge set out in the recent National Audit Office report. We will use this time to develop a more affordable scheme design that delivers for passengers, the local community and taxpayers.
The government will not be proceeding to construction on Phase 2a (West Midlands to Crewe) in the next 2 years to reduce expenditure. We will use the time to develop mature designs and delivery approaches to ensure that this section is delivered in the most cost-effective way.”
“As reported in the recent National Audit Office report on Euston, the latest proposed target price from the construction partner (Mace Dragados joint venture) is £4.8 billion – around £2.2 billion over HS2 Ltd’s budget and a higher cost than the previous design.
I visited the Euston site on 5 April 2023 and saw for myself the challenges of constructing a complex station in a dense urban environment that will integrate with the existing conventional station and London Underground and local transport, as well as enabling oversite development.
Nonetheless, the station is not affordable at this cost, nor in any case, does the government have the financial headroom to proceed with the construction over the next 2 years. We will, therefore, use the time to look again at the Euston station design to ensure it delivers for passengers, the local community and taxpayers. This will include considering how we might partner with the private sector to capture benefits for customers. It will require careful prioritisation of requirements and a willingness from stakeholders to compromise.”
It’s way over budget and they don’t know how to build it. And what delay do we think “two years” will turn into? Bodes well doesn’t it?
Which takes us to yesterday’s excoriating Public Accounts Committee’s report, HS2 Euston (7 July 2023).
Its summary:
“Despite being eight years into planning the High Speed 2 station at Euston, the Department for Transport (the Department) still does not know what it is trying to achieve with the station and what sort of regeneration it will support. It is clear now that the £2.6 billion budget HS2 Ltd set for the project was completely unrealistic, even before the impacts of inflation are considered. The Department will now need to reset the project for a second time in order to find a design that is realistic, affordable and provides value for money.
The Department does not know what the additional costs and impacts will be from its decision to pause construction at the station for two years. Working alongside HS2 Ltd, it now has a big task to identify what these costs and impacts are, including the impact on the supply chain and on local residents. It is essential for the Department to collect this information both to help it and HS2 Ltd manage the additional costs effectively and also to better inform any decisions in the future on whether to pause major projects.
Disappointingly, HS2 Euston station is yet another example of the Department making the same mistakes and failing to learn lessons from its management of other major rail programmes. Parliament has also not had the full transparency it needed on the likelihood of cost increases at Euston, despite the improvements the Department and HS2 Ltd have made in reporting on progress.”
I was left feeling that the nuances of how our wretchedly complicated, but still, at some level, functional system are lost in the political chatter. Of course, these sessions aren’t “debates” as such but in large measure a long succession of disjointed interventions and special pleading. Has anyone yet coined the term NIMC? There was certainly a lot of “not in my constituency” and very little discernible appreciation of the utter reliance of this country on private sector risk-taking and funding for most new homes (regardless of tenure) and employment-generating development. How can the development of 300,000 homes a year (confirmed by Michael Gove in Select Committee on 13 June 2022 still to be the target) be remotely possible in this political and fiscal climate? So many MPs assert the case for a lower target for their particular constituency: we know what underlies the clamour against centralisation of power (a theme we’ll come back to shortly). Development is held again and again to be the culprit for failing public services, lack of infrastructure, waiting lists at GPs’ surgeries and so on – ahem, it’s new development that ends up paying for much of this – existing residents should look rather at the ways in which the Government chooses to manage and fund the provision of health care and other services. And if the complaint is not that new residents are overwhelming local services (not true) it’s that developers are securing permissions and then choosing not to building them out (not true, although there are certainly unnecessary delays largely caused by the clunkiness of the planning system itself: you want to amend your development proposals to reflect the inevitable market changes or regulatory requirements since you first applied for planning permission years ago? Well that’s not going to be a simple process at all my friend). (Beauty as a way to securing greater acceptance of development? Despite the Government having alighted upon that particular agenda, driving the proposals around local design codes for instance, that issue seemed to receive little airtime).
Rant over.
The Bill entered Committee stage on 21 June 2022. The Public Bill Committee first heard evidence from various witnesses and then started line by line consideration of the Bill on 28 June 2022. They have not yet reached the planning provisions but the transcript of the discussion so far is here.
The Levelling-up, Housing and Communities Select Committee, chaired by Clive Betts MP, is holding a mini inquiry into the Bill. Michael Gove MP, Stuart Andrew MP and Simon Gallagher all gave evidence on 13 June 2022, which was slightly more illuminating. For instance, an exchange in relation to design codes from the session:
“Chair: Are we going to have the same level of consultation on the supplementary plans and design codes [as on the local plan]?
Simon Gallagher: Yes. One of the objectives of design codes is that they are locally popular, which is going to require a degree of engagement. Supplementary plans are created as one of the vehicles by which there would be opportunity for proper engagement, or legal force design codes. One of the problems with design codes at the moment is that they are often produced as supplementary planning guidance, which has no legal force.
One thing we have done in the Bill, subject to Parliament’s views, is to create something that is a legal device, a supplementary plan, which must be consulted on. Design codes must be provably popular and we are using the Office for Place to champion the best means of that community engagement.”
One of the themes that has dominated discussion of the Bill has been a concern that it could lead to a centralising of power, for instance by way of the requirement that decisions should be made in accordance with national development management policies (as well as local plans), unless material considerations “strongly” indicate otherwise – thereby putting this potentially amorphous concept of national development management policies (the extent of which is for the Government to determine and which can be added to or amended by the Government with as little prior consultation as it chooses) on the same level as statutory local plans.
“a) The Bill represents a significant change to the existing planning system. It undermines an important planning principle, the primacy of the development plan, by elevating national development management policies to the top of the planning hierarchy.
b) Unlike development plans, which are produced locally via a statutory process that involves considerable public participation, the Bill contains no obligation to allow the public to participate in the development of national development management policies.
c) The Bill also introduces two new development plan documents, spatial development strategies and supplementary plans. The Bill provides for very limited opportunities for public participation in the production of these documents.
d) The Bill introduces a new mechanism to allow the Secretary of State to grant planning permission for controversial developments, bypassing the planning system entirely. There is no right for the public to be consulted as part of this process.
e) Overall, in our view the Bill radically centralises planning decision-making and substantially erodes public participation in the planning system.”
Clive Betts pursued this theme with the witnesses on 13 June 2022:
“Chair: I am told that this is new in the way it is written into legislation. We have had very interesting legal advice from Paul Brown QC and Alex Shattock from Landmark Chambers, and it might be helpful if the Committee wrote to you with some of the questions that they have raised, which are pretty serious accusations of a centralisation that these measures are bringing about.
Michael Gove: Of course, I would be more than happy to explain the position and, indeed, any distance that these proposals place between themselves and the existing practice. I do not believe that they do significantly, but I am very happy to engage with the advice that the Committee has sought, and with others as well.
Simon Gallagher: Just to add to that, the Secretary of State referred a few minutes ago to the national planning policy framework prospectus that we were going to publish in July. We intend to set out in that how we can use these powers most effectively. That will give us the basis for proper engagement. I accept that, on the face of the Bill, it is a bit hard to read our intentions, so we need a little bit more detail and explanation out there, which will help.”
There was a further session on 20 June 2022, with evidence given by Victoria Hills RTPI), Hugh Ellis ((TCPA)and Chris Young QC.
Clive Betts’ has subsequently written to Michael Gove asking for his response by 4 July 2022 to a number of points in the “opinion” by Paul Brown QC and Alex Shattock (NB for what it’s worth, it’s not an opinion – barristers are careful in their use of language, it’s just a briefing note).
This month we can also expect to see the Government’s prospectus as to its intended approach to revising the NPPF as well as how it intends to draw up its national development management policies.
We are going to be running our own discussion on Clubhouse on the “who will have the power?” question, at 6 pm on 19 July. More details soon but do join here. Indeed, if you would like to speak do let me know – we would like a diverse range of voices and views.
I will also be speaking at the National Planning Forum event “The good, the bad and the beautiful – the Levelling Up and Regeneration Bill – a planning panacea?” on 5 July and hope to explore the issues a little further alongside an excellent panel of fellow speakers.
the right not to be punished for something that wasn’t against the law at the time (Article 7)
the right to respect for family and private life (Article 8)
freedom of thought, conscience and religion (Article 9)
freedom of expression (Article 10)
freedom of assembly (Article 11)
the right to marry and start a family (Article 12)
the right not to be discriminated against in respect of these rights (Article 14)
the right to protection of property (Protocol 1, Article 1)
the right to education (Protocol 1, Article 2)
the right to participate in free elections (Protocol 1, Article 3)
the abolition of the death penalty (Protocol 13)
This would be no coincidence. The UK was one of the founding members of the Council of Europe, which comprises 46 member states since the expulsion of Russia in March 2022. Whilst it includes all 27 EU member states it is of course entirely separate from the EU.
“The Council of Europe was founded after the Second World War to protect human rights and the rule of law, and to promote democracy. The Member States’ first task was to draw up a treaty to secure basic rights for anyone within their borders, including their own citizens and people of other nationalities.
Originally proposed by Winston Churchill and drafted mainly by British lawyers, the Convention was based on the United Nations’ Universal Declaration of Human Rights. It was signed in Rome in 1950 and came into force in 1953.”
Sad fact of human society: states and public bodies, on occasion, whether carelessly or on purpose, breach these fundamental rights. Of course when this happens there needs to be redress available, without disproportionate cost and delay. And let’s not kid ourselves via some weird form of British exceptionalism that UK institutions have ever been, are or will ever be flawless paragons of virtue.
“In its manifesto for the 1997 general election, the Labour Party pledged to incorporate the European Convention into domestic law. When the election resulted in a landslide Labour victory, the party, under the leadership of Tony Blair, fulfilled the pledge by the Parliament passing the Human Rights Act the following year.
The 1997 White Paper “Rights Brought Home” stated: “It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts – without this inordinate delay and cost.” [Wikipedia]
Back to that Equality and Human Rights Commission website:
“The Act has three main effects:
1. You can seek justice in a British court
It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. This means that if your human rights have been breached, you can take your case to a British court rather than having to seek justice from the European Court of Human Rights in Strasbourg, France.
2. Public bodies must respect your rights
It requires all public bodies (like courts, police, local authorities, hospitals and publicly funded schools) and other bodies carrying out public functions to respect and protect your human rights.
3. New laws are compatible with Convention rights
In practice it means that Parliament will nearly always make sure that new laws are compatible with the rights set out in the European Convention on Human Rights (although ultimately Parliament is sovereign and can pass laws which are incompatible). The courts will also, where possible, interpret laws in a way which is compatible with Convention rights.”
As at December 2019, “there have been 547 judgments concerning the UK up to the end of 2018. Of these, over half (315) found at least one violation of the European Convention on Human Rights, and about a quarter (141) found no violation.” (House of Commons Library publication UK cases at the European Court of Human Rights since 1975, 19 December 2019). Have a browse – the cases do not concern trivial matters, as is sometimes made out.
In our planning world, the rights that are most frequently relevant are:
The right to a fair trial (article 6), most particularly article 6.1 which is not limited to criminal trials but any determination by a state body as to an individual’s or organisation’s rights and obligations:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
I have emboldened the key elements of interest.
The right to respect for family and private life (Article 8)
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The right to protection of property (Protocol 1, Article 1), particularly relevant in the field of compulsory purchase:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Other rights of course are relevant in particular cases, for example the right not to be discriminated against (article 14) frequently arises in issues concerning gypsies and travellers.
Soon after the 1998 Act came into law, the House of Lords tested various aspects of our planning and compulsory purchase system as against Convention rights, in the Alconbury cases (9 May 2001), and the system was found to be compliant – as it was then at least (we must not be complacent as regards any changes).
The English courts have subsequently considered the relevance of the rights to particular planning situations in many cases but this has certainly not opened the floodgates.
Two examples:
R (RLT Built Environment Limited) v Cornwall Council and St Ives Town Council (Hickinbottom J, 10 November 2016) concerned a challenge to the policies in the St Ives neighbourhood plan designed to limit second home ownership by imposing residency requirements. The developer claimant sought unsuccessfully to argue that the policies contravened article 8.
The judge rejected the claim:
“Where article 8 rights are in play in a planning control context, they are a material consideration. Any interference in such rights caused by the planning control decision has to be balanced with and against all other material considerations, the issue of justification for interference with article 8 rights effectively being dealt with by way of such a fair balance analysis.
That balancing exercise is one of planning judgment. Consequently, it may be amenable to more than one, perfectly lawful, result; and this court will only interfere if the decision is outside the legitimate range. Indeed, in any challenge, the court will give deference to the decision of the primary decision-maker, because he has been assigned the decision-making task by Parliament, and he will usually have particular expertise and experience in the relevant area. Such a decision-maker will be accorded a substantial margin of discretion. The deference and margin of discretion will be the greater if he has particular expertise and experience in the relevant area, and/or if he is acting in a quasi-judicial capacity (such as an inspector).
If the decision-maker has clearly engaged with the article 8 rights in play, and considered them with care, it is unlikely that the court will interfere with his conclusion. Article 8 rights are, of course, important: but it is not to be assumed that, in an area of social policy such as planning, they will often outweigh the importance of having coherent control over town and country planning, important not only in the public interest but also to protect the rights and freedoms of other individuals. In practice, cases in which this court will interfere are likely to be few.”
In R (Moore & Coates) v Secretary of State (Gilbart J, 21 January 2015) a claim based on article 6 succeeded. This was the challenge to the then Secretary of State’s policy to recover or call-in gypsy and traveller cases, causing huge delays in decision making.
“To anyone with experience of development control and planning inquiries, it is remarkable that cases involving a modest amount of evidence, and typically taking two days at most, could then require consideration for in excess of 6 months, let alone the 10 months that has elapsed in Mrs Coates’ case. I recognise that Mrs Moore’s case has involved some complexities, but there is no evidence at all that it was anything but atypical. But as Mr Watson’s evidence showed with clarity, it is the effect of the recovering of all cases which was expected to, and has, caused significant delays in determination. It was not the issues raised by any of the cases which caused the delays but the Ministerial decision to recover them all for determination. No evidence has been put forward by the SSCLG to show that the delays were necessary in travellers’ cases, and it must again be observed that although WMS 1 sought to stress the same substantive policy message for cases in the Green Belt relating both to travellers’ housing and “conventional” housing, yet appeals of the latter kind have not been delayed whereas appeals of the former kind have been delayed, and considerably so. The pitches concerned (and certainly so in the Claimants’ cases) contain their homes where they live, or wish to live, with their children. The SSCLG has failed to show that the delays caused to the determination of the appeals was a proportionate response to the issue of giving the policy “steer.” It follows that the appeals have not been determined within a reasonable time.”
Here, the ability to use article 6 was certainly a useful hook and the reference in article 6 to decisions needing to be made in a “reasonable time” is pretty much all we have to hang on when complaining about the inevitable delays that are one of the root causes of dissatisfaction in the planning system!
Although quite dated, the House of Commons Library research briefing Human Rights and Planning (21 June 2010) is a further useful resource.
My reflection would be that in our field the Human Rights Act has operated as was envisaged. Instead of the prolonged uncertainty to everyone caused by aggrieved parties deciding to continue their battles in Strasbourg, human rights issues have been dealt with by the Planning Court, and on appeal, as part and parcel of the challenge process. Even drawing upon the ECHR jurisprudence that is regarded by our Government with such suspicion, winning on a human rights point is not exactly easy.
But when it comes to public policy, the planning system is always a sideshow. Driven by political sensitivities in relation to areas such as extradition policy and prisons, the Government has of course been intent on reducing the influence of the Convention and the risk of judgments against it by the ECHR. Hence, its consultation document Human Rights Act Reform: A Modern Bill of Rights (14 December 2021):
“We make far-reaching proposals for reform, with a particular focus on those quintessentially UK rights, such as freedom of speech and the right to trial by jury. We examine problematic areas, including the challenges in deporting foreign national offenders. We consider in detail the procedural framework of the Human Rights Act. And we look at the relationship between the UK courts and Parliament and the European Court of Human Rights in Strasbourg.
We intend to revise and reform the flaws we have identified, and replace the Human Rights Act with a modern Bill of Rights, one which reinforces our freedoms under the rule of law, but also provides a clearer demarcation of the separation of powers between the courts and Parliament.
Our proposals recognise the diverse legal traditions across the UK, alongside our common heritage. We will be seeking the views of each of the devolved administrations, and across all four nations of the UK, to ensure we safeguard our human rights protections in accordance with a common framework, whilst reflecting our diversity and devolved competences.
We will carefully consider all the responses we receive, as the government takes forward the proposals in this consultation. The task of nurturing the UK’s tradition of liberty and rights is never finished. This consultation turns the first page of the next chapter in our long history of human rights – and begins the work to refine our law, curtail abuses of the system, restore public confidence, reinforce the independence of the judiciary, and shore up the sovereignty of elected law-makers in Parliament.”
The Government’s consultation response is fascinating. “Carefully consider”, my foot! The majority of respondents to each question raised favoured no change but such is the nature of consultation the Government has sailed on. (For instance 90% of respondents disagreed that a claimants should have to show a “significant disadvantage” to be able to bring a claim but the government has not backed down – in these circumstances what really is the point of consultation, or, more to the point, responding to consultation?).
“This country has a long and proud tradition of freedom which our Bill enhances, for example, in respect of free speech and recognition of the role of jury trial. Equally, over the years mission creep has resulted in human rights law being used for more and more purposes, with elastic interpretations that go way beyond anything that the architects of the Convention had in mind. Following careful consideration of the responses to the government’s consultation on the Bill of Rights, these reforms reinforce our tradition of liberty whilst curtailing the abuses of human rights, restoring some common sense to our justice system, and ensuring that our human rights framework meets the needs of the society it serves. As we make these reforms, we are clear that we are committed to remaining party to the European Convention on Human Rights (ECHR).“
For a summary of the Bill’s contents and actual implications, I urge you now at least to skim through Mark Elliott’s blog post The UK’s (new) Bill of Rights (22 June 2022). Here is an expert on the subject – Professor of Public Law and Chair of the Faculty of Law at the University of Cambridge and former Legal Adviser to the House of Lords Constitution Committee.
In summary he argues “that the Government’s strategy appears to involve making it more difficult for human rights to be enforced in UK law both by marginalising the domestic influence of the ECtHR and by limiting the capacity of domestic courts to uphold Convention rights. [He concludes] that these policy objectives form part of a wider picture according to which the present UK Government exhibits authoritarian tendencies that are in tension with British constitutional tradition.”
His conclusion is that this is “a Bill that seeks to diminish the domestic legal impact of the transnational human rights system of which the UK has chosen — and agreed in international law — to be a part, and which seeks at the same time to make significant inroads into the powers of domestic courts to uphold fundamental rights. All of this is infused with the notion of ‘taking back control’ from those — ‘foreign’ judges in particular, but also courts and lawyers more generally — who are viewed as an inconvenience at best, an illegitimate interference at worst. The Government claims to be doing this in the name of — and the Bill explicitly references — ‘parliamentary democracy’. But it is becoming abundantly clear that the true objective underpinning this Bill (and the Government’s wider project) concerns not the so-called restoration of parliamentary sovereignty or the strengthening of democracy, but the entrenchment of a form of executive hegemony — one that smacks of authoritarian resistance to scrutiny and is antithetical to the best traditions of the British constitution.”
The Bill starts with a curious “introduction” clause:
Of particular relevance to our subject area I would identify:
• Various attempts to constrain the role of the courts versus that of the Government or Parliament (starting with various passages in that clause 1, but see eg clause 7)
• Various attempts to warn the courts away from applying or expanding Strasbourg jurisprudence (eg see clause 2)
• Preventing UK courts from interpreting Convention rights so as to require a public authority to comply with a positive obligation (clause 5)
• Placing very high thresholds in the way of claimants seeking remedies in UK courts (a “victim” plus “significant disadvantage” test for standing – clauses 13 and 15 – that is tighter than the standing test in relation to judicial review)
What is this likely to mean in practice for our planning and compulsory purchase system?
• Human rights compliance cases are likely to be even more difficult to run in the UK courts, leading some litigants to resort to commencing claims in the European Court of Human Rights in Strasbourg (probably having first had to try – and fail – in the UK courts).
• In practice, weaker discipline over the behaviour of the Government and public bodies – this will be to the detriment of good governance.
• Generally, more uncertainty as to the appropriate tests for the UK courts to apply in human rights cases, as case law develops around the new tests, in some parts of the Bill expressed in curiously subjective or general language.
What this Bill most certainly does not do is give any individual or company more rights than at present; quite the contrary. If the 1998 Act brought the rights home, to use the language of the 1997 white paper, such that they could be relied upon in the UK courts, this Bill does the opposite – their utility in the UK courts is to be constrained, meaning that once again the ultimate backstop is a claim to the European Court of Human Rights in Strasbourg.
Whether constraining the role of the UK courts in relation to the protection of our human rights is a good thing or a bad thing might depend upon whether which side of the fence you are on – but remember: there isn’t one of us who may not need to rely on our rights as against the state at some point, whether in our personal or work lives.
And if we are going to have a Bill of Rights Act, shouldn’t we have a think about what further rights should now be included?
Topically, the application of the Convention (particularly article 1 of the first protocol – the right to protection of property) very much came into our clubhouse discussion on 15 June, Land value capture via CPO. You can listen again here.
My Town Legal colleagues have put together a fantastic (I think) 17 page summary of the main planning and compulsory purchase provisions of the Bill. Thanks Safiyah Islam and the following contributors:
• Part 3, Chapter 1 – Planning Data – Aline Hyde
• Part 3, Chapter 2 – Development Plans – Emma McDonald
• Part 3, Chapter 3 – Heritage – Cobi Bonani
• Part 3, Chapter 4 – Grant and Implementation of Planning Permission – Lucy Morton
• Part 3, Chapter 5 – Enforcement of Planning Controls – Stephanie Bruce-Smith
• Part 3, Chapter 6 – Other Provision – Stephanie Bruce-Smith
• Part 4 – Infrastructure Levy – Clare Fielding
• Part 5 – Environmental Outcomes Reports – Safiyah Islam
• Part 6 – Development Corporations – Amy Carter
• Part 7 – Compulsory Purchase – Raj Gupta
* Relevant clauses in Part 2 (Local Democracy and Devolution), Part 8 (Letting by Local Authorities of Vacant High-Street Premises), Part 9 (Information About Interests and Dealings in Land) and Part 10 (Miscellaneous) – Victoria McKeegan
If you would like to receive further detailed updates from time to time please email town.centre@townlegal.com.
I held a Clubhouse session on 12 May 2022 where I discussed the changes and their possible implications alongside Catriona Riddell, Phil Briscoe, Nick Walkley and Meeta Kaur. It is available to listen to here.
For a deeper dive into the compulsory purchase elements, do join our next Clubhouse session at 6 pm on Tuesday 17 May 2022, where my colleagues Raj Gupta and Paul Arnett will be leading a discussion with special guests Charles Clarke (DLUHC, previous chair of the Compulsory Purchase Association), Henry Church (CBRE, and current chair of the Compulsory Purchase Association), Caroline Daly (Francis Taylor Building), Virginia Blackman (Avison Young) and Liz Neate (Deloitte). Some line up! Join here.
Raj and Paul have also started a blog, Compulsory Reading, focused on CPO issues. The first post is here and, guess what, this will be compulsory reading if your work touches at all on the intricate and changing world of compulsory purchase law.
Phew! So what was I getting at in the heading to this post? Surely any fule kno that there was once a government white paper in August 2020 that, amongst other things, proposed a more zonal approach to planning – with local plans throwing all areas into three hoppers: protected, restricted and growth – but that the political lesson learned was that this would be a vote loser and so the zonal approach was abandoned by incoming Secretary of State Michael Gove in the wake of the Chesham and Amersham by-election?
The idea of growth areas (where allocation would amount to automatic development consent) has certainly been abandoned, but the consequence of a number of the proposals in the Bill in my view leads us more towards a system where there is much less decision making flexibility in relation to individual planning applications and appeals. Instead, planning decisions will need to be made in accordance with the development plan and national development management policies “unless material considerations strongly indicate otherwise”.
So developers will need to make sure that:
⁃ development plans (local plans, neighbourhood plans) etc allocate the necessary land.
– the associated mandatory local design codes are workable
⁃ they can work within the constraints of whatever national development management policies the Government arrives at.
If development accords with these requirements, planning permission should be a doddle. If not, you plainly need to overcome a heavy presumption against. Our current flexible system (sometimes good, sometimes bad) will take a big lurch towards being rule-based or, dare I say it, zonal.
This may be a Good Thing or it may be a Bad Thing. Much depends on whether development plans, local design codes and national development management policies are properly tested for their realism. There will be even more focus on testing the soundness of local plans.
However, when it comes to local plan making, there are some major unresolved uncertainties:
⁃ First, what housing numbers do local authorities need to plan for? The Government still aspires to a 30 month local plan preparation to adoption timescale but that is only going to work if you have a largely “plug in and play” approach to the numbers, as was envisaged in the White Paper. What will happen to the standard methodology? We don’t get know. The Government’s policy paper says this:
“The changes in the Levelling Up and Regeneration Bill will require a new National Planning Policy Framework for England. The Government continues to listen to the representations of MPs, councillors and others on the effectiveness not only of the formula but the surrounding policies. Alongside Committee stage of the Bill, it intends to publish an NPPF prospectus setting out further thinking on the direction of such policies.”
What numbers are we planning for as a country? Are we still targeting 300,000 homes a year? The Government’s response to the Select Committee report on the planning white paper says this:
“The Government is determined to create a market that builds the homes this country needs. Our ambition is to deliver 300,000 homes per year on average and create a market that will sustain delivery at this level. There is compelling evidence that increasing the responsiveness of housing supply will help to achieve better outcomes. There seems to be consensus that 250,000 to 300,000 homes per annum should be supplied to deliver price and demand stability. For example, a 2014 joint KPMG and Shelter report highlighted that 250,000 homes per annum were needed to address price and demand pressures.”
⁃ Secondly, what will replace the duty to co-operate, which will be abolished? What will the new duty to assist really amount to? Can authorities adjoining urban areas with high unmet housing needs simply turn away from meeting those needs?
⁃ Thirdly, what if the allocations in the plan prove to be undeliverable or do not come forward? The safety net/potential stick of the five year housing land supply requirement (and presumably the tilted balance) in the case of up to date plans is to be abolished according to the policy paper:
“To incentivise plan production further and ensure that newly produced plans are not undermined, our intention is to remove the requirement for authorities to maintain a rolling five-year supply of deliverable land for housing, where their plan is up to date, i.e., adopted within the past five years. This will curb perceived ‘speculative development’ and ‘planning by appeal’, so long as plans are kept up to date. We will consult on changes to be made to the National Planning Policy Framework.”
Much is to be resolved here before we can begin to work out whether the proposals in the Bill will be an improvement on the present position.
Of course, the Government recognises that more work is needed. The following forthcoming consultation processes are identified:
“Technical consultations on the detail of the Infrastructure Levy and changes to compulsory purchase compensation.
• A consultation on the new system of Environmental Outcomes Reports which will ensure we take a user-centred approach to the development of the core elements of the new system, such as the framing of environmental outcomes as well as the detailed operation of the new system.
• A technical consultation on the quality standards that Nationally Significant Infrastructure Projects will be required to meet to be considered for fast-track consenting and associated regulatory and guidance changes to improve the performance of the NSIP regime.
• Proposals for changes to planning fees.
• Our vision for the new National Planning Policy Framework (NPPF), detailing what a new Framework could look like, and indicating, in broad terms, the types of National Development Management Policy that could accompany it. We will also use this document to set out our position on planning for housing, and seek views on this, as well as consulting on delivering the planning commitments set out in the British Energy Security Strategy.”
I hope this serves as some sort of introduction to the Bill and a taster as to some of the issues which will be occupying so many of us as the Bill passes through its Parliamentary stages. I don’t expect it to be on the statute book before early 2023, with a fair wind, and most of its provisions will not be in force until 2024 at the earliest. Final health warning: Bills change – we can expect plenty of amendments, omissions and additions over coming months.
Aside from my earlier plugs for our newsletters and the Planning Law Unplanned clubhouse sessions, I would also recommend two other blog posts: those of Nicola Gooch and Zack Simons . None of us has come up with a satisfactory LURB pun yet but I’m sure we all have our teams working on it.
The Government is seeking a general legislative power to shut down particular developers’ activities, with no rights of appeal, no rights to compensation and no published set of the criteria which it would apply.
Zack Simons’ concerns set out in his 17 February 2022 #Planoraks blog post are well justified.
My 21 January 2022 blog post “Planning Powers” A Pawn In Unsafe Cladding Negotiation explained the Government’s efforts to “persuade” developers to contribute a further £4bn towards remediating unsafe cladding, on top of the residential property developer tax which applies from 1 April 2022 – with the Secretary of State authorised by the Treasury to “use a high-level “threat” of tax or legal solutions in discussions with developers as a means of obtaining voluntary contributions from them” with one of the threats used being “restricting access to…the use of planning powers”.
“Tough new measures that will force industry to pay to remove cladding and protect leaseholders from exorbitant costs have been unveiled by Secretary of State for Levelling Up Michael Gove today (14 February 2022).
For those in industry not doing the right thing, the government will be able to block planning permission and building control sign-off on developments, effectively preventing them from building and selling new homes.”
“Reflecting the scale of the problem, the government will also be able to apply its new building safety levy to more developments, with scope for higher rates for those who do not participate in finding a workable solution.
The government hopes to not have to use these powers; it wants responsible developers and manufacturers to operate freely and with confidence, to help deliver the homes people need. If they do not act responsibly, they must face commercial and financial consequences.”
Obviously culpable developers need to pay up. But what is proposed is startling to say the least:
So the Secretary of State is seeking the power to prohibit in regulations “persons of a prescribed description from carrying out development” or specified types of development (whether or not they have the benefit of planning permission) as well as the power to “by regulations impose a building control prohibition, as regards buildings or proposed buildings, in relation to persons of a prescribed description” which would prevent them from being able to apply for or be granted building control approval. The Secretary of State would also be able to prescribe “certificates” (not sure what that description is meant to capture) which would not be able to be granted under the Town and Country Planning Act 1990 (and which if granted would be of no effect).
These prohibitions “may be imposed for any purpose connected with—
(a) securing the safety of people in or about buildings in relation to risks arising from buildings, or
(b) improving the standard of buildings.”
The provisions are drafted far too widely. What (unprecedented?) power it would give this Government (and any future Government). Of course, where prohibitions are plainly unjustified (for instance against developers who have done wrong other than not to accede to these demands for a “voluntary” payment or perhaps even if they have made a payment) the regulations could be challenged by way of judicial review (NB we need to keep an eye on ongoing judicial reform!). However, if the legislation were to give the wide discretion currently planned, this would not be easy – any grounds of challenge might need to rely on the limited protections provided by the Human Rights Act (NB we need to keep an eye on… yes, you’re there before me).
I’m concerned that these amendments have been introduced at this late stage in the passage of the Bill, with little advance notice so as to enable proper Parliamentary and more general public scrutiny.
Developers need to meet their liabilities. But this whole exercise seems to be much more of a blunderbuss – aimed at the easiest, biggest, targets and ignoring the significant role that poor regulation (and indeed de-regulation) has played in this whole scandal. Do we really want this legislation on the statute book which could well be misused in the future? Or is it all just a bluff to secure that £4bn?
If anyone would like to participate in a future Planning Law Unplanned clubhouse discussion on the topic, please let me know. 8 March 2022 is a possibility.
In the meantime:
⁃ Spencer Tewis-Allen is leading a discussion on build to rent at 6 pm on 22 February – link to clubhouse app and event here.
⁃ Hashi Mohamed is our special guest at 6 pm on 1 March, discussing his Radio 4 programme Planning, Housing and Politics – link to clubhouse app and event here.
“For years, going green was inextricably bound up with a sense that we have to sacrifice the things we love. But this strategy shows how we can build back greener, without so much as a hair shirt in sight. In 2050, we will still be driving cars, flying planes and heating our homes, but our cars will be electric gliding silently around our cities, our planes will be zero emission allowing us to fly guilt-free, and our homes will be heated by cheap reliable power drawn from the winds of the North Sea. And everywhere you look, in every part of our United Kingdom, there will be jobs. Good jobs, green jobs, well-paid jobs, levelling up our country while squashing down our carbon emissions.”
The document is of course hugely important. Together with the Government’s heat and buildings strategy published the same day, this is the detailed plan, presented to Parliament pursuant to the Climate Change Act 2008, which sets out how our country will achieve its net zero carbon target by 2050. But it has a wider role ahead of next month’s COP 26 event in Glasgow, both pour encourager les autres and, more formally, to be “submitted to the United Nations Framework Convention on Climate Change (UNFCCC) as the UK’s second Long Term Low Greenhouse Gas Emission Development Strategy under the Paris Agreement.”
It’s a detailed document, 368 pages – full of initiatives, science, business exhortation, more acronyms than you could shake a stick at and a fair degree of management consultancy/policy wonk speak (for instance, repeated use of “no regrets” and “low regrets” options terminology). After an evening’s scrolling I’m in no place to determine whether it’s brilliant or bonkers in its world-leading optimism. In fact, as someone always in need of a mental map as to how these sorts of strategy fit into the wider international and national legislative and policy framework, it was a relief to get to the technical annex (from page 306) and the client science annex (from page 362), which made for refreshingly clear if bracing reading.
The lack of any emphasis being given to the planning system as a mechanism for helping to deliver change and regulate against unwelcome outcomes is telling. I was dutifully gathering the snippets but I then read this very good piece by Michael Donnelly which pieces them together very much how I would have liked to have done: Net zero strategy promises to ’embed’ transport decarbonisation in spatial planning and reiterates NPPF review (Planning magazine, 20 October, behind paywall).
The fullest and most direct reference to planning in the whole strategy is probably on page 267:
“National planning policies already recognise the importance of sustainable development and make clear that reducing carbon emissions should be considered in planning and decision making. The National Model Design Code provides tools and guidance for local planning authorities to help ensure developments respond to the impacts of climate change, are energy efficient, embed circular economy principles, and reduce carbon emissions. The government is considering how the planning system can further support our commitment to reaching net zero. We will make sure that the reformed planning system supports our efforts to combat climate change and help bring greenhouse gas emissions to net zero by 2050. For example, as part of our programme of planning reform we intend to review the National Planning Policy Framework to make sure it contributes to climate change mitigation and adaptation as fully as possible.”
There is no indication of how the planning system can help, or when the NPPF is to be reviewed. Of course the twin dangers are of, on the one hand, a set of changes in the near future that address net zero and then a further set of changes to reflect whichever changed direction planning reform more generally is to embark upon following the pause to the white paper thinking, and, on the other hand, a long long wait, whilst everything is knitted together.
The role of the planning system is of course intertwined with the various proposals within the Environment Bill, given plenty of airtime in the document, and, after all this is policy bingo, there are plenty of references to levelling up.
The present vacuum ahead of any hard news on the NPPF or wider reforms is of course being filled with noise, suggestions, exhortations (see eg There’s a climate emergency, and the planning system is not helping (Andrew Wood, CPRE, 18 October 2021) and, particularly recommended, joint guidance published on 19 October 2021 by the RTPI and TCPA on planning and climate change). You’re at a gig and the lights have gone down, the background music has been killed and there’s the occasional roadie scuttling across the stage.
Normal people can stop reading at this pointand jump to the end. But for the cut and paste junkies, here are some other quotes from along the way:
“Deliver four carbon capture usage and storage (CCUS) clusters, capturing 20-30 MtCO2 across the economy, including 6 MtCO of industrial emissions, per year by 2030”
“Following the Phase 1 of the Cluster Sequencing process, the Hynet and East Creating the skilled workforce to deliver net zero and putting UK Coast Clusters, will act as economic hubs for green jobs in line with our ambition supply chains at the forefront of global markets to capture 20-30 MtCO2 per year by 2030. This puts Teesside and the Humber, Merseyside and North Wales, along with the North East of Scotland as a reserve cluster, among the potential early SuperPlaces which will be transformed over the next decade.”
“We will also take a place-based approach to net zero, working with local government to ensure that all local areas have the capability and capacity for net zero delivery as we level up the country. And Government is leading the way – embedding climate into our policy and spending decisions, increasing the transparency of our progress on climate goals, and providing funding to drive ambitious emissions reductions in schools and hospitals.”
“These opportunities show that net zero and levelling up go hand in hand. Delivering net zero allows us to boost living standards by supporting jobs and attracting investment in the green industries of the future, which can be in areas that need this the most. Crucially, delivering net zero also involves supporting workers employed in high carbon industries that will be affected by the transition, by giving them the skills they need to make the most of new opportunities in the green economy. But the link between net zero and levelling up is wider than just the economy, net zero can deliver wider benefits for people and communities across the UK by helping spread opportunity and restore pride in place.
We are already taking action to make the most of these opportunities. We have embedded a net zero principle in our levelling up funding initiatives, such as the Levelling Up Fund and the Towns Fund, so that these schemes can contribute to meeting our net zero targets and help places to reduce their carbon impacts. Later this year, we will publish a Levelling Up White Paper. This will build on the actions the government is already taking to both deliver net zero and level up across the country, including the ones set out in this strategy, and set out new interventions to improve livelihoods and drive economic growth in all parts of the UK.”
“The characteristics of the net zero challenge – requiring action by multiple parties across the public and private sectors, delivery at pace, and management of large uncertainties – underline the need for strong coordination in policy development and clear signalling to markets. Government taking a systems approach to policy will help to navigate this complexity. We must consider the environment, society, and economy as parts of an interconnected system, where changes to one area can directly or indirectly impact others. This will help to ensure we design policy to maximise benefits, account for dependencies, mitigate conflicting interests and take account of learning as we go. It reduces the risk of unintended consequences, ensuring individual decisions designed to help achieve net zero do not end up hindering it or other important objectives.”
“New standards and regulation.
In certain areas government will need to support and complement market-led decarbonisation with standards and regulation to ensure that, where appropriate, green options are pursued, while high carbon options are phased out. This will help to accelerate low regrets areas like energy efficiency, such as ensuring our homes are built to new standards, and high impact areas like zero emission vehicles. It will also ensure suppliers of higher-carbon technologies and fuels provide low carbon alternatives, driving deployment at scale.
• Planning and infrastructure.
Low carbon solutions rely on transforming the infrastructure needed to deliver them. Increasing electricity generation needs to be accompanied by building out a flexible grid. Alongside dedicated hydrogen infrastructure, new CO2 transport and storage infrastructure is needed for the use of CCUS which will require investment of around £15 billion from now to the end of the Carbon Budget 6 period. We need to ensure that low carbon energy generation can be connected to sources of demand geographically, which means improving knowledge of local circumstances and opportunities for generation. We also recognise the importance of the planning system to common challenges like combating climate change and supporting sustainable growth.
• Sustainable use of resources.
Net zero will mean maximising the value of resources within a more efficient circular economy. It will need a significant increase in the use of certain types of resources – critical minerals like lithium, graphite, and cobalt, as well an increased demand on resources like copper and steel – from manufacturing green technologies to building large-scale infrastructure. This will require new robust supply chains and provide economic opportunities, but there will be environmental trade-offs, and potential negative impacts on habitats, biodiversity, and water resources to be managed carefully. For example, ammonia emissions from anaerobic digestion, which can use waste as a feedstock, can also affect biodiversity and health.
• Understanding land use trade-offs.
Like other resources, our land is finite and competition for it will need to be managed as we rely on natural resources and use land for multiple new purposes, such as perennial energy crops and short rotation forestry for energy generation, while allowing for afforestation and peatland restoration to sequester and avoid emissions. We will also need to ensure net zero is compatible with wider uses of land such as agriculture, housing, infrastructure, and environmental goals. These land use challenges are exacerbated by the impact of climate change on the availability of productive land and water in future.”
“New Buildings. We will introduce regulations from 2025 through the Future Homes Standard to ensure all new homes in England are ready for net zero by havinga high standard of energy efficiency and low carbon heating installed as standard. This should mean that all new homes will be fitted with a low carbon heat source such as a heat pump or connected to a low carbon heat network. To reinforce this, we will consult on whether it is appropriate to end new gas grid connections, or whether to remove the duty to connect from the Gas Distribution Networks. As an interim measure to the Future Homes Standard, we plan to introduce an uplift in standards, effective from June 2022, for England that would result in a 31% reduction in carbon emissions from new homes compared to current standards. We will also respond to our consultation for the Future Buildings Standard for new non-domestic buildings.”
“47. We are driving decarbonisation and transport improvements at a local level by making quantifiable carbon reductions a fundamental part of local transport planning and funding. Local Transport Plans (LTPs) – statutory requirements that set out holistic place-based strategies for improving transport networks and proposed projects for investment – will need to set out how local areas will deliver ambitious carbon reductions in line with carbon budgets and net zero.
48. We will embed transport decarbonisation principles in spatial planning and across transport policy making. Last year, the government set out proposals for a new and improved planning system, central to our most important national challenges, including combating climate change and supporting sustainable growth. The National Model Design Code, published in July this year, guides local planning authorities on measures they can include within their own design codes to create environmentally responsive and sustainable places. The National Model Design Code provides tools and guidance for local planning authorities to help ensure developments respond to the impacts of climate change, are energy efficient, embed circular economy principles and reduce carbon emissions.”
“The UK has a limited amount of land and delivering net zero will require changes to the way this land is used, for example, for afforestation, biomass production, and peat restoration. Opportunities for land to be used for multiple purposes, such as agroforestry will help to make sure land use for decarbonisation purposes is balanced with other demands, such as housing development and food production. These changes are likely to have varying effects on wider environmental outcomes and may completely alter the character of some landscapes and rural livelihoods (see section below). Land use change must be designed in a systemic, geographically targeted way with appropriate local governance and delivery structures which consider the complex range of interacting social, economic, and demographic factors. To support this, government is developing a Net Zero Systems Tool which aims to allow key decision makers to gain new insights and understanding, by highlighting dependencies and trade-offs within the land use system, as well as by demonstrating the knock-on effects of proposed policies. In addition, through the Environment Bill, the Government is introducing Local Nature Recovery Strategies (LNRS), a spatial planning tool for nature, allowing local government and communities to identify priorities and opportunities for nature recovery and nature-based solutions across England. The Bill includes a specific duty on all public authorities to “have regard” to relevant LNRSs and the spatial information they provide will support the development of local plans and other land use change incentives. Delivery of priorities and opportunities identified in LNRS will be supported by a range of delivery mechanisms including our environmental land management schemes, and in particular, the Local Nature Recovery scheme. By 2028, Defra’s current plans are for total spend to be evenly split between farm-level, locally tailored, and landscape-scale investment within ELM.”
“Local green infrastructure and the environment
34. Government will launch a new National Framework of Green Infrastructure Standards in 2022. This will support local areas and regions to deliver well-designed green infrastructure where it is most needed to deliver multiple benefits. These networks of green and blue spaces and other natural features, including trees, provide an opportunity to benefit local economies and bring about long-term improvements in people’s health and wellbeing. At the same time, it can help us to mitigate and adapt to climate change, through capturing and storing carbon, shading and cooling, and reducing flooding.
35. The Environment Bill is also creating a new system of spatial strategies called Local Nature Recovery Strategies to target action for nature and to drive the use of nature-based solutions to tackle environmental challenges like climate change. It is expected that there will be approximately 50 Local Nature Recovery Strategies covering the whole of England with no gaps and no overlaps. Preparation of each Strategy will be locally led and collaborative, with local government taking a critical role. This will provide local government with a new tool through which they can work with local partners to identify where effort to create or restore habitat would have greatest benefit for climate mitigation, whilst also having positive benefits for nature and the wider environment. Between 2021 and 2027, we will be doubling our overall investment in flooding and coastal erosion to £5.2 billion.
36. In addition, £200 million will be invested in the Innovative Flood and Coastal Resilience Innovation Programme. This will help over 25 local areas over six years to take forward wider innovative actions that improve their resilience to flooding and coastal erosion. The Environment Agency is also working with coastal authorities on a £1 million refresh of Shoreline Management Plans.”
Normal people you can start reading again…
I hope that was at least a taster and I recommend that you dip into the document itself. Whatever happens to the planning system, the initiatives set out in the document are undoubtedly going to be central to our lives and work over the years to come.
We’re going to be discussing all this for an hour or so from 6 pm on Tuesday 26 October 2021 on clubhouse. I’ve never been to a book club session but maybe it’ll be a bit like that, without the tortilla chips or wine. Join us. Link to the app here.
See also these tweets today from the Daily Telegraph’s chief political correspondent Christopher Hope (thank you for alerting me, Mike Best):
Congratulations to the 42% in the ITV poll but for the rest of us this is all no surprise. The House of Commons BEIS Committee’s 22 July 2021 report Post-pandemic economic growth: Levelling up lays it bare:
From the introduction:
“On his appointment as Prime Minister in July 2019, Rt Hon Boris Johnson MP said in a speech, on the steps of Downing Street, that he would “answer the plea of the forgotten people and the left behind towns” and “level up across Britain” by unleashing the “the productive power not just of London and the South East but of every corner of England, Scotland, Wales and Northern Ireland””.
From the summary:
“Levelling up—meaning, in our view, the spreading of economic and social opportunities more evenly across the country—is laudable and should be a priority for any Government.
However, whilst recognising the understandable impact the pandemic has had on Government capacity, we are disappointed at how little detail has been put forward to explain what the Government sees levelling up to mean and how it will be delivered.”
“As such, we have made several recommendations to Government, including recommendations to:
• Urgently publish the Levelling Up White Paper, so that we are clear on what the Government defines levelling up to mean and what its priorities are.
• Work with the Office for National Statistics, the Cities and Local Growth Unit in the Business Energy and Industrial Strategy department and the National Audit Office to agree a set of metrics for the routine reporting of progress in delivering levelling up priorities.
• Establish the functioning of a Cabinet Committee on levelling up, that collaborates with devolved, regional, and local leaders.
• Recognise that inequalities exist across the whole of the UK, including within cities, and that levelling up priorities should therefore not be focussed on only some regions or sub-regions of the UK.
• Ensure that each region in England has the capacity to competitively bid for Government funding, given that some areas in England have a greater capacity to engage with Whitehall than other areas.
The levelling up agenda has been described by the Government as its ‘most important mission’. It is now imperative for Ministers to translate this from a political promise into a deliverable programme for Government. The forthcoming Levelling Up White Paper, which we understand will now include the previously announced Devolution White Paper, gives the Government the opportunity to be bold and progressive. We look forward to its publication and, in future, engagement with Ministers on their delivery of levelling up.”
From the main part of the report:
“Giles Wilkes, former industrial and economic special adviser to former Prime Minister Rt Hon Theresa May MP, noted that the Government’s use of the phrase levelling up was so widespread that it had become nothing more than a generic term for “make things better”. Rafael Behr of the Guardian referred to levelling up as a “rhetorical zeppelin”, which was “floating on the political horizon, carrying no cargo of policy”.
“The current available documents on the policy instruments the Government aims to use to level up—the Conservative Party Manifesto, its submission to this inquiry and the 2021 Queen’s Speech—show a wide ranging and disjointed programme of random policies from an obesity strategy, an increase in police officers, to funding on A roads and the creation of Freeports. Although these policies are all very interesting and welcome, it is difficult to see how they all tie together under one over-arching strategy. The cohesion of the whole has not been well described to identify how these fit together. If the Government is serious about levelling up and for it to be a substantive strategy rather than merely a slogan, it must spell out a coherent ‘plan’ as a matter of urgency”
Is this unfair? Possibly not. Motherhood is good and it’s clear from the Conservative 2019 manifesto that levelling up is good:
“Our plan means making sure people have access to world-class public services, that they feel safe on the streets, that working families get to keep more of their own money, and that we help with cost of living pressures.
But it also means making sure that we share prosperity across the country, addressing the longstanding economic challenges in parts of the country. We will invest responsibly and prudently in the infrastructure that can make a difference, and ensure communities in every corner of the United Kingdom are pleasant, safe and prosperous. And we will invest far more in helping workers train and retrain for the jobs and industries of the future. Investing in people, restoring the fabric of our towns and cities, building the homes we need, supporting science and industry, strengthening the great Union between the United Kingdom’s four nations – that is how we will unleash our country’s full potential.”
“…in his first months as Prime Minister, Boris Johnson has set out an agenda for levelling up every part of the UK – not just investing in our great towns and cities, as well as rural and coastal areas, but giving them far more control of how that investment is made. In the 21st century, we need to get away from the idea that ‘Whitehall knows best’ and that all growth must inevitably start in London. Because we as Conservatives believe you can and must trust people and communities to make the decisions that are right for them.”
There is of course the £4.8 billion Levelling Up Fund, announced as part of the 2020 Spending Review. As set out in the March 2021 Levelling Up Fund Prospectus:
“The Fund will focus on capital investment in local infrastructure thereby building on and consolidating prior programmes such as the Local Growth Fund and Towns Fund. It will have a visible, tangible impact on people and places, and support economic recovery. In doing so, it will also create opportunity across the country, prioritising bids that invest in regeneration and growth in places in need and areas of low productivity and connectivity.”
The first round of the fund is focusing on smaller transport projects; regeneration and town centre investment, and cultural investment : £4 billion for England for the next four years to 2024-2025 and at least £800,000 for Scotland, Wales and Northern Ireland. Save in Northern Ireland, funding will be delivered via local authorities. The fund is jointly managed by HMT, DLUHC and DfT.
The prospectus was published alongside a list of local authorities by priority category. There is also a June 2021 prioritisation of places methodology note. The Good Law Project secured permission from Bourne J on 19 August 2021 to take to a full hearing its judicial review of the methodology, which is reported to be based on its allegations that (according to the news piece) “the Government is using the £4.8bn fund to funnel money into regions and towns of political benefit to the Conservative Party. The not-for-profit legal group alleges that the Government is guilty of ‘pork barrel politics’. They cite, for example, the fact that 22 of 26 places that received funds from the Towns Fund are represented by Conservative MPs.”
I won’t comment on that allegation but do note that there is an unusual bidding criterion for local authorities, which gives MPs an important role in the allocation of monies:
“We expect bidding authorities to consult local Members of Parliament as part of their bid; though such support from local MPs is not a necessary condition for a successful bid. MPs can have a positive role in prioritising bids and helping broker local consensus. When considering the weighting given to bids, the expectation is that an MP will back one bid which they see as a priority, and any bid may have priority backing from multiple MPs and local stakeholders. But Members of Parliament may also want to support any or all schemes that would have a benefit to their constituencies in the usual way.”
The levelling up agenda is currently a potent political theme for Conservative MPs, 40 of whom formed a “Levelling Up Taskforce” in September 2020, the launch of which was marked by the publication by Onward of a report by MP Neil O’Brien, Measuring up for levelling up.
Neil O’Brien was subsequently appointed in May 2021 by the prime minister as Levelling Up Adviser. The announcement was made within a 4 May 2021 government press statement which referred to a “landmark” levelling up white paper “later this year, articulating how bold new policy interventions will improve opportunity and boost livelihoods across the country as we recover from the pandemic.” “The White Paper – which will be led by the Prime Minister – will focus on challenges including improving living standards, growing the private sector and increasing and spreading opportunity.” This white paper of course will partly be a rebadged version of the white paper which was originally promised for publication last year on “devolution and local recovery”. As of the date of the press statement, a “new No10 – Cabinet Office Unit [was to] be set up to drive through work on the White Paper.”
I am not sure how much “driving through” has since taken place but Neil O’Brien of course has been now appointed as a minister within the new Department for Levelling Up, Housing and Communities. In the Government’s 19 September 2021 press statement announcing the name of the new Department (massively symbolic in itself) and make-up of its ministerial team it was stated that former Bank of England chief economist (and incoming chief executive of the RSA) Andy Haldane has been appointed as a permanent secretary in the Cabinet Office for six months to “head up the Levelling Up Taskforce that will report jointly to the Prime Minister and the Secretary of State for Levelling Up, Housing and Communities.”
“The Prime Minister, Boris Johnson MP, said:
This government is committed to uniting and levelling up every part of the UK and I am determined that as we build back better from the pandemic we are geared up with the teams and expertise to deliver on that promise.
Andy is uniquely qualified to lead our efforts to raise living standards, spread opportunity, improve our public services and restore people’s sense of pride in their communities. I look forward to working with him, and with my new ministerial team, to deliver the opportunities this country needs.”
Andy Haldane is a serious individual and it is a significant appointment, if only for a short period of time – blink and it’s gone.
I’m sure I’m not the only person utterly frustrated that the main engine of government in our specialist area of interest is now named, for party political reasons, after such an amorphous concept. I’m still not clear as to what levelling up is (or, rather, what it isn’t) but I sense that for the Government it is at the very heart of its political agenda in a way that will define its priorities in terms of housing and economic growth (and therefore its thinking in relation to reform of the planning system). I’m sorry to reduce it to this because the aspirations are, as the BEIS Committee said, laudable but… is it about any less than “making things better” in such a general sense as to be meaningless, or about any more than focusing on issues are relevant to voters in marginal seats in such tactical ways as have no strategic coherence?
Insights very welcome.
Simon Ricketts, 24 September 2021
Personal views, et cetera
For our Planning Law Unplanned clubhouse event at 6pm on Tuesday 28 September, we are picking up on a comment made by DLUHC minister Eddie Hughes this week that there would be a “full review” of the NPPF. Our theme is NPPF “full review”: what to expect in reality/your dreams? and our special guests will include Steve Quartermain, Nicola Gooch and Mike Best as well as our usual stellar panel. Link to app here.
“If a tree falls in a forest and no one is around to hear it, does it make a sound?”
Maybe the biggest news this week wasn’t the replacement of Robert Jenrick by Michael Gove as Secretary of State for Housing, Communities and Local Government and the consequent likely pause of the still-paused-anyway planning law reforms.
Maybe it was the difficulties which the Government is having with its Environment Bill (original progenitor one M Gove). Aspirations of enactment by the time of November’s COP26 are surely fading fast in the light of a series of defeats for the Government at the report stage of the Bill in the House of Lords. On Monday (13 September 2021) it was already being reported in a Green Alliance blog post, on the back of a Daily Telegraph story, that the Government was reluctant to accept the amendments which had been passed which could ultimately lead to the Bill entering into a period of ping pong (less fun than it sounds) between the Lords and Commons.
– making interim targets for nature, air, water and waste legally binding;
– requiring the Government to make a formal declaration of a biodiversity and climate emergency;
– a more ambitious approach to targets in air pollution;
– making soil health a priority;
– removing exemptions for the Treasury and Ministry of Defence from taking into account environmental principles in policy making.
However, on the day of the reshuffle, 15 September 2021 the Lords continued its scrutiny of the Bill and inflicted a further four defeats by way of voting for amendments which in various ways seek to introduce greater environmental protections. Two of the issues are intertwined with matters to do with planning and development and I thought I would give them a bit of airtime – after all, these days can you be a planning lawyer without being an environmental lawyer? And surely DEFRA and MHCLG are going to have to work with each other in ever closer ways.
Habitats Regulations: limits on powers to amend
Baroness Young, chair of the Woodland Trust and former chief executive of the Environment Agency, moved an amendment to ensure “that powers to amend the Habitats Regulations may only be used for the purposes of environmental improvement following consultation. It ensures that the level of environmental protection that must be maintained includes protection for important habitats, sites and species as well as overall environmental protection”
It was passed 201 to 186.
The amendment provides that the Secretary of State may only amend the regulations
“for the purposes of—
(a) securing compliance with an international environmental obligation, or
(b) contributing to the favourable conservation status of species or habitats or the favourable condition of protected sites;
(c) if the regulations do not reduce the level of protection provided by the Habitats Regulations, including protection for protected species, habitats or sites; and
(i) following public consultation and consultation with—
(ii) the Office for Environmental Protection,
(iii) Natural England,
(iv) the Joint Nature Conservation Committee, and
(v) other relevant expert bodies.”
Duty to implement an enhanced protection standard for ancient woodland in England
Baroness Young moved an amendment “intended to address the more than 800 ancient woodlands in England that are currently threatened by development. As a large number of these threats result from indirect effects of development next to ancient woodland, these changes will improve the weight afforded to protecting these irreplaceable habitats in planning policy.”
It was passed 193 to 189.
The amendment introduces the following additional clause into the Bill:
(1) The Government must implement an enhanced protection standard for ancient woodland, hereafter referred to as the “ancient woodland standard” in England as set out in subsections (2), (3) and (4) and this must have immediate effect.
(2) The ancient woodland standard must set out the steps necessary to prevent further loss of ancient woodland in England.
(3) The ancient woodland standard commits the Government to adopting a Standard of protection which must be a requirement for all companies, persons or organisations involved in developments affecting ancient woodlands in England.
(4) This standard must be that—
(a) any development that causes direct loss to ancient woodland or ancient woodland and ancient and veteran trees must be refused unless there are wholly exceptional reasons and, in addition, a suitable compensation strategy must be in place prior to development commencing,
(b) any development adjacent to ancient woodland must incorporate a minimum 50-metre buffer to provide protection, reduce indirect damage and provide space for natural regeneration,
(c) any ancient or veteran trees must be retained within a development site, including a root protection area and appropriate buffer zone.
(5) This buffer zone must be whichever is greater of—
(a) an area which is a radius of 15 times the diameter of the tree with no cap, or
(b) 5 metres beyond the crown.”
The debate is here and Parliament’s summary of the House of Lords report stage is here.
(Incidentally, Ruth Keating (39 Essex Chambers) gave a very clear summary of the Environment Bill at today’s (virtual) Joint Planning Law Conference. Watch out for the paper in due course.)
As a further indication of how environmental matters are going to take centre stage in coming months, Duncan Field brought to my attention yesterday that Lord Frost made a statement to the House of Lords (16 September 2021) as to the Government’s approach in relation to various areas of retained EU law. A supporting paper, Brexit opportunities: regulatory reforms contains references which may be of interest to those in the planning and environmental areas:
“Environmental Licencing [sic] and Permitting – Defra is continuing to rationalise the existing Environmental licensing and permitting (ELP) regimes so they are more streamlined and easier for businesses and users to navigate, whilst maintaining and even enhancing environmental protections.
Promote a flexible, market-based trading system for biodiversity offset credits – Biodiversity Net Gain (BNG) is a critical part of Defra’s strategy for enhancing the natural environment and promoting sustainable growth. Defra will shortly be publishing a consultation on our plans for implementing BNG. This consultation will include proposals for a market-based approach to delivery of biodiversity offset units.”
That latter is interesting in the context of the biodiversity net gain provisions within the Environment Bill, which do not currently refer explicitly to any notion of a structured “market-based trading system for biodiversity offset credits”.
Keep your ears open is all I’m saying…
Simon Ricketts, 17 September 2021
Personal views, et cetera
And on the theme of ears, do join our clubhouse Planning Law Unplanned event at 6pm this Tuesday 21 September 2021, whether to listen or participate. We will be returning to the big news story and associated question – “ALL SYSTEMS GOVE! What to expect from our new Secretary of State?”. We have a planoply of leading commentators lined up to give their views including Catriona Riddell, Matthew Spry, Zack Simons, Wyn Evans and Nick Cuff as well as our usual planel. Link to app here.
Most of the summer blockbusters were paused from release this summer, except for Tenet, which no-one seems to understand. Oh and the statutory instruments making those major amendments to the GPDO (eg building upwards, and resi development to replace existing commercial buildings) and the Use Classes Order (eg the new class E), which hit our screens just before Parliament rose for the summer recess. The Planning For The Future white paper was published (visually spectacular) after Parliament had risen.
This post looks briefly at the role of Parliament in debating these documents, and at the Rights : Community : Action judicial review of the GPDO and Use Classes Order changes.
The amendments to the General Permitted Development Order and Use Classes Order
The statutory instruments (“SIs”) were made under the negative resolution procedure. This means that although the SIs came into effect on when stated, either House can vote to reject them within 40 sitting days, following a motion (“prayer”) laid by a member of the relevant House. If rejected, the relevant statutory instrument is annulled, i.e. no longer of any legal effect.
There has been no Parliamentary debate so far on any of the SIs, although MHCLG minister Lord Greenhalgh did respond to questions in the Lords on 28 July 2020 (ahead of the Lords going into recess the next day).
Labour has laid a motion against the GPDO SIs, but (1) given the Government’s substantial majority there is surely no realistic likelihood of that succeeding on a vote and (2) the narrative in relation to the changes to the GPDO and Use Classes Order seems to have got hopelessly confused with concerns as to the separate proposals in the white paper in the minds of politicians,the press and the public – see for instance Valerie Vaz, shadow leader of the House of Commons, on 3 September 2020:
“We have prayed against the town and country planning permitted development regulations—I think there are three sets of them. The shadowMinister for Housing and Planning, my hon. Friend Mike Amesbury, has written to the Secretary of State. I hope that the Leader of the House will find time for that debate.
During August Parliament was not sitting, but extremely important announcements were being made. I cannot understand why the Government, who say consistently that Parliament is sovereign, do not come to the House to explain changes in policy. Apparently, algorithms will now be used in planning decisions. That takes away the very nature of making planning decisions—whether relevant considerations are taken into account or whether irrelevant considerations are taken into account—and it undermines administrative law. When you make a decision, you must give reasons.
The Town and Country Planning Association says that 90% of planning applications are approved and there are 1 million unbuilt commissions [sic]. It is time for the shires to rise up and oppose these new policies. Will the Leader of the House ask the current Secretary of State for Housing, Communities and Local Government to come to the House to explain why he is using algorithms to stomp on our green and pleasant land?”
Quite aside from the probably theoretical possibility of any or all of the SIs being annulled, there is also the judicial review that has been brought by a new campaign group, Rights : Community : Action. It describes itself as “a coalition of campaigners, lawyers, planners, facilitators, writers and scientists, united by a shared commitment to tackle the Climate Emergency – with people and for people, and the environment.” There are four protagonists: Naomi Luhde-Thompson (currently on sabbatical from Friends of the Earth), Hugh Ellis (Town and Country Planning Association), Laura Gyte (Oxfam) and Alex Goodman (Landmark Chambers).
“(1) GROUND 1: In respect of each of the three SIs, the Secretary of State unlawfully failed to carry out an environmental assessment pursuant to EU Directive 2001/42/EC (“the SEA Directive”) and the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”).
(2) GROUND 2: In respect of each of the three SIs, the Secretary of State failed to have due regard to the Public Sector Equality Duty (“the PSED”) in s.149 of the Equality Act 2010 (“the EA 2010”).
(3) GROUND 3: In respect of each of the three SIs, the Secretary of State failed to consider the weight of the evidence against these radical reforms, including prior consultation responses and the advice of his own experts. This composite ground is divided as follows:
Ground 3a: The Secretary of State failed to conscientiously consider the responses to the consultation on proposed planning reforms which ran from 29 October 2018 to 14 January 2019
Ground 3b: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State failed to take into account the advice of the government’s own experts: in particular, the findings of the Building Better, Building Beautiful Commission’s “Living with Beauty” Report (“The BBBB Report”), and the findings of his own commissioned expert report “Research into the quality standard of homes delivered through change of use Permitted Development rights” (“The Clifford Report”).
Ground 3c: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State adopted an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed Permitted Development reforms: namely those relating to the deployment of 5G wireless masts.
Ground 3d: In respect of SI 2020/756, the Secretary of State was required to re- consult before introducing Class ZA. There was a legitimate expectation of re- consultation on the proposal for a permitted development right allowing the demolition and rebuild of commercial properties, arising from an express promise to re-consult which was made in the original consultation document.”
Do read the Statement of Facts and Grounds itself for the detail. The Government has served summary grounds of defence but I do not think that they are on line.
The group is seeking an order “declaring that the decision to lay the SIs was unlawful. The Claimant also seeks an order quashing the SIs for unlawfulness.” It was also initially seeking an order “suspending the operation of the SIs until the disposal” of the claim, but it has now withdrawn that request.
On 2 September 2020 Holgate J made an order listing the claim to be heard in court “for 1.5 days in the period between 8th October 2020 to 15th October 2020”. It will be a “rolled up” hearing, i.e. there has been no decision yet as to whether any of the grounds are arguable. The Planning Court has pulled out all the stops to list the case quickly – after all, if any parts of the SIs were now to be quashed just think of the implications and complications! But there must be a good likelihood of the case going to the Court of Appeal or beyond, particularly if any of the grounds gain any traction. There could be uncertainty for some time.
No doubt the claim will touch various raw nerves amongst some – an attack on the Government’s “fast changes” agenda, part reliance on EU-derived environmental legislation, Aarhus Convention costs capping, crowdfunded litigation, “activist lawyers” – it ticks all the boxes! But let’s see what the court makes of it.
The Planning For The Future white paper
The white paper is of course out for consultation, along with the associated shorter term measures document, so it might be said that they don’t amount to significant policy announcements – but that would surely be simplistic: there is a clear direction of travel. With this in mind, being no expert on Parliamentary conventions and procedure, I have two questions:
1. Surely the announcements should first have been in Parliament if I read this House of Commons Library note on Government policy announcements (18 January 2013) correctly?
2. What is the precise status of Planning For The Future? It is expressed on the face of the document to be a “white paper” but would it not usually therefore be expected to have been tabled in Parliament as a numbered command paper and to include the wording: “Presented to Parliament by the Secretary of State for Housing, Communities and Local Government by Command of Her Majesty“? On one level, does it matter? But surely it does?
I also note that some of the shorter term measures (covered in last week’s blog post) could take effect soon after the consultation deadline of 1 October (particularly the introduction of the revised standard method – the “algorithm” if you will) so if there is to be any proper, informed, debate in Parliament I would suggest that there is little time to be lost.
SIMONICITY 