Category: Planning and Infrastructure Bill

Some Week, Some Thoughts

This post will mostly be about judicial review but if instead you have come here for a summary of the implications arising from the joint government/Mayor of London package of support for housebuilding in London (23 October 2025) why not listen to my interview with Concilio’s Nick Dines and we’ll see you back here in 35 minutes?

Judicial review…

Depends which side you’re on doesn’t it.

There have been at least two interesting judgments in the last couple of weeks, interesting for different reasons which nothing to do with the substantive issues involved. I’m not going to summarise the actual cases because they are both covered well (by my Town Legal colleagues Archie Hunter and Adam Choudhury respectively) in Town Legal’s latest weekly planning judgments update (you can subscribe gratis via the button at the foot of the update):

All I wanted to say about CG Fry, given all the excellent summaries that are already out there (including Archie’s), was:

  • Fortune favours the brave. This is a case which was lost by CG Fry at first instance and in the Court of Appeal (all this of course following an unsuccessful planning appeal at which the same arguments were run). Who might have given up rather than carry on, with the exposure to costs arising? Great credit is due to Lord Charlie Banner KC. Would you in that position be resilient enough to hold to your initial opinion and to retain the trust of those relying on it? I’m thinking back to Richard Harwood KC in Dill v Secretary of State (Supreme Court, 20 May 2020) – where the stats were the same: LLW. I’m thinking back also to Estelle Dehon KC in R (Finch) v Surrey County Council (Supreme Court , 20 June 2024) – ruled unarguable on the papers, unarguable at renewal hearing, arguable by the Court of Appeal on two grounds, dismissed then by the High Court and then by the Court of Appeal before success in the Supreme Court: LLWLLW. Within boundaries (some cases are sure-fire losers), litigation is inherently uncertain. Judgments of lower courts may be overturned on appeal. It isn’t over till it’s over. I’ll come back to that theme in my comments on HyNot.
  • Isn’t it interesting that the outcome of the case turned upon the decision of a previous government that the “easy” way to give Ramsar sites the same protection as habitat sites that are protected under the Conservation of Habitats Regulations (special areas of protection and special protection areas) was simply to set that out in national policy rather than by way of amending the relevant legislation? That is now being rectified, belatedly, by way of a government amendment to the Planning and Infrastructure Bill. But isn’t there a lesson when it comes to the NPPF itself or rather the proposed National Development Management Policies, envisaged by mechanisms set out in the Levelling-up and Regeneration Act 2023 as being statutory documents with equivalence to statutory local development plans. Parliament clearly considered that it would not be enough for NDMPs to be given weight through policy-expression but we are all waiting to see in what form these NDMPs are finally going to emerge.
  • Lastly, it’s nice to read a Supreme Court judgment that is so straightforward and clear in its expression – and descriptive of the planning system in a way that any of us would recognise. It’s not always the case (mentioning no names, *coughs* Hillside).

Now to HyNot, again some excellent summaries out there (including Adam’s) so I just wanted to focus on the judge’s comments about “promptness” in bringing judicial review proceedings and on whether the “arguability” threshold should be higher in some cases:

  • This was a permission hearing, where the claimant simply needed to persuade the judge that the claim was arguable.
  • What was under challenge was the grant of consent by Secretary of State for Energy Security and Net Zero of the “HyNet Carbon Dioxide Transportation and Storage Project – Offshore” The project “comprises 3 geological gas storage sites in the Liverpool Bay Area beneath the East Irish Sea. The proposal is designed to store 109 million tonnes of carbon dioxide and is a core part of the Government’s legal commitment to Net Zero. It is expected to create 2,000 construction jobs. The Development (called the Liverpool Bay CCS project) is part of a nationally significant infrastructure development in the North West which will have a very significant regional and national economic impact.”
  • The second paragraph of the judgment describes the claimant as follows: “The Claimant company and the group of individuals behind it do not like CCS in relation to power generation. They oppose it because they believe that CCS in relation to power generation and ‘blue’ hydrogen production is a costly and time-consuming distraction that will lock society into continued fossil fuel use and prevent investment in other more proven climate solutions. The Claimant is a Company Limited by Guarantee which was incorporated the day before this claim was filed. The name chosen by the incorporators of their company, “HyNot”, reveals the nature of its opposition to what, as appears below, is loosely known as the “HyNet Cluster”. The Claimant represents a campaign group which its director, Nicky Crosby, describes as being a loose group of campaigners from different environmental and climate campaign backgrounds, such as Frack Free Dee, Friends of the Earth, Extinction Rebellion, Chester Sustainability Forum, and CAFOD.”
  • Unlike more usual planning cases where there is now a six weeks’ deadline for bringing judicial review proceedings, this was a claim where the traditional judicial review deadline applied that the claim must be brought “promptly … and in any event not later than 3 months after the grounds to make the claim first arose”. The claim was brought on the last day within the three months’ deadline.
  • After finding the claim to be unarguable, the judge found that he would also have refused permission on the basis that the claimant failed to act “promptly”: “challenges to major infrastructure call for particular urgency. Whilst the volume of documentation was substantial, that did not in my judgment justify the delay, especially in circumstances where the Claimant ultimately filed only on a protective basis, without a pleaded case. I consider that the Claimant was aware of all of the information it required to enable it to bring proceedings on the grounds pleaded approximately 8 weeks before it filed its ‘protective’ claim. Certainly, by the end of April 2025 it was aware of the essential substance of the grounds that would have been available to it, and that is all that was required (see British Gas at paras. [141]-[145]). Detailed disclosure normally follows the grant of permission for judicial review, which is the trigger for the duty of candour and cooperation with the court and is not necessary before a claim can be brought (see British Gas at [145]). There is no reason why the Claimant could not have filed (whether ‘protectively’ or with proper pleadings, to be amended if required) much sooner. It is apparent, however, that the Claimant took the position that it could simply wait until the last day of the three-month period to file. The courts have stated emphatically that that is not the case.”
  • Whilst Saini J found the claim to be unarguable, there is an interesting concluding passage in the judgment recording that counsel for the government had urged the judge in submissions “to apply a more demanding test of the Claimant at the hearing than the traditional arguability test familiar at the permission stage”, relying on case law starting with the 1994 Mass Energy case. Counsel (Charles Streeten) “argued that the Claimant must satisfy a heightened test described as a “reasonably good prospect of succeeding” at a substantive hearing. The following facts were said to justify this more onerous hurdle: (1) the urgency (illustrated both by the categorisation of this claim as Significant under CPR 54D paras. 3.1 and 3.2 and by the measure of expedition ordered by Mould J); (2) the fact that a decision on permission has been adjourned to a hearing listed for half a day; (3) that the Court will have the benefit of extensive written and oral submissions from all three active parties; and (4) that the claim substantially affects the interests of a third party (the Developer).”  Whilst this proved unnecessary for his reasoning, Saini J went on to consider this argument “obiter” as lawyers like to say, i.e. even though it was not determinative and therefore less binding in terms of creating any legal precedent, although in my view still interesting. He considered “that there was substantial force in Mr Streeten’s submissions. A court does retain the discretion to require more of a claimant in establishing the merits of its case at a hearing of the type convened before me concerning an urgent matter of national importance, where there has been substantial pre-reading, detailed skeletons and oral submissions over half a day from all relevant parties. The grant of permission in a planning case on the type of facts before me is in itself highly likely to cast a long shadow over a development of national interest, with substantial financing and construction arrangements involving many third parties. I can see the force of an argument that much more than mere arguability of a claim (such as establishing that the claim is more likely than not to succeed) should be required in circumstances where such prejudice will be caused. Uncertainty as to the legal position is itself highly prejudicial in commercial arrangements.”

All this is relevant in the light of continuing thinking by the government as to ways of closing down unmeritorious judicial review cases. I referred in my 25 January 2025 blog post to the government’s announcement as to changes to be made to procedures governing legal changes of development consent order decisions in relation to nationally significant infrastructure projects (now the subject of provisions within the Planning and Infrastructure Bill), following first the report by Lord Banner KC and subsequent consultation that I summarised in my 28 October 2024 blog post Banner Review Into Legal Challenges of NSIPs (NB there really are other barristers out there I feel sure, I’m not being sponsored or anything). Lord Banner had recommended that there may be a case for raising the permission threshold for judicial review claims challenging DCOs (“There is much to be said for raising the threshold for permission to apply for judicial review of DCOs, to the heightened Mass Energy threshold, so that only those claims likely to succeed are allowed to proceed to a substantive hearing. There is no right, either under UK constitutional principles or international law, for an arguable but weak or mediocre claim to proceed to a full hearing rather than being weeded out beforehand)”, but the government was not inclined to accept this; perhaps the courts are beginning to get there of their own volition in relation to challenges of nationally significant projects? (Although what is the risk that a claim such as that in Finch is prematurely ruled out?). The big question is of course: if these measures are appropriate for challenges to nationally strategic infrastructure projects, why should they not be introduced in relation to planning-related challenges more generally?

To my mind, it is good to see the tough line taken by Saini J on promptness. Given the six weeks’ deadline for planning-related judicial review cases, why is there even still the traditional “prompt but in any event within three months” test, which can be so uncertain in its practical application? I’m currently dealing with a case, in relation to a proposed commercial development, where the claimant (a public authority) filed a day out of time, the challenge delaying significantly a development project, resulting in, according to my client’s evidence, several million pounds of lost rental income. The court has taken over three months before finally allowing the claim to be filed out of time. What sort of signal does this send? Is there some sort of institutional bias towards large infrastructure developments?

And on the question of court delays, is anyone else experiencing unusually long delays before securing decisions at the permission stage on the papers? I have one case where we filed on 6 May. Still… nothing.

Getting the balance right in relation to sieving out unmeritorious judicial review cases is so important given the implications not just for the project under challenge but in terms of giving reassurance to all those operating in the planning system that every document does not need to be “gold plated” as an insurance against even unmeritorious challenge. The fear of a claim for judicial review (successful or otherwise) is skewing every stage of the system!

Finally,  as a result of an amendment to the Planning and Infrastructure Bill tabled by a conservative peer, also a working planning KC (*checks notes* him again!!), the government is put forward its own amendment which will build on the current provisions in the Town and Country Planning Act 1990 which allow for an extension of the time for implementing a planning permission which has been challenged by way of judicial review. At present, under section 91 (3), if proceedings are brought to challenge the validity of a planning permission, the deadline for implementation is extended by one year.  The amendment will extend the deadline by a further year if the proceedings have permission to go to the Court of Appeal and by two years if they have permission to go to the Supreme Court. In the case of outline planning permissions, reserved matters submissions will be extended by equivalent periods.

All good and necessary but any steps to speed up judicial proceedings, and to sieve out doomed claims as at early as stage as possible, would of course be more likely to address the root problem.

Simon Ricketts, 24 October 2025

Personal views, et cetera

Hillside: Every Journey Starts With The First Step

Various people have asked me what I made of the amendment to the Planning and Infrastructure Bill that Lord Charlie Banner KC sought to introduce last month, seeking to lance the large boil that is Hillside (and if that word means nothing (1) lucky you, read no further, or (2) please read my 2 November 2022 blog post Running Down That Hillside).

The truth is that for a long time I couldn’t really face getting back into the subject, having failed to get traction for expansion of what became section 73B when the Levelling-up and Regeneration Act Bill was passing through its Parliamentary stages, and, before that, having sat behind Charlie at the Hillside Supreme Court hearing. The problem is real, but arriving at a workable solution is hard.

The amendment was as follows:

Huge credit to Charlie because, if nothing else, his amendment has put the issue back on the table with MHCLG. Baroness Taylor’s response in the debate on 11 September 2025 (see columns 1736 to 1741), contained the following passages:

“The Government recognise that the Hillside judgment and subsequent court decisions have caused concerns across the development sector, and the noble Lord was kind enough to send me some of the articles that have been written since, setting out which problems they are causing. It has made it more challenging to use the practice of drop-in permissions to deal with changes in development proposals for plots on large-scale residential and commercial development in response to changing circumstances.”

“We want to ensure that large-scale developments, where they need to change, can secure the necessary consents to deal with these changes effectively and proportionately. Unfortunately, we are not persuaded that Amendment 169 is the solution to Hillside for overlapping planning permissions. It is too broad in scope, and we must be absolutely sure that it would not undermine the integrity of the planning system. The long-standing principle that Hillside endorsed—that it is unlawful to carry out a development when another permission makes it physically impossible to carry it out—is a sound one. Decisions are made on the merits of the entire development proposal, and this amendment would allow developers to pick and choose what parts of an approved development they wanted to implement when they had a choice.

Similarly, we need to consider carefully the implications of legislating to deal with overlapping planning permissions and development consent orders in general terms. […]

“We want to ensure that there is sufficient flexibility to deal with change to large-scale developments. Clause 11 already provides a framework for a more streamlined and proportionate process to change development consent orders, but we also want to look at how the framework can be improved for planning permissions. We would welcome further discussions with your Lordships and the wider sector on this matter.”

All this stuff about considering carefully and further discussions is all well and good but perhaps the next step now should be to keep a number of planners and planning lawyers in a locked room until they have arrived at a refined version of the proposal which is watertight, legally and in public policy terms? What situations are people actually worried may arise? How can those outcomes be designed out?

I don’t want to be locked in the room but to start the discussion…

I think we need a bit of clarity as to how an authority actually states in the later permission or in a section 106 agreement that the lawfulness of past and future development carried out pursuant to one of those planning permissions shall be affected. This wouldn’t really appropriately be done by way of a planning condition. Nor would it be part of the operative part of the permission. A statement of the legal effect of implementation of the permission on another permission or permissions sounds more like a role for an informative (although to have such a declaration with legal effect within an informative would be unprecedented and something for subsequent purchasers’ solicitors to root around for in acquisition due diligence processes) but what are the guardrails, for instance:

(1) Surely the local planning authority shouldn’t by this route be able to affect the lawfulness of past development (the Supreme Court in Hillside ruled out any potential effect on the lawfulness of development which has already happened)?

(2) Surely a statement as to the lawfulness of future development to be carried out under an existing permission should only be possible where otherwise Hillside could cause a problem ie where there would potentially be materially inconsistent development? Otherwise this could end up being potentially more constraining, dependent on the attitude of the relevant local planning authority.

(3) How can the rights of a landowner with the benefit of at least part of the existing planning permission be protected rather than find out after the event that another party has secured a permission with a statement that (potentially without justification) affects that landowner’s ability to continue to rely on that earlier permission?

(4) What is to prevent the outcome being a planning permission which allows plainly inconsistent planning permissions to be built out free even of the traditional Pilkington constraints?

These are the sorts of real-world issues the final version of any legislative provision would need to cover off. The drafting will be gnarly…

Secondly, we need to think about what procedural mechanisms would need to be put in place. For instance:

  • Should the planning application form include a question asking if within the planning application red line area there are any planning permissions on which the applicant still wishes to rely alongside implementation of any planning permission granted pursuant to this application, warning that if this question is not answered correctly, the consequence of implementing the planning permission sought may be that previously granted planning permissions may no longer be able to relied upon?
  • Should Planning Practice Guidance direct a local planning authority, in determining an application for planning permission, specifically to consider in a section of its relevant officer’s report whether there are any existing planning permissions, which relate to some or all of the land the subject of this planning application, and if so whether or not it would be appropriate in planning terms for further development to be carried out under each of those permissions should this application be approved and implemented? And might digital planning, possibly even the Extract tool, make this less of a paperchase than traditionally it certainly would be?

It’s good that people are thinking about all this again. But it is darned hard! Mountain not hill.

Simon Ricketts, 3 October 2025

Personal views, et cetera

Picking Up The Bill: What Are We Now Thinking About Part 3?

As in the Planning and Infrastructure Bill. And as in how much is the bill and who pays it?

There has been much noise over Part 3 of the Planning and Infrastructure Bill (“development and nature recovery”) since the Bill was introduced into Parliament on 11 March 2025. For what it’s worth (maybe not a lot), I’ve been trying to work out what I think.

If you would like a summary of Part 3 as introduced, please see colleague Susie Herbert’s 13 March 2025 guest blog post PI Bill Guest Post – Some Early Thoughts On The Bill’s Nature Recovery Provisions. I then summarised some of the criticism of Part 3 in my 11 May 2025 blog post, Nature Recovery Position.

On the day that the Lords Committee stage started, 17 July 2025, the Government tabled a series of amendments to Part 3, seeking to strengthen it – see Summary: Planning and Infrastructure Bill, Government Amendments to Part 3 (Lords Committee Stage) (17 July 2025) and the amendments themselves tabled for Committee on 17 September (those tabled by Baroness Taylor relating to clauses 55 to 85).

The amendments had followed discussions with conservation groups and environmental bodies (see e.g. UK government putting pressure on nature groups to drop opposition to planning bill (16 July 2025)). The Office for Environmental Protection welcomed the proposed amendments in a statement  published that same day, 17 July 2025:

“The Office for Environmental Protection (OEP) has written to government to welcome its proposed changes to the Planning and Infrastructure Bill. 

In advice to government on the Bill in May, the OEP identified a number of areas where it advised environmental protections should be strengthened, while recognising the government’s intent to secure ‘win-win’ outcomes for development and for nature. 

Government has now published details of a series of proposed amendments to the Bill. 

OEP Chair Dame Glenys Stacey said: “The government’s amendments go a long way towards addressing the issues we raised in our advice. 

“I have written to Matthew Pennycook, Minister for Housing and Planning, to acknowledge the significant extent to which government has taken positive steps in response to our advice. 

“The Bill sets out government’s intention to strike a different balance between risk and opportunity for nature protection and for development. 

“While it is our view that, even after the material amendments the government proposes, the Bill would, in some respects, lower environmental protection on the face of the law, we think that, in the round, the additional safeguards proposed today make government’s intended “win-win” for nature and the economy a more likely prospect.

“Should the Bill receive Royal Assent, the practical implementation of the new measures will be key. We will continue to watch closely and to scrutinise how this significant change in environmental law is implemented.” 

That may be said to be a rather limp thumbs-up, but it is certainly a thumbs-up. Given that the Environment Act 2021 gave the OEP the principal objective, in exercising its functions, of contributing to environmental protection and the improvement of the natural environment, and given that its role includes giving advice as to proposed changes in environmental law, and given that the OEP will, I have no doubt, scrutinise implementation every step of the way, one might take some comfort from that position.

However, the amendments haven’t completely quelled concerns. For example, see the statement by CIEEM (i.e. the Chartered Institute of Ecology and Environmental Management) published on 18 July 2025:

“We believe that the Government’s proposed amendments still fall short. They fail to guarantee the vital safeguards nature needs, fail to preserve hard-won protections for species and habitats, and overall, still represent a step backwards for environmental standards in England.  And let us not forget that these environmental standards deliver significant economic, health and wellbeing benefits for us all. This battle has not just been about protecting nature for nature’s sake, but also protecting the vital benefits and services that nature provides.

While the proposed improvements to Environmental Delivery Plans (EDPs) are a step in the right direction, major flaws do remain.

Most notable is the glaring absence of the mitigation hierarchy – a cornerstone of current environmental protections. Without it – and the imperative to avoid adverse impacts on biodiversity from occurring in the first place – the Bill opens the door to the devastation of some of our most important natural sites and species. And whilst we note the Ministerial Statement recognises the use of the mitigation hierarchy in EDP development, such Statements are too easily reversed and do not have the strength of primary legislation.

Equally important, is the need for EDPs to guarantee that environmental compensation and enhancement happen before any damage is done – so as to avoid a dangerous nature deficit and to protect vulnerable species from local extinctions.”

One of the Part 3’s most vocal critics is solicitor Alexa Culver, legal counsel at RSK Wilding, a company which uses “habitat restoration as a means of offsetting clients’ biodiversity and carbon impacts while concurrently generating other environmental and social benefits”. Alexa certainly knows her stuff and posted on LinkedIn on 18 July 2025 her “Legal Analysis of Government’s Proposed Concessions to Part 3 of the Planning and Infrastructure Bill”. It is worth a read but in summary her concerns assert the lack of “any legally meaningful protections for habitats and species, or our environment”;  that Part 3 would “override any requirement for a “mitigation hierarchy”; that “irreplaceable habitats remain unprotected”, that there “remains no legal liability on any party to deliver compensation measures under an EDP”, creating “unacceptable risks for developers, who may see planning permissions refused because EDPs are failing”, and that in the case of a failing EDP “remedial action may not take place until 10 years after unmitigated harms to nature have occurred”.

The Chancellor possibly didn’t calm the debate by then positing the issue as people in housing need versus snails; Rachel Reeves defends retreat over planning bill as tactical move to speed up reforms (FT, 22 July 2025):

“Chancellor Rachel Reeves has claimed the UK government made a tactical retreat over its flagship planning bill in an attempt to speed it on to the statute book.

Ministers have been accused of watering down provisions in the bill, but Reeves on Tuesday said she hoped that the concessions would help “shave off a couple of months” of parliamentary wrangling in the House of Lords.

“I care more about the young family getting on the housing ladder than I do about protecting some snails,” she told an end-of-term hearing of the Lords economic affairs committee.”

The Lords Committee stage hasn’t yet reached Part 3; this will not be until September.

It’s interesting and, I would say positive, that the OEP posits that the “the additional safeguards proposed … make government’s intended “win-win” for nature and the economy a more likely prospect.” The truth is surely that without these measures we just carry on in a lose-lose position? We’re not really protecting or improving the environment; we’re not building homes.

Bear with me:

First of all, what is the issue which I think that the government is trying to solve by way of Part 3, or at least what I think Part 3 should be focusing on?

There is a lot of abstract talk, but surely at the heart of it all is the specific “appropriate assessment” test in regulation 63 of the Conservation of Habitats and Species Regulations 2017: basically prohibiting an authority from approving “a plan or project that is likely to have a significant effect (either alone or in combination with other plans or projects)” on a European site or a European offshore marine site (i.e. basically a special area of conservation or special protection area) unless it has “ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).”  The only exception is almost impossible to meet – if the authority:

“is satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature), it may agree to the plan or project notwithstanding a negative assessment of the implications for the European site or the European offshore marine site (as the case may be).

(2) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (1) must be either—

  1. reasons relating to human health, public safety or beneficial consequences of primary importance to the environment; or
  1. any other reasons which the competent authority, having due regard to the opinion of the appropriate authority, considers to be imperative reasons of overriding public interest.”

So (1) we have a test which, unusually, is substantive rather than just procedural – there is no such “pass/fail” test in relation to anything to do with, say, approving projects which may endanger human health or the most precious and unique of heritage assets.

(2) We have a test which has come to be interpreted extremely strictly by way of European and domestic case law – see e.g. the 2018 CJEU Dutch nitrates deposition cases (concerning authorisations for schemes for schemes for agricultural activities in sites protected by the Habitats Directive and where nitrogen deposition levels already exceeded the critical load) and all that has followed.  

(3) Largely due to systematic under-investment and mismanagement by successive governments in relation to the regulation of the water industry, of farming processes and of the use of fossil fuels, the ecological integrity of various special areas of conservation and special protection areas is already at or beyond tipping point, leading to the various de facto recommended vetoes on development by way of advice from English Nature: nutrient neutrality requirements in some areas, water neutrality requirements in others (NB the Chancellor’s “homes vs snails” comment is directly relevant to the north Sussex situation), restrictions on additional traffic generating development due to issues of nitrogen deposition in others and in yet others restrictions on homes due to the risk of additional recreational pressure on specific protected sites.

(4) Due to organisational inertia and possibly the lack of prioritised resources, authorities, often working with Natural England and/or the Environment Agency and other bodies, have been slow (at best – sometimes AWOL) in arriving at strategic schemes to mitigate or avoid adverse effects, meaning these vetoes on house building  as well as, often, other forms of development, stay in place for years, with only the largest of individual projects able to arrive at a site-specific means of passing the “appropriate assessment” test, often with a consequent hit to viability affecting for instance the level of affordable housing that can be provided. Maybe – local politics – it even suits some local authorities to have those vetoes remaining in place?

I have written about this repeatedly. Stuck record.

29 June 2019 Another Green World: The South Coast Nitrate Crisis

9 October 2021 Development Embargos: Nitrate, Phosphate & Now Water

18 March 2022 New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper)  

26 March 2022 More On That Natural England Advice

16 July 2022 Neutrality

All this time, a lose-lose.

The previous government snatched at a solution to the nutrients issue, which I described in my 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment – which envisaged simply excluding from the “appropriate assessment” test any “potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors.” This was so much more radical – and environmentally regressive – than anything proposed within Part 3 of the current Bill. Of course, it was decisively defeated in the Lords – see my 16 September 2023 blog post NN No.

We do need a solution! The Conservatives’ solution was never going to work. To the extent that Part 3 would enable the Secretary of State to give Natural England the role of coming up with tested plans, with strategic solutions to secure the recovery of special areas of conservation and special protection areas and to arrive at mechanisms for securing contributions from developers towards those measures – allowing individual developers having diffuse off-site impacts of the ecological condition of those sites to know that the “appropriate assessment” test is not for them to address (unless they want to embark on a site-specific solution) and that they can simply pay their way – I am supportive of Part 3. As OEP concludes, a win-win.

My concerns are probably coming from a different place to some of the opponents to Part 3:

  • I have deep scepticism as to how quickly or pragmatically these plans will in fact be delivered by Natural England, without a significant ramping-up of the organisation’s capacity and capability. And notwithstanding environmental campaigners’ concerns that Natural England will in some way, without specific legal duties, be soft as to what they require, the reality is surely that, far from for instance not applying the mitigation hierarchy or allowing irreplaceable habitats to be harmed, there is surely as much of a risk that they will “gold plate” what is required.
  • Is the Government being too ambitious in its framing of Part 3 as enabling EDPs not just to address these specific “diffuse off-site impacts” situations I have focused on in this post, but enabling them to address the ecological value of the particular development site itself, reducing the amount of on-site assessment required? For myself, I do still wonder whether this goes too far and whether, in any event, this will not in practice be the focus of initial EDPs.

Agree or disagree? Planning lawyer blog writers are certainly not a species with any form of protection so please do your worst.

Simon Ricketts, 3 August 2025

Personal views, et cetera

Nature Recovery Position

Part 3 of the Planning and Infrastructure Bill is possibly facing the most criticism. Do its provisions with regard to the preparation of environmental delivery plans, enabling a nature restoration levy to be set which is to be paid by developers in lieu of some of the site-specific assessment and mitigation measures they currently have to carry out, go too far and amount to a regression in environmental protection?  

First, as a way into the issues, I do recommend my colleague Susannah Herbert’s summary and initial critique of the provisions published the week that the Bill was introduced into Parliament:  PI Bill Guest Post – Some Early Thoughts On The Bill’s Nature Recovery Provisions (13 March 2025)

The government has published a fact sheet.  It summarises the five key phases of the nature recovery fund as follows:

  1. Framing the EDP – EDPs will define the environmental impacts they cover, such as nutrient pollution or the impact development might have on a protected species. EDPs will be spatially specific with clear maps setting out where development is covered by an EDP and what scale of development the EDP can support.
  2. Designing the measures – EDPs will set out the suite of conservation measures that will be deployed to more than address the impact of development across a given area. For example, an EDP covering nutrient pollution will set out how the combined effect of the conservation measures will go beyond the current expectations of nutrient neutrality and lead to an improvement in water quality.
  3. Setting the levy rate – A simple charging schedule, sufficient to cover the costs of the conservation measures, will be payable by developers to meet the relevant legal obligation associated with the impacts addressed by the EDP.
  4. Consultation and approval – in developing an EDP, Natural England will benefit from views captured through consultation before the EDP is submitted to the Secretary of State for approval. When considering the EDP, the Secretary of State will be bound by a new legal test to ensure that the conservation measures outweigh the negative effect of development.
  5. Delivering on the EDP – once the EDP is in place, Natural England will the necessary powers to use funds collected to implement the conservation measures. They will then monitor the impact of the measures to ensure they are working as expected and make any amendments to the EDP that may be necessary.

The Bill is currently at Committee stage. Marian Spain, chief executive of Natural England, gave evidence on 24 April 2025, supportive of the proposals in the Bill. However, there are many who are expressing concern.

Instructed by NatureSpace Partnership, which delivers strategic licensing in relation to great crested newts and other species, David Elvin KC has provided a masterly and detailed (45 page) opinion dated 23 April 2025. He concludes that the proposals as they currently stand would amount to a weakening or reduction in current levels of environmental protection: the proposed test of “overall improvement” in environmental protection is “lax” and “generalised”.

The Office for Environmental Protection’s advice to the government on the Bill  (2 May 2025) echoes this concern: The OEP is “concerned by several aspects of the bill which undermine its potential to deliver intended win-win outcomes. We recognise that the EDP system is intended to be a different approach, not a direct comparator to existing environmental law. There are, though, fewer protections for nature written into the bill than there are under that existing law. Creating new flexibility without sufficient legal safeguards could see environmental outcomes lessened over time. And aiming to improve environmental outcomes overall, whilst laudable, is not the same as maintaining in law high levels of protection for specific habitats and species.

In our considered view, the bill would have the effect of reducing the level of environmental protection provided for by existing environmental law. As drafted, the provisions are a regression. This is particularly so for England’s most important wildlife – those habitats and species protected under the Habitats Regulations.

We summarise two particular concerns below, and provide further detail on these matters and other aspects of the bill in the annex to this letter.

A principal area of concern lies with the framing of the bill’s ‘overall improvement test’ for adopting EDPs. This test rests on a balancing exercise to decide whether negative environmental effects of development are likely to be outweighed by conservation measures taken under an EDP. As drafted at the moment, that exercise would allow considerably more subjectivity and uncertainty in decision-making than under existing environmental law. We advise that the overall improvement test should be strengthened to address this.

The bill as drafted also allows for conservation measures to be located away from the protected sites affected by development. Currently, this is only permissible in limited circumstances and where the overall coherence of the protected site network is maintained. Such safeguards are absent from the bill. Undermining the network of protected sites could affect the Government’s ability to meet its legally binding biodiversity targets and ‘30 by 30’ objectives. We advise that the lack of safeguards for the overall sites network is rectified, given the role they play in efforts to meet statutory nature targets.”

The OEP sets out, in an Annex to the letter, various detailed recommended changes to what is proposed.

More recently, the government has now published its impact assessment  in relation to the Bill (6 May 2025).  Section 7.2 is relevant for our purposes (NPSV = “Net Present Social Value (NPSV) in 2025 prices with 2026 base year across the 10-year appraisal period 2026-35”), EANDCB = “Equivalent Annual Net Direct Cost to Business” and EANDCH = “Equivalent Annual Net Direct Cost to Households”):

Incidentally, some groups and media pieces (eg UK government admits almost no evidence nature protections block development (The Guardian, 7 May 2025)) have misconstrued that reference to “limited data availability”. I agree that the statement is somewhat of a cop-out (and the range given absurdly wide) but the footnote makes it clear that the figure is expected to be a significant underestimate. For the real effects arising from nutrient neutrality alone see eg the work by the HBF and as for water neutrality see the recent failure at examination for instance of the Horsham local plan and many individual stalled schemes.

Is there a middle ground here? Should EDPs and the nature restoration funds, rather than ambitiously seeking to remove the need for developers to assess and address the specific effects likely to arise as a consequence of the species and habitats on their development sites themselves, in fact focus on those off-site issues which have indeed been causing so much delay and uncertainty: nutrient neutrality, water neutrality and issues relating to recreational pressure?  After all it is these aspects which the impact assessment focuses on:

“The Nature Restoration Fund is expected to deliver benefits to areas where particular environmental obligations apply, for example, nutrient neutrality catchment areas. While some urban areas are in nutrient neutrality catchments (Southampton, Portsmouth, Norwich and Middlesborough), the majority of land area covered by nutrient neutrality catchments is rural. In some cases entire LPA areas are within nutrient neutrality catchments, where obligations limit ability to deliver those LPAs’ housing targets. The largest nutrient neutrality catchments (by hectare) are Solent, River Eden Special Area of Conservation (SAC), Somerset Levels & Moors Ramsar. The location of the interventions secured under the NRF will be determined by the scale of the delivery plan area.” (Paragraph 69)

I can see that in some circumstances nature recovery objectives can be secured more efficiently and effectively on a coordinated basis. The impact assessment says this:

“…the Nature Restoration Fund measures aim to improve environmental outcomes by requiring developers to contribute towards nature recovery. By shifting to a strategic approach to addressing environmental obligations, coordinated by a single delivery body, action will be more efficient and effective – achieving more with the same cost to developers. It is therefore expected that these measures will contribute to meeting the Government’s wider environmental targets and help secure the benefits derived from biodiversity and ecosystem services more effectively. For example: wetlands can effectively regulate flow of water which enhances resilience to flooding; forests, oceans and healthy soils sequester carbon, reducing greenhouse gases in the atmosphere; peatlands act as carbon stores; restored vegetation stabilises soils reducing erosion and improving water quality; and natural landscapes offer spaces for outdoor recreational activities like hiking and birdwatching. These activities promote physical and mental well-being and provide benefits through tourism-related revenue. This policy is also designed to speed up the delivery of net zero infrastructure (alongside other development), and in doing so support decarbonisation.” (paragraph 77)

But should any of this replace on-site assessment and on-site mitigation, save where it can be shown that off-site mitigation will in fact be as effective? And wouldn’t this also be fairer, rather than, presumably, some developers having to over-pay to compensate for others seeking to develop more ecologically sensitive sites?

Simon Ricketts, 11 May 2025

Personal views, et cetera

PI Bill Guest Post – Some Early Thoughts On The Bill’s Nature Recovery Provisions

I’m away this week of all weeks but I thought I would share my Town Legal colleague Susannah Herbert’s early thoughts on Part 3 (development and nature recovery) of this week’s Planning and Infrastructure Bill. This is not intended as a full summary – there are plenty of those already.

Part 3 of the Bill sets out provisions to provide for the strategic approach to addressing environmental impacts along the lines set out in the Development and Nature Recovery Planning Reform Working Paper published in December 2024.  This relates to protected sites and protected species under the Habitats Regulations, the Wildlife and Countryside Act 1981 and the Protection of Badgers Act 1992 so it will not affect areas or species not covered by this legislation or other EIA requirements.  It applies to “development” as defined in section 55 of the TCPA 1990 and also development within the meaning of the Planning Act 2008 (section 32) and listed building consent under section 8 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

The principle is that Natural England is to put in place Environmental Delivery Plans (“EDPs”) which set out “conservation measures” to address certain identified “environmental impacts” of development on “environmental features” within a specified area and developers within that area then pay a “nature restoration levy” to fund the implementation of the EDP instead of having to carry out appropriate assessment or obtain protected species licences on a site by site basis. 

The government believes that facilitating a more strategic approach to the discharge of environmental obligations will result in improved environmental outcomes being delivered more efficiently and reduce delays to development caused by lack of mitigation for example in respect of nutrient neutrality. 

Much of the detail about the payment of the levy is to be contained in “nature restoration levy regulations” which would set out details concerning liability, matters that Natural England must have regard to in setting the amount of the levy, appeals in respect of the levy, use of the levy, collection, enforcement and compensation (for loss resulting from enforcement action).   The government may also give guidance to Natural England about any matter connected with the levy.

The implications of these provisions are potentially extremely significant for both developers/ landowners and for nature recovery and whether the impact will be positive or negative will depend very much on the implementation and scope of the EDPs.  The win-win scenario of improved environmental outcomes with lower cost and delay for developers may be achieved if strategic mitigation is effectively identified and implemented and the levy charged to developers is more cost effective than it would be to provide the mitigation on-site.  However, it is also possible that the levy will need to be set at an unviable level, that the conservation measures are not effectively implemented at the same time as removing protections from protected species and habitats and that the loss of flexibility for developers has unintended consequences for viability and deliverability.

The Explanatory Notes include an example of how the proposals are intended to work based on nutrient pollution from residential development in a river catchment affecting a protected water course.  Part of an EDP may be the imposition of a condition on a planning permission which in the example could be that all houses include septic tanks.  The EDP would then provide for conservation measures such as the building of a wetland to be funded by the tariff.  The impact would be monitored and an extension to the wetland may be delivered if the main measures are not sufficient.  The payment of the levy would remove the requirement for an appropriate assessment to be carried out for the specific development.

However, many questions and potential issues remain. 

Cl. 61(4) allows for EDPs to be mandatory in a specified area (although this has to be justified).  This would remove the choice from developers to provide on-site mitigation even if this were preferable in nature recovery terms and more viable for the particular site. 

The charging schedule for the levy will be set for each EDP and for each kind of development to which the EDP applies.  Natural England must have regard, to the extent and in the manner specified by nature restoration levy regulations, to the actual and expected costs of the conservation measures proposed; matters specified in the regulations relating to the economic viability of development; and other actual or expected sources of funding for those conservation measures.  The regulations may permit charging schedules to operate by reference to descriptions of purposes of development; any measurement of the amount or nature of development; the nature or existing use of the site; inflation; by reference to values used for other statutory purposes ; or may allow for differential rates including provision for supplementary charges, a nil rate, increased rates or reductions. 

None of these matters are directly linked to the actual impacts of a particular development.  This may be appropriate where the relevant impact can be sufficiently and fairly estimated on the basis of e.g. the quantum and type of development taking into account the existing use of the land such as the example of residential nutrient pollution given.  However, in other cases such as in respect of protected species, the result may be that a development has to pay the levy to mitigate an impact on a species which was not present on the site in the first place or which would not be impacted by the development because of the design of the development.  It may be that the intention is that surveys are carried out as part of bringing forward the EDP to establish which parcels of land it should apply to but this would potentially result in unnecessary work if surveys have to be carried out over a whole area compared to surveying only those sites where development is proposed.  It is also not clear if the surveys would be kept up to date.  The Secretary of State may make further regulations regarding requirements for Natural England when preparing an EDP which may address some of these questions.

The strategic nature of the mitigation proposed to be provided begs another set of questions.  If a certain number of developments are required to contribute to fund the strategic mitigation, how will the sequencing work?  Will the impacts of the first developments remain unmitigated until sufficient development comes forward to fund the strategic mitigation (in which case how much damage will be done to protected species or habitats in the meantime)? or will the conservation measures be funded by the Government in anticipation of development (which may not materialise and therefore may end up being an unnecessary cost to the public finances)?  Both of these approaches are possible under cl. 66(4)  which allows for expenditure already incurred to be reimbursed and for money to be reserved for future expenditure.

The regulations may also make provision about payment in forms other than money (such as making land available, carrying out works or providing services) (cl 67(6)) which may allow part of the cost of the levy to be offset by on-site mitigation or potentially providing additional mitigation and somehow receiving credit for this although there is no clear mechanism for this to operate.

It should also be noted that Natural England would be given the power to compulsorily acquire land for purposes connected with the taking of a conservation measure (cl. 72).

Public authorities would be required to co-operate with Natural England in connection with the preparation or implementation of an EDP (cl. 75).  Natural England must publish a report for each financial year on the exercise of its functions in respect of these provisions (cl. 73) and the Secretary of State may also designate another person to exercise the functions of Natural England (cl. 74).

The Bill (cl 53- 60) sets out the process for preparation of an EDP, statutory consultation, making of the EDP by the Secretary of State based on an “overall improvement test”, publication, reporting, amendment, revocation and challenge.  There would therefore be opportunities for developers to make representations concerning a proposed plan possibly arguing that a particular allocated site should be excluded if on-site mitigation is proposed or presenting evidence as to viability in respect of the proposed levy.  There is also the potential to challenge a plan by way of judicial review which could potentially introduce a whole new set of delays to development.

Thanks for that Susie. This is now me again in this paragraph. Plenty more to cover both on this subject and the PI Bill itself. Aside from not having read the whole Bill itself yet (I know I know), I also haven’t read the Life of Pi by Yann Martel. I’m told by google that “its main message is that life can and will be difficult. However, people must persevere by any means necessary. Being adaptive and having faith in yourself and a higher power can help a person achieve any obstacle in their path.” How true. As in life so in planning and infrastructure.

Simon Ricketts, 13 March 2025

Personal views, et cetera

And Now Take A Deep Breath…

Can I share with you that there have been times this year when the pace of announcements in terms of changes to the planning system, when taken with some significant case law to digest, has led me to wonder how I am meant to keep up?

Even in the last month, no sooner than the new National Planning Policy Framework and associated announcements (see my 14 December 2024 blog post I Love It When A National Planning Policy Framework Comes Together) was published, there were pre-Christmas sucker punches in the form of:

I’m not complaining; change is needed. However, now is not the time for deep dives into either topic, other than to say this:

  • The English Devolution white paper is necessary, if complex, reading. Aside from heralding significant local government reorganisation and devolution of power to sub-national levels, for us the most key paragraph 3.5, housing and strategic planning, which concludes with this summary of what is proposed:

 “Box A: Universal system of strategic planning

The government has been clear that it will implement a universal system of strategic planning within the next five years. The model that is proposed is the Spatial Development Strategy (SDS), which is well established in London, the London Plan having been produced and continually reviewed over 20 years.  As set out at 3.5, where Strategic Authorities exist, they will be responsible for producing or agreeing the SDS for their areas.

While it is our ambition for every area of England to be covered by a Strategic Authority, this will be a gradual process. We want to move quickly on strategic planning. This means that where no Strategic Authority is in place or is planned to be in place, the government will take a power through the forthcoming Planning and Infrastructure Bill to direct defined groupings of upper-tier county councils, unitary councils, and in some cases Foundation Strategic Authorities to deliver an SDS. Given the intention to have all SDSs produced by Strategic Authorities in due course, the government believes it makes sense in the first instance for these groupings of local authorities to be guided by the sensible geography criteria that have been set out for agreeing new devolution deals (see 2.2.1). The arrangements for agreeing a SDS in areas without a Strategic Authority will follow the same principles as Foundation Strategic Authorities.

In all areas, SDSs will guide development for the Local Planning Authorities in the area, and their local plans will need to be in general conformity with the SDS. However, Local Planning Authorities should not delay development of Local Plans while they await the adoption of an SDS. Relevant Local Plans should continue to be updated or developed alongside the SDS process.

Areas will be able to set a SDS to enable their area to grow, identify the infrastructure that is needed and strategic locations for development. This will include an obligation to apportion an assessment of the housing need of the Strategic Authority across its constituent members. The government intends for that assessment to be the cumulative total of the local housing need of each constituent member, as determined by the Standard Method set out in national planning policy. The apportioned figure set for each constituent member in the SDS will then be the minimum housing requirement for the purposes of each member authority’s next Local Plan. Agreement on the precise distribution of housing need will be agreed through the SDS development process. We also expect that the authorities producing SDSs will be able to encourage the pooling of resources and prioritising of efforts across their constituent authorities to meet housing need.

The content of SDSs will be kept deliberately high level with the dual purpose of preserving detailed policy and site allocations for local planning authorities through their local plans, and for enabling strategic plans to be produced quickly, with the intention of achieving national coverage by the end of this Parliament. The government expects high levels of collaboration to be demonstrated between the Strategic or upper-tier local authorities who are responsible for the SDSs and local planning authorities in the area. There will be a formal duty for responsible authorities to consult district councils on the development of the SDS and a route for district councils to raise concerns with the planning inspectorate.

Across all areas, these arrangements will encourage partnership working and we envisage that there will be genuine opportunities for efficiencies by sharing research, evidence and expertise that can support both the SDS and Local Plans. However, the government is determined to ensure that, whatever the circumstances, SDSs can be concluded and adopted in a reasonable time period. In order to ensure universal coverage of strategic plans, we will legislate for intervention powers, which will enable the government to intervene where plans are not forthcoming to the timeframe. These will include directing on timetables or particular policy content such as the distribution of housing need, through to taking over the preparation of an SDS and adopting it on behalf of strategic planning authorities.”

The intention of achieving national coverage by the end of this Parliament”! The necessary legislative changes will be introduced in part via the forthcoming Planning and Infrastructure Bill and partly through the forthcoming English Devolution Bill. I’m pleased to be part of the strategic planning working group chaired by Catriona Riddell and founded by Prior + Partners which is looking to help lay the groundwork to ensure that strategic planning can work effectively. Three half days sessions have been held so far, with two to follow in January.

But there will be plenty more to explore in the white paper beyond the introduction of strategic development strategies. For instance, once the relevant strategic development strategy is in place, Mayoral Strategic Authorities will have equivalent development management powers as the London Mayor, enabling them to intervene with applications of potential strategic importance and will have the power to raise a Mayoral Community Infrastructure Levy to support the delivery of strategic infrastructure projects.

There are other nuggets hidden away in the text, for instance the proposed replacement of the community “right to bid” for assets of community value by a strengthened “right to buy”.

  • As for the Government’s compulsory purchase compensation proposals, the big news is of course the potential widening of the scope for “no hope value” CPOs, to include acquisitions of “brownfield land in built-up areas, suitable for housing delivery, but with no extant planning permission for residential development” and “land allocated for residential development in an adopted plan but which has not come forward for development.” I speculated as to what might be proposed, and as to the potential implications, in my 21 July 2024 blog post, Hope/No Hope. Although you may prefer just to try my Spotify playlist, A Deep Dive Into Land Value Capture.

Can I end on a more serious note? I started this post wondering how people are meant to keep up. I’ve also been wondering what the best role is for blogs like this. I started writing it for my own benefit – just to join the dots on what is happening week by week , as well as for amusement – I like writing! It’s brilliant that many of you regularly read what I do but I never meant to replace more reliable sources of CPD. Indeed just preparing summaries of documents is not what this blog is about. It hit me hard when I learned that EG (formerly the Estates Gazette) will be closing next year. Those are proper journalists. My gratitude goes out to all of those in the specialist press (particular shout-outs to Planning and the Planner) and also those in the sensible end of mainstream media who are all trained, and paid, to report and analyse on what is happening. I can only provide amateur snapshots. The day job – practising, rather than pontificating on, all this stuff – is always my bigger focus. This is a golden age for planning  and planning law blogs (I’m always in awe of eg Zack, Nicola, Sam Stafford, Philip Barnes, Paul Smith and others – oh no who have I offended by omission?) but we need to keep professional journalism alive too!

Related thought: this week there was a fascinating The Lawyer Podcast: Christmas Special — is someone you know a workaholic? Do listen – it is equally relevant for planners as lawyers! The evening I listened to it I was going to go back to my desk to read one of the documents I mentioned above but, taking in its message, I stopped and deliberately closed my eyes and listened to some music instead. Our professional area of interest is so intertwined with public policy, industry gossip etc that I find it difficult sometimes to work out whether what I am doing is work. Maybe LinkedIn needs that gambling industry warning: “When the Fun Stops, Stop”.

Now stop and have fun! Merry Christmas.

Simon Ricketts, 21 December 2024

I’m dreaming of a white cat Christmas…

Definitely Delegate Maybe

“Modernising planning committees” is one of the promised objectives of the Planning and Infrastructure Bill, likely to be introduced into Parliament this Autumn.

The Government has not yet provided any colour as to what modernisation means in this context but the general assumption is that it is likely to include moving to a national scheme of delegation, setting out which categories of planning applications should not be determined by planning committee but should instead be taken by planning officers by way of delegated powers.

Appropriate use of delegation is a good thing. Indeed, that is already reflected in the Government’s Planning Practice Guidance, unchanged for the last ten years:

“Who in a local planning authority makes a planning decision?

Section 101 of the Local Government Act 1972 allows the local planning authority to arrange for the discharge any of its functions by a committee, sub-committee, or an officer or by any other local authority. An exception where this power may not apply is where the local authority’s own application for development could give rise to a conflict of interest, when regulation 10 of the Town and Country Planning General Regulations 1992 applies.

The exercise of the power to delegate planning functions is generally a matter for individual local planning authorities, having regard to practical considerations including the need for efficient decision-taking and local transparency. It is in the public interest for the local planning authority to have effective delegation arrangements in place to ensure that decisions on planning applications that raise no significant planning issues are made quickly and that resources are appropriately concentrated on the applications of greatest significance to the local area.

Local planning authority delegation arrangements may include conditions or limitations as to the extent of the delegation, or the circumstances in which it may be exercised.

Paragraph: 015 Reference ID: 21b-015-20140306

Revision date: 06 03 2014”

The Local Government Association has published this piece which sets out examples of categories of applications included in individual authorities’ schemes of delegation as requiring determination by committee – together with a brief analysis of the advantages and disadvantages of including each category. As we know, almost every authority has a slightly different set of rules – and sometimes it takes some website burrowing (a particular curse upon every authority which does not a clear index to its constitution) to ascertain what they are…

However, despite what it may seem like to practitioners focused on larger applications, nearly all planning applications are of course already delegated to officers. This is a list of the authorities which last year delegated the lowest proportion of decisions to officers:

The councils that delegated the highest proportion of decisions to officers in 2023 (Planning Resource, 16 May 2024 – paywall)

The top twenty are all 98.5% plus!

And yet still there is the sense that even more applications could be determined by officers. For instance, the RTPI published this press statement on the day of the King’s Speech (17 July 2024):

“The Institute believes planning committees need modernisation and could include a national scheme of delegation, allowing planning officers to make some decisions themselves. Qualified planners should be able to implement agreed planning policy, freeing up councillors’ time to focus on the most challenging planning cases. This change would help to unblock many applications and speed up the planning process.”

Definitely, in a more perfect system, with clear policies in an up-to-date local plan, surely applications for planning permission which accorded with the local plan should be able to be approved by officers without reference to committee, and those not in accordance refused. Local democracy should be focused on the plan rather than its implementation.

The previous Government’s 2022 Planning For The Future white paper of course took this to the max, envisaging allocations which had the effect of granting the equivalent of outline planning permission and that thereafter “the delegation of detailed planning decisions to planning officers where the principle of development has been established, as detailed matters for consideration should be principally a matter for professional planning judgement”.

Maybe indeed, we should be heading in that direction (although it is all of course predicated on having that clear, up-to-date, plan!). Is legislation required to achieve greater delegation of decision making? I’m not sure. I shall be interested to see the “one size fits all” outcome. And as with any suggested legislative change, have we looked at whether behaviour can be changed without resorting to the law? By all means come up with a scheme of delegation template – but why not then include it immediately in Planning Practice Guidance and advise authorities that they adopt it? That could make a difference by as early as next year. Legislation won’t.

In the meantime, two of the many things which keep planning lawyers busy are (1) the behaviour at meetings of planning committee members and (2) the interpretation of local authority constitutions as to how committee meetings should be run. Two recent cases of interest:

R (Greenfields (IOW) Limited v Isle of Wight Council (HH Judge Karman KC, 23 August 2024)

Read about the agony of prolonged debate of a contentious application at a committee meeting, allegations of predetermination and bullying and a councillor changing their mind at the last moment…

R (Spitalfields Historic Building Trust) v London Borough of Tower Hamlets (Court of Appeal, 28 July 2024)

More agony, with successive planning committee meetings in relation to another contentious application and arguments as to which members could participate. The Court of Appeal (and before that the High Court) determined that was lawful for a local authority’s constitution to restrict voting by members on a deferred application for planning permission to those who had been present at the meeting(s) at which the application had previously been considered. However, the Supreme Court heard the subsequent appeal on 25 July 2024 and we await its final ruling.

Simon Ricketts, 31 August 2024

Personal views, et cetera