Category: Planning Inspectorate

Local Plans, LGR, Devolution: Goal Posts Moving On A Sloping Pitch For A Game Of Indeterminate Length With Shifting Rules & Teams

Am I wrong?

Let’s ease ourselves in gently…

Pragmatism, co-operation

I covered Matthew Pennycook’s 30 July 2024 letter to the Planning Inspectorate’s chief executive Paul Morrison in my 11 August 2024 blog post Plan-Making, Or, The Olympic Sport Of Trying To Hit A Slowly Moving Target, which announced a reversal of the previous Government’s “expectation that Inspectors should operate “pragmatically” during local plan examinations to allow deficient plans to be ‘fixed’ at examination. This has gone too far and has perversely led to years of delays to local plan examinations without a guarantee that the plans will ever be found sound, or that the local authorities will take the decisions necessary to get them over the line. This has to end.

[…]

Pragmatism should be used only where it is likely a plan is capable of being found sound with limited additional work to address soundness issues. Any pauses to undertake additional work should usually take no more than six months overall. Pragmatism should not be used to address fundamental issues with the soundness of a plan, which would be likely to require pausing or delaying the examination process for more than six months overall. Local authorities should provide regular progress updates of their work to the Planning Inspector during any agreed pause.”

Muscular stuff in that heady first month. Principles above pragmatism and the delays thereby arising, addressing the problem of submitted plans being allowed to limp on for years through long examinations, through authorities being given time by inspectors to try to fix soundness issues arising.  

But then, more recently, in his 9 October 2025 letter to Paul Morrison, pragmatism isn’t dead after all:

“In advance of the new plan-making system and mechanisms for cross-boundary cooperation coming into force, the final set of local plans being delivered within the current system remain essential to facilitating the effective delivery of housing, jobs and infrastructure. It is therefore critical that Inspectors approach examinations of current system plans with the appropriate degree of flexibility. The evidencing of expectations to establish whether the legal and soundness tests have been met – including with respect to the Duty to Cooperate – should be proportionate to the context in which plans in the existing system are being prepared. I very much welcome that in some cases Inspectors are already exercising a degree of flexibility to expedite adoption of local plans. For example, I note recent pragmatic decisions to proceed toward adoption in instances where a five-year housing land supply cannot be evidenced at the point of adoption but where the plan significantly boosts supply and still meets housing needs over the plan period or by providing additional opportunities to clarify compliance with the Duty to Cooperate. Relevant Planning Practice Guidance provides advice in respect of both of these matters, and will no doubt be of ongoing assistance in assessing whether proportionate evidence has been provided or considering whether stepped housing requirements may be justified.

It remains important that we do not see the adoption of poor-quality plans, or accept overly long examinations (I am grateful for the action that Inspectors have taken following my letter of 30 July 2024 in that regard). However, within those bounds, where plans are capable of being made adoptable, I want Inspectors to seek to do so in the examination process.”

It was unsurprising to see the pendulum swing back, because we aren’t ever really talking about, or dealing with, the planning system in isolation, are we? The three Ps in our world are planning, pragmatism and politics. Pragmatically, what is a plan-led system without … plans?

And p for pragmatism has been given extra oomph with the 27 November 2025 announcement that the forthcoming regulations that will specify how the new plan-making system is to work will (once made) immediately abolish the statutory duty to co-operate (i.e. affecting plan making under the current system as well). See the minister’s letter of that date to Paul Morrison :

“We intend to shortly lay regulations which will enable Local Planning Authorities (LPAs) to initiate formal preparation procedures for new-style plans. These Regulations will also have the effect of abolishing the Duty to Co-operate for the existing plan-making system.

As you know, the Duty to Co-operate (“the Duty”) was inserted into the Planning and Compulsory Purchase Act 2004, through the Localism Act 2011, to help bridge the gap in co-operation resulting from the abolition of regional planning. The Duty requires LPAs to “engage constructively, actively and on an ongoing basis” with neighbouring authorities whilst preparing their local plan. However, as noted in your letter of 30 October, the Duty as a legal provision has, at times, been difficult to comply with and has led to some notable local plan failures. This is in part because any shortcomings relating to the Duty cannot lawfully be remedied during examination.

The new plan-making system provided by the Levelling Up and Regeneration Act 2023 does not include the Duty. Instead, the new system will rely on revised national policy and the new tier of strategic planning to ensure effective co-operation between plan-making authorities. The Regulations for the new system will also ‘save’ the current plan-making system for a period to allow emerging plans to progress to examination by 31 December 2026. Given the above, and to help drive local plans to adoption as quickly as possible and progress towards our objective of universal local plan coverage, we have decided not to ‘save’ the Duty, thereby removing this requirement for plans in the current system.

The Duty will therefore cease to apply when the Regulations come into force early next year, including for plans at examination at that point. On the basis of the government’s firm intention to abolish the Duty for the current system, examining Inspectors may wish to begin any necessary dialogue with LPAs in advance of the Regulations coming into effect, with reference to this letter. Of course, LPAs should continue to collaborate across their boundaries, including on unmet development needs from neighbouring areas and Inspectors should continue to examine plans in line with the policies in the NPPF on ‘maintaining effective co-operation’.”

This is perilously close to retrospective legislation it seems to me but, pragmatically, politically, a potential lifeline has been thrown to, for instance, the Mid-Sussex local plan and the South Oxfordshire and Vale of White Horse joint local plan. For some background on the Mid-Sussex local plan duty to cooperate issue, see my 7 June 2025 blog post Not Sure Why The Media Was So Focused On Musk v Trump This Week Given What Has Been Happening In Sussex since when the inspector, in a letter dated 3 November 2025,  had – can we say grudgingly? – agreed to hold a further hearing session in January 2026. The South Oxfordshire and Vale of White Horse joint local plan inspectors had written to the two authorities on 26 September 2025 indicating that they considered that the duty to cooperate had not been met. Since the minister’s 27 November 2025 announcement they have now written again to the authorities in a letter dated 1 December 2025 seeking their views on the implications of the announcement for the examination and “in particular how the Councils wish to proceed”.

Plan-making deadlines

Two reasons why the notion of a “plan-led” system is increasingly theoretical are surely:

  • Obviously, the continuing lack of up-to-date local plan coverage across England.
  • The increasingly impenetrable nature of the local plans system, already with plans proceeding under the previous and current NPPFs and now to overlap with the proposed new system, supposedly to be faster but that was initially designed with the concept of (a) statutory national development management policies (we will see if the non-statutory fudge makes a practical difference in that respect) so as to narrow down their role basically to the allocation of land for development and the designation of land for specific forms of protection and (b) a now abandoned watered-down “soundness” test.

Is a simpler, speedier system on the horizon? Hmm.

In his Q&A session with Sam Stafford at the LPDF conference on 27 November 2025, Matthew Pennycook revealed that timescales for authorities to prepare new style local plans would in some instances be brought forward, rather than the previously proposed phased introduction. That day we then had a press statement (New local plan system launching early 2026: latest update), a written ministerial statement (Reforming Local Plan-Making) and a detailed Plan-making regulations explainer.

From the written ministerial statement:

“Having considered carefully responses to the earlier consultation, I am announcing today that we no longer intend to roll the system out in a series of plan-making ‘waves’. Instead, local planning authorities will be encouraged to bring plans forward as soon as possible following the commencement of the regulations early in the New Year.

Whilst authorities will have discretion over how soon they start their plan, regulations will set out final ‘backstop’ dates for when plan-making must legally have commenced. Local planning authorities covered by the NPPF transitional arrangements will have to commence formal plan making (Gateway 1) by 31 October 2026, while those that have a plan that is already over five years old must commence by 30 April 2027. Further information will be set out in the regulations and in guidance.”

From the explainer:

“In general, the regulations will require that local planning authorities publish their Notice to Commence Plan-Making within 4 years and 8 months of adopting their existing local plan, or by 31 December 2026, whichever is the latest. They must then begin preparation of a new local plan (publish their gateway 1 self-assessment form) within 5 years of adopting their existing local plan, or by 30 April 2027, whichever is the later.

However local planning authorities who submitted a plan for examination on or before 12 March 2025 with an emerging housing requirement that was meeting less than 80% of local housing need will be required by regulations to publish their Notice to Commence Plan-Making by 30 June 2026 and their Gateway 1 self-assessment by 31 October 2026. This will not apply to areas where there is an operative Spatial Development Strategy which provides the housing requirement for the relevant areas. 

If an existing system plan is withdrawn from examination prior to adoption, regulations will require local planning authorities to publish their Notice to Commence Plan-Making in the new system at the same time as the plan is withdrawn, and to publish their Gateway 1 self-assessment 4 months later.

Further details on the initial rollout of the new plan-making system will be set out on Create or Update a Local Plan.

Supplementary Planning Documents (SPDs) will remain in force until planning authorities adopt a new style local plan or minerals and waste plan. The final adoption date for new SPDs will be 30 June 2026, to ensure any advanced emerging SPD can be adopted. 

These Regulations will also have the effect of abolishing the Duty to Co-operate for the existing plan-making system, by not saving this provision for plans progressing to examination in the existing system by 31 December 2026.”

Whilst in theory encouraging an earlier start to plan making sounds positive, in many areas these emerging plans could well get stalled by a combination of local government reorganisation and the incoming spatial development strategies.

The local government reorganisation map is still unclear, with authorities in two tier areas outside the devolution priority programme having now submitted their proposals by the 28 November 2025 deadline, apparently proposing more than 50 different potential configurations for ministers to consider (Exclusive: Over 50 LGR proposals sent to MHCLG – Local Government Chronicle, 3 December 2025). Elections for the new authorities are due in May 2027 ahead of going live in April 2028. How many current authorities will push through their plans to a conclusion ahead of, and in the face of, what lies ahead?

The map is also unclear as to what will be the new England-wide strategic tier. The government’s commitment was that the new spatial development strategies, with which in the future local plans should confirm, would be in place by 2029, but this looks increasingly unlikely. Yes it is all complex, but one wonders what role politics will increasingly play. Last week there was the unexpected announcement that Mayoral elections in four areas within the devolution priority programme, Greater Essex, Sussex and Brighton, Hampshire and the Solent, and Norfolk and Suffolk have been delayed from May 2026 to May 2028. There is apparently nothing to prevent the new strategic authorities, once created, from making progress with preparing SDSs ahead of their Mayors being elected but how does this work democratically?

Oh and in a couple of weeks we will see the new consultation draft NPPF, incorporating, we assume, more targeted sets of policies for plan making and for decision taking. And the latest set of housing delivery test outcomes. And throughout, p for politics…

Essay question for the festive period: Is our planning system in practice currently plan-led or application–led? And is this likely to change?

Lastly, thank you Paul Morrison for your work as chief executive of the Planning Inspectorate over the last three years. PINS is the main glue holding the current system together and its performance remains impressive. Congratulations to new interim chief executive Graham Stallwood. No pressure Graham!

Simon Ricketts, 6 December 2025

Personal views, et cetera

Sam Stafford and minister Matthew Pennycook MP at LPDF conference 27 November 2025

Just What Is It About Today’s Planning System that Makes Appealing So … Appealing?

On 22 September 2025 the Secretary of State allowed two recovered appeals, granting planning permission for proposals which local authority members had refused against their professional officers’ opinions. In one of those cases, a full award of costs was ordered against the authority which I guess will amount to several hundred thousands of pounds. Development was unnecessarily held up in both cases for what turned out to be no good reason, in one case the decision to refuse having been in March 2024 following submission of the application in September 2022 and the other in May 2024 following submission of the application in November 2021. Both decisions were made in accordance with the relevant inspector’s recommendation.

I’m thinking back yet again to the Lichfields May 2025 research paper for the LPDF and Richborough Estates, How Long Is A Piece Of String? which found not only that applications for major development are taking twice as long to determine as 10 years ago but that it is now on average quicker to achieve permission via appeal than via the local planning authority.

I’m also thinking of the latest 50 Shades of Planning podcast episode Who’s In Control? (27 September 2025) where a number of us discuss, amongst other things, the ethical position of officers whose advice is overturned by councillors.

And I’m thinking that neither the proposed move to an increased number of applications being determined by way of delegated powers, and increased training for members, would have been likely to change the position with these two appeals. Do awards of costs influence behaviour? I would welcome your views. From the outside I’m not sure they really register either with councillors or, perhaps most importantly , with voters.

The two decisions were as follows:

Brighton Gasworks

Planning application submitted to Brighton and Hove Council in November 2021 by St William for a scheme that, following amendments,  included 495 residential units and 2,791 square metres of commercial space. It was recommended for approval in May 2024 but in the face of significant local opposition was resolved to be refused. The reasons for refusal (1) alleged the development would represent overdevelopment of the appeal site by virtue of excessive massing, density and height thereby harming the townscape of the area including its heritage assets; (2) related to the proposed housing mix (subsequently withdrawn) and (3) concerned the effect of the appeal scheme on the living conditions of future residents with particular regard to amenity and light.

St William appealed. The appeal was recovered by the Secretary of State. The inquiry sat for six days in March 2025. The Secretary of State’s decision letter accepted the inspector’s recommendations and allowed the appeal. The Secretary of State’s conclusions are worthy of note on issues such as character and appearance, density and height (paragraph 14),; the current negative effect of the “underused and despoiled” site on the “varied and robust urban townscape of east Brighton” (paragraph 15); daylight and sunlight and living conditions more generally (paragraphs24 to 28); and acceptance of the agreed position between the appellant and the council that the development would not be able to provide affordable housing given the high cost of remediating the site (paragraph 30).

In his accompanying costs decision letter, again accepting his inspector’s recommendation, he orders a full award of costs in favour of St William, on the basis that:

* the Council prevented or delayed development which should clearly be permitted, having regard to its accordance with the development plan, national policy and all other material considerations (CR48);

* the Council failed to produce evidence to substantiate each reason for refusal on appeal, made vague, generalised or inaccurate assertions about a proposal’s impact and failed to determine similar cases in a consistent manner (CR49); and

* there were substantial procedural failings on the Council’s part including an obstructive and untimely approach to the Statement of Common Ground, the submission of a Statement of Case which was bereft of meaningful detail and a failure to review.

When it comes to any councillor training programme I hope this appeal decision will be part of the study materials, including, verbatim, these conclusions from the inspector’s costs report:

“Had the Council had proper regard to its own Development Plan, the NPPF, other material considerations and carried out a proper balancing exercise, the application would most likely have been approved notwithstanding the concerns raised by Members. The Council therefore prevented or delayed development which should clearly be permitted, having regard to its accordance with the development plan, national policy and all other material considerations.

The Council’s objections did not stand up to scrutiny and therefore I find that the Council failed to produce evidence to substantiate each reason for refusal on appeal, made vague, generalised or inaccurate assertions about a proposal’s impact and failed to determine similar cases in a consistent manner. It goes without saying that a decision to refuse planning permission on an allocated site against the professional advice of officers requires very careful consideration and highly robust reasoning.

There were also substantial procedural failings on the Council’s part including an obstructive and untimely approach to the SoCG, the submission of a Statement of Case which was bereft of meaningful detail and a failure to review its case promptly following a material change in national policy.

The above unreasonable behaviour resulted in unnecessary or wasted expense, as described in the PPG. I therefore conclude that a full award of costs is justified.

While I understand that the above will come as a bitter blow to the Council, it is right that I acknowledge the important work of officers during what was a long preapplication and determination period. That work culminated in the production of a Committee Report which was of the very highest order. Officers were also beyond reproach for the way they assisted the inquiry.”

Sky Studios Elstree expansion proposal

Planning application submitted in September 2022 for a film and television production studio (use Class E(g)(ii)) with ancillary floorspace, backlot, new access arrangements, car parking, landscaping, infrastructure and associated works in the green belt north of the existing Sky Studios Elstree complex. Hertsmere Borough Council members had resolved to refuse the application in March 2024 against officers’ recommendations, concluding that the “very special circumstances” test had not been made out for inappropriate development in the green belt.

Sky Studios appealed in October 2024 and the appeal was recovered by the Secretary of State. The inquiry sat for four days in March and April 2025. The Secretary of State’s decision letter accepted the inspector’s recommendations and allowed the appeal. Following the introduction of the grey belt policy designation into the NPPF in December 2024, the Secretary of State found that the site was indeed grey belt. The only real issue was whether there was unmet need for the development, on which issue his findings were as follows:

“For the reasons given at IR14.20-IR14.23 and IR14.43, the Secretary of State agrees with the Inspector that Sky Studios Limited has identified a need to enlarge its current operation at SSE, that there is a reasonable and probable outcome that if the appeal is allowed, the type of development that would take place would be for an extension of the existing studio site at SSE, and that there is an unmet need for studio space related directly to the expansion of SSE (IR14.23).

In reaching this conclusion, the Secretary of State has taken into account that the description of development does not specify that the development would be used as an extension to the existing SSE site, and no condition requiring the development to be an extension has been put forward either (IR14.17). He acknowledges that it is conceivable that the proposed development could be operated as a standalone studio business separate to SSE without any restrictions imposed by the description and any planning conditions (IR14.19). However, taking into account the matters set out at IR14.20-14.23, the Secretary of State considers that the proposal is highly likely to be brought forward as an extension and that it is appropriate to proceed on this basis. He considers on that basis that unmet need has been demonstrated and carries substantial weight in favour of the proposal, and that the requirement in NPPF155(b) is met.

The Secretary of State has also considered what the need position would be on the basis of a standalone studio. He has noted the position set out at IR14.24-14.25, but like the Inspector considers that national and local economic policy seeking to grow the sector, and an increased spend in productions, do not in themselves equate to unmet need.”

“…if considered as a standalone studio, the Secretary of State considers that unmet need has not been demonstrated. On that basis, the requirement in NPPF155(b) would not be met, the proposal would therefore be inappropriate development in the Green Belt and very special circumstances would need to be demonstrated. As set out at paragraph 21 above, in that scenario the Secretary of State considers that the harm to the Green Belt in terms of inappropriateness, harm to openness and harm to purposes would have carried substantial weight. Although he has not proceeded on that basis, for the avoidance of doubt, he considers that the harm to the Green Belt and any other harm would be clearly outweighed by the benefits of the scheme such that very special circumstances would exist and development in the Green Belt would be justified.”

A textbook application of green belt principles. (Incidentally, in the unlikely event that you need a primer on grey belt I think you can still access a webinar I gave this week on that subject via Inside Housing – see here for more details).

Perhaps the outcome of the Sky Studios appeal only became obvious once we had the December 2024 NPPF but perhaps the big question for MHCLG should be, rather than further tweaks to law or policy, how to make sure that many more appeals like these two are not needed before the message gets through as to how the current legislation and policy framework is to be applied? Otherwise, whether through members’ overturns, or through non-determination appeals, schemes will be continuing to come before the Planning Inspectorate, with all the delay, expense and unnecessary risk thereby arising, that really should be determined appropriately at a local level. It’s reassuring that the appeal route is available but the relative attractiveness of that route versus waiting for a local outcome is not good in public policy terms – as I said at a breakfast discussion that we held at Town Legal this week alongside Shared Voice and Rupert Warren KC and attended by the interim chief planning inspector Rebecca Phillips (for which thanks for her participation), it’s the equivalent of people being unhappy with the service at their local GP and instead going straight to A&E…

Simon Ricketts, 27 September 2025

Personal views, et cetera

Just what is it that makes today’s homes so different, so appealing? 1956 collage by Richard Hamilton

The Only Way Is Ethics – What Is The Role Of The Professional Witness?

In preparing for a 50 Shades of Planning podcast episode we are recording this week on the wider subject of ethics in planning I looked back on an interesting case on the position of those who give evidence as an expert in the High Court on planning issues in circumstances where they have previously been involved as a consultant in the project.

The position under the High Court’s Civil Procedure Rules is certainly tighter than the position in relation to those giving evidence at planning inquiries, for instance, but perhaps there are still lessons, or reminders at least, for the latter. The case is Freeman & Others v Home Farm Ellingham Limited (HHJ Claire Jackson (sitting as a High Court Judge in the Business and Property Courts in Newcastle-upon-Tyne, 17 April 2025) and it was brought to my attention by a LinkedIn post by James Maurici KC who I hope I will not mind my reproducing it in full as follows:

“Interesting recent judgment that I have just come across for those who give expert evidence in the High Court on planning and development related issues.

In Freeman v Home Farm Ellingham Ltd [2025] EWHC 878 (Ch) the Court was considering a claim for specific performance of an obligation to procure the adoption of an access road to a housing development. Of wider interest is the decision of the Court (HHJ Claire Jackson sitting as a Deputy High Court Judge) to rule inadmissible the evidence of one of the experts for the parties. The expert evidence for the claimant was challenged on the basis that he was partisan in his evidence and failed to therefore comply with his duties as an expert under CPR Part 35: see paras. 32 – 44 of the judgment.

The Court noted that the expert was heavily involved in the planning processes which led to the housing development in issue but that this did not in itself preclude his acting as an expert in the Court proceedings under CPR Part 35. The Court gives a useful summary of the principles applicable to the issue of independence of experts (see paras. 36 – 39). The Judge went on to rule the expert evidence inadmissible on the basis that (see para. 40) the claimant’s expert “was a partisan witness who both wrote his report and gave evidence at trial for his client in a non-impartial way” and that he (ibid) “did not act simply as an expert in the case, he acted as an advocate for the Claimant. This was obvious both from his written report and his oral testimony, where frequent criticism can be made of [the expert] for the tenor, tone and content of his evidence.” The Judge gives a list of examples of her concerns with the evidence (including among a number of matters that he “orchestrated the production of what appears to be factual evidence”). She concluded (see para. 41) he was “not impartial but rather acted to prefer the interest of the Claimant as his client and to advocate a case for it. This lack of impartiality affected both the preparation and presentation of [his] evidence, his assessment of the evidence and his findings” and (see para. 42) that the “partiality and desire to act as an advocate for the Claimant” had “permeated his entire report and his oral evidence and therefore it is not on this occasion appropriate to admit [his] report or oral testimony as admissible“.  

So an important case for those who give expert evidence in the development field at High Court level. And it is a reminder that the requirements of CPR Part 35 are perhaps more stringent than those that apply to the giving of expert evidence at planning inquiries and similar processes: see PEBA’s “Good Practice Memorandum 2: Guidance for barristers on dealing with experts at Planning and Other Similar Inquiries“.

The issue is a practical one: the local planning authority’s expert witnesses will often have been heavily engaged in the matter at application stage and sometimes may have publicly given advice to councillors on the issues, only for the advice to have been overturned. But it is potentially no easier for the appellant’s expert witnesses: the planning witness may have been heavily engaged in advising their client initially on the suitability of the site, perhaps making representations through the local plan process, coordinating the preparation of the application and so on – often having a long term relationship with the client, which may be affected by the outcome of the appeal (and of course may indirectly benefit from a successful outcome by way of follow-on work in relation to the project). In a system where professional, objective, opinions are at a premium, how to ensure that the inspector or Secretary of State gives weight to the evidence which professionals give on relatively subjective matters, where they are not coming at the issues from a fresh, entirely independent, perspective?

The Planning Inspectorate’s Planning Appeals Procedural Guide has only brief advice:

“15. Expert evidence

15.1. Expert evidence is evidence that is given by a person who is professionally qualified to express an opinion on a particular subject. It can be used in all appeals.

15.2. It is the duty of an expert to help the Inspector. This duty overrides any duty the expert may have to the party that involved them in the appeal or that is paying them.

15.3. The evidence should be accurate, concise, and complete and should represent the expert’s honest and objective opinion. If the expert belongs to a professional body that has a code of practice on professional conduct dealing with giving evidence, the expert is expected to comply with the code.

15.4. Expert evidence should include an endorsement such as that set out below or similar (such as that required by a particular professional body):

“The evidence which I have prepared and provide for this appeal reference APP/xxx (in this proof of evidence, written statement or report) is true [and has been prepared and is given in accordance with the guidance of my professional institution] and I confirm that the opinions expressed are my true and professional opinions.” This will enable the Inspector and others involved in an appeal to know that the material in a proof of evidence, written statement or report is expert evidence.

15.4.1. Giving expert evidence does not prevent an expert from acting as an advocate so long as it is made clear through the endorsement or otherwise what is expert evidence and what is not.”

For the purposes of this post I am just focusing on expert planning evidence, rather than other professional disciplines (but the same holds true right down the expert witness batting order).

RTPI members are subject to its code of conduct which includes the following:

“Independent professional judgement

11. Members must exercise fearlessly and impartially their independent professional judgement to the best of their skill and understanding.

12. Members must not make or subscribe to any statements or reports which are contrary to their own genuine professional opinions, nor knowingly enter into any contract or agreement which requires them to do so.

13. Members must base their professional advice on relevant, reliable and supportable evidence and present the results of data and analysis clearly and without improper manipulation.”

There is also more specific practice advice on ethics and professional standards, within which section 5 specifically deals with giving evidence at inquiries:

“The Code requires RTPI Members to act with integrity and express their own professional view.  As an ‘expert witness’ at a planning inquiry or hearing, you are there to give evidence in the form of facts and professional opinion. Facts must be true and professional opinion must be first hand. If the evidence is someone else’s opinion e.g. an assistant planning officer giving evidence of a chief officer’s recommendation to the local authority they can only do so as evidence of a matter of fact. There may be times where you must deal with a situation where your professional view is under scrutiny.

For RTPI Members employed by a public body (such as a local planning authority) in particular, you may be asked to defend a decision that differs from the public report you wrote recommending an alternative view. This can sometimes be referred to as a ‘committee overturn’. For RTPI Members employed in a private consultancy, a client may commission you to represent or ‘advocate’ their interests where, on balance, in your opinion the proposal that is being tabled at appeal needs improvement.

Dealing with committee overturns

When appearing as an expert witness you must disclose your independent professional opinion and should endorse this upfront in your witness statement or report. Advice from the Planning Inspectorate on ‘what is expert evidence’ and how to endorse the evidence you give is a useful guide for any professional planner regardless of which legal system you work within.

RTPI Members representing a decision that is a committee overturn and therefore contrary to their officer report should take care to avoid giving the impression any evidence they are presenting is their own professional view. Instead you may feel comfortable stating information as the ‘council’s view’ and therefore acting as an advocate for the case.

Clearly the RTPI Member whose professional opinion does not conform with recommendations the evidence is supposed to support is unlikely to be the best witness in such circumstances. You should discuss this possible situation with your manager who will want to consider the consequences for the employer if any difference in professional judgement comes to light during the appeal process. Concerns should be raised in good time to allow for any changes in personnel to be arranged.

The authority may still consider asking the officer to give technical evidence at the inquiry, but call someone else who is in the position to speak with conviction of the planning reasons for the authority’s decision. This could be either another council employee who is quite appropriately able to form a different professional view or, in some instances, the local politician who, as Chair of the Planning Committee, made the decision.

An authority may alternatively employ a planning consultant to undertake the task who can weigh up the information, development plan policy and other material considerations and also form a different professional view.

Planners as advocates

The role of an advocate is quite different from acting as an expert witness and involves taking the wider role of presenting to the inquiry or hearing what the authority or client would say for

themselves. An RTPI Member who takes on the role of advocate will need to have skills in advising on case content and presenting a case, and may need to seek further legal advice.

It is possible that you may be asked to act as an advocate and appear as an expert witness at a hearing or inquiry. You must decide whether the two roles are reconcilable, possibly after discussion with colleagues. You must have confidence that you are able to retain professional integrity, whilst serving the best interests of your client or employing organisation.

RTPI Members may still act as an advocate in cases where their professional views differ from the evidence being advanced, provided that they do not wilfully mislead the inquiry or fail to give the inspector or other officer the help they are entitled to receive.”

Still quite brief.

RICS members are subject to more detailed professional requirements, set out in a practice statement and guidance note for expert witnesses. I’ve previously noted – see my 20 October 2018 blog post Planning Inquiries: Expert Witnesses & Success Fees that was written on the back of a judgment of Holgate J (as he then) was in relation to a business rates case- that, unlike with the RTPI, the RICS professional guidance expressly prohibits success fees tied to the relevant dispute outcome, although surely this impliedly applies across the board.

It seems to me that transparent, enforced, rules governing the conduct of professional expert witnesses are essential given the nature of our system where ultimately most decisions on appeals turn upon issues of professional judgment. And in practice surely the more that the expert can demonstrate their professional independence and integrity and that their evidence is not influenced by any desire to advocate the client’s position, the more likely it is that the decision maker will give due weight to that evidence.

Sorry, that was all a bit dull. Hashi Mohamed is chairing our podcast chat – it will be much better. Stay tuned.

Simon Ricketts, 13 September 2025

Personal views, et cetera

How Do You Solve A Problem Like…Speeding Up Planning Appeals Without Being Unfair Or Counter Productive?

One of Rodgers and Hammerstein’s best.

MHCLG and the Planning Inspectorate this week announced that they would be imposing additional discipline on the parties to planning appeals which proceed by way of written representations. Regulations are to be introduced, to come into effect by the end of 2025, which will (according to accompanying detailed guidance):

  • expand the use of the simplified written representations procedure currently used for householder and minor commercial appeals (“part 1 appeals”) so that it will also apply to appeals in relation to the refusal of planning permission or reserved matters, the imposition of conditions on approvals and the refusal of prior notification or prior approval.
  • retain the six months’ appeal time limit for these appeals and allow PINS to transfer an appeal to the traditional written representations process where the simplified process “is not best suited for handling the appeal”.
  • not permit any further documents to be submitted by an appellant with their appeal beyond a copy of their application, the local planning authority’s decision notice and “a brief statement responding to the LPA’s decision and why they disagree.”
  • not permit an appeal statement or any other comments to be submitted by the local planning authority other than a copy of the information that they considered when deciding the application. “If members overturn an officer recommendation at committee, it’s important that meeting minutes and refusal reasons are robust and fully address any issues. LPAs should update their notification templates to communicate that any comments made by interested parties at the application stage will be shared with the Planning Inspectorate in the event of a part 1 appeal and that they cannot comment on the appeal.”
  • not permit any comments by third parties (although representations made during the application process will be made available to PINS by the local planning authority).

The procedure will apply to appeals in relation to applications submitted after the new system comes into force.

If this results in a crisper appeal process, without any loss of quality, there is much to like here, although care will be needed:

  • This makes it all the more important that applications when submitted are “appeal ready”, particularly as there is always a risk that the local planning authority may not allow amendments or additions to the application documentation to be submitted during the application process.
  • Local planning authorities’ reasons for refusal will need to carefully considered – and the reasoning within officers’ reports.
  • Third parties will also need to be careful to make their views known at application stage, without the ability to supplement them subsequently.
  • It seems that scope will be lost for parties to narrow down the points at issue during the appeal process.
  • The Planning Inspectorate recently changed its guidance to require completed section 106 agreements and unilateral undertakings to be provided when the appeal is lodged. The expansion of the simplified written representations procedure will make it even more important that the completed document has been agreed with the local planning authority and is robust.
  • There is usually uncertainty, when an appeal is lodged, as to what procedure the Planning Inspectorate will adopt: inquiry, hearing or written representations. What where the appellant is seeking an inquiry or hearing but the Planning Inspectorate determines written representations to be appropriate? That is already procedurally problematic (for instance when an inquiry is sought and the appellant ends up with a hearing).

Of course, some muscularity is needed on the part of the Planning Inspectorate to ensure that appeal timescales continue to reduce. That has been a successful aspect of the reforms to inquiry procedure, for instance as to the setting of dates for inquiries where we no longer have such a merry dance driven by counsel availability. But there are dangers, as demonstrated by this week’s ruling by the High Court in Tiwana Construction Limited v Secretary of State (Eyre J, 24 June 2025).

This related to a hearing into an appeal against West Suffolk District Council’s proposed development of 10 self-build houses in Burwell. As a result of comments by the inspector at the hearing, the appellant decided to submit a section 106 agreement committing to the provision of three of the dwellings as affordable housing. The inspector gave a deadline for submission of a completed section 106 agreement, and then extended it, but due to complications it could not complete an agreement by the inspector’s extended deadline and instead submitted a completed section 106 unilateral undertaking together with a note from the appellant’s solicitors setting out why it should be taken into account and was satisfactory but that an agreement would take longer.

The judgment makes interesting reading, showing that by the deadline the inspector had already prepared a draft decision letter, with a draft conclusion that the appeal should be dismissed. The judgment is revealing as to the correspondence that then ensued within the Planning Inspectorate between the inspector and her professional lead. The inspector was minded not to take into account the unilateral undertaking because she had some concerns about the drafting and she had been told she would be receiving an agreement rather than an undertaking and that a further extension would be needed for completion of an agreement. The inspector gave a written statement to the court hearing: “The Professional Lead advised me that as I was already going to dismiss the appeal for other reasons and the Claimant had not met my deadline for the provision of a S106 agreement, I should side-step the issue of affordable housing in my Decision Letter because it was not a determining factor in my decision…”

The Planning Inspectorate refused the request for a further extension (“This extension for the agreement has been rejected by the inspector. The inspector gave a deadline and was accommodating by agreeing to an extension. The agreement was not submitted in accordance with that extended deadline, so she will make her decision accordingly“) and the inspector then duly dismissed the appeal.

The decision was quashed:

“The position can be stated shortly. The Inspector made a deliberate decision to side-step the question of affordable housing in the Decision Letter. She took, therefore, a deliberate decision not to explain either why she was not taking the proffered affordable housing into account as a positive factor in favour of the appeal nor why she had no regard to the Unilateral Undertaking. This was not the result of inadvertence or of reasons being expressed in a clumsy or abbreviated form. It was a choice deliberately made by the Inspector. It had the effect that the Claimant was not given even the briefest of explanations as to why the affordable housing, for which the Unilateral Undertaking made provision, had not been taken into account. There was a failure to provide the reasons for the decision on a contentious matter of importance.”

Furthermore, “provision of affordable housing was obviously a matter of weight in the planning balance in this case. It was, therefore, to be taken into account even though doing so might not have changed the ultimate outcome.”

“It is at least possible that if the Inspector had considered the Unilateral Undertaking and had taken account of that provision she would have increased the weight she attached to affordable housing as a positive factor in favour of the appeal. It cannot, therefore, be said that the outcome would necessarily have been the same and relief is not to be refused on that basis.“

I’m sure we all have these procedural dilemmas on appeals from time to time. Completing the section 106 agreement or unilateral undertaking may be taking more time than anticipated for reasons outside the parties’ control, or further evidence comes to light which the inspector is refusing to receive. How far do we push it? This judgment repays careful reading.

Until next week, So Long, Farewell…

Simon Ricketts, 28 June 2025

Personal views, et cetera

AI Will Add To, Rather Than Reduce, Planning Delays Unless We Do Something About It

There was that boosterish press statement from the prime minister, PM unveils AI breakthrough to slash planning delays and help build 1.5 million homes: 9 June 2025. I’ve read it a few times, along with, for instance, the more detailed MHCLG Digital blog post, Extract: Using AI to unlock historic planning data (12 June 2025).

The “Extract” tool is targeted to be available for local authorities by next Spring to enable the easier digitisation of old planning documents and maps. Useful as it may be (“revolutionary”! “breakthrough”! “cutting-edge technology”!):

  • to talk this up as the way to “slash planning delays and help build 1.5 million homes” is, shall we say, pushing it; and
  • for the avoidance of doubt it should not be at the expense of us all being able to interrogate copies of the original documentation (memories of the transfer of authorities’ planning records to microfiche files – many an unhappy hour spent at those dreaded microfiche machines -and of whole swathes of planning records that have mysteriously disappeared as a result of, for instance, past waves of local government reorganisation).

In my 20 October 2024 blog post, Together In Electric Dreams I referred to some of the other technical advances which may help, and of course the legislation now enacted via the Levelling-up and Regeneration Act 2023 to set common data standards. The submission deadline has also just closed for MHCLG’s Geovation PropTech Innovation Challenge, where up to 12 companies will share in £1.2 million to develop solutions “to accelerate the delivery of 1.5 million homes in England through scalable PropTech solutions, and make a measurable impact on the yearly target of 300,000 new homes”.

However, are we sufficiently focused on the risks that AI ends up adding to, rather than, reducing planning delays, in particular though enabling submission by applicants and objectors alike of over-long and sometimes inaccurate material?

Lawyers will be well aware of the salutary case of R (Ayinde) v London Borough of Haringey (Dame Victoria Sharp and Johnson J, 6 June 2025), where a junior barrister, Sarah Foley, prepared grounds for judicial review which cited five cases which do not exist. Her evidence to the court was that “when she drafted the grounds she “may also have carried out searches on Google or Safari” and that she may have taken account of artificial intelligence generated summaries of the results (without realising what they were)”. The barrister was instructed by the Haringey Law Centre, whose solicitor and chief executive, Victor Amadigwe, gave evidence that: “Haringey Law Centre relies heavily on the expertise of specialist counsel. It has not been its practice to verify the accuracy of case citations or to check the genuineness of authorities relied on by counsel. It had not occurred to either Ms Hussain or Mr Amadigwe that counsel would rely on authorities that do not exist. When Haringey Council raised concerns about the five authorities, Ms Hussain and Mr Amadigwe wrote to Ms Forey and asked her to provide copies of the cases. Ms Forey did not do so, but she did provide the wording for the email that Ms Hussain sent on 5 March 2025. In the light of that wording, Ms Hussain and Mr Amadigwe did not appreciate that the five cases that had been cited were fake – they wrongly thought that there were minor errors in the citations which would be corrected before the court. Ms Hussain denies that Ms Forey told her that she had been unable to find the cases. It was only at the hearing before Ritchie J that they realised that the authorities did not exist. Mr Amadigwe has now given instructions to all his colleagues within Haringey Law Centre that all citations referred to by any counsel must be checked.”

The court decided not to instigate contempt proceedings against those involved but set out matters which required further consideration by the lawyers’ respective regulatory bodies.

The court’s judgment has these important passages on the use of artificial intelligence in court proceedings:

“4. Artificial intelligence is a powerful technology. It can be a useful tool in litigation, both civil and criminal. It is used for example to assist in the management of large disclosure exercises in the Business and Property Courts. A recent report into disclosure in cases of fraud before the criminal courts has recommended the creation of a cross-agency protocol covering the ethical and appropriate use of artificial intelligence in the analysis and disclosure of investigative material. Artificial intelligence is likely to have a continuing and important role in the conduct of litigation in the future.

5. This comes with an important proviso however. Artificial intelligence is a tool that carries with it risks as well as opportunities. Its use must take place therefore with an appropriate degree of oversight, and within a regulatory framework that ensures compliance with well-established professional and ethical standards if public confidence in the administration of justice is to be maintained. As Dias J said when referring the case of Al-Haroun to this court, the administration of justice depends upon the court being able to rely without question on the integrity of those who appear before it and on their professionalism in only making submissions which can properly be supported.

6. In the context of legal research, the risks of using artificial intelligence are now well known. Freely available generative artificial intelligence tools, trained on a large language model such as ChatGPT are not capable of conducting reliable legal research. Such tools can produce apparently coherent and plausible responses to prompts, but those coherent and plausible responses may turn out to be entirely incorrect. The responses may make confident assertions that are simply untrue. They may cite sources that do not exist. They may purport to quote passages from a genuine source that do not appear in that source.

7. Those who use artificial intelligence to conduct legal research notwithstanding these risks have a professional duty therefore to check the accuracy of such research by reference to authoritative sources, before using it in the course of their professional work (to advise clients or before a court, for example). Authoritative sources include the Government’s database of legislation, the National Archives database of court judgments, the official Law Reports published by the Incorporated Council of Law Reporting for England and Wales and the databases of reputable legal publishers.

8. This duty rests on lawyers who use artificial intelligence to conduct research themselves or rely on the work of others who have done so. This is no different from the responsibility of a lawyer who relies on the work of a trainee solicitor or a pupil barrister for example, or on information obtained from an internet search.

9. We would go further however. There are serious implications for the administration of justice and public confidence in the justice system if artificial intelligence is misused. In those circumstances, practical and effective measures must now be taken by those within the legal profession with individual leadership responsibilities (such as heads of chambers and managing partners) and by those with the responsibility for regulating the provision of legal services. Those measures must ensure that every individual currently providing legal services within this jurisdiction (whenever and wherever they were qualified to do so) understands and complies with their professional and ethical obligations and their duties to the court if using artificial intelligence. For the future, in Hamid hearings such as these, the profession can expect the court to inquire whether those leadership responsibilities have been fulfilled.”

The internet is becoming increasingly unreliable – and the introduction of Google AI at the top of any set of search results, certainly doesn’t help

Surely, much of this advice is equally relevant to the planning system. As referred to in my  20 October 2024 blog post we have the Planning Inspectorate’s guidance on the use of artificial intelligence in casework evidence. How is this being policed in practice? And what of submissions made by applicants and objectors at application stage? I was pleased to see this piece: Local authorities need to ‘get wise’ to residents using AI to object to planning applications, warns GLA digital lead (Planning Resource, 12 June 2025 – behind paywall):

“The GLA’s head of change and delivery Peter Kemp told Planning’s Planning Summit yesterday (Wednesday 11 June) that “part of really successfully planning towns and cities is having the confidence of our residents”.

While digital planning brings a variety of “really exciting and positive” benefits , unless authorities start to think about the risks of AI they are “going to lose the confidence of their residents”.

One example of this is “how many people are using AI to produce objection letters to planning applications and misquoting case law as a result”, said Kemp.

“As local authorities, we need to get really wise to this and we need to start thinking about the impact of that in how we operate and how we build the confidence of junior officers to really operate in that space as well”, he added.

Kemp also noted that as a result of digital planning, the role of monitoring officers across London over the last five years “has fundamentally changed”.

Historically, monitoring officers would be responsible for manually supplying data on thousands of applications a year, but “now that stuff happens automatically, so their role has changed to check the quality of the data”, he said.”

I wonder how many authorities have followed the approach of North Norfolk Council which now has specific reference to the use of artificial intelligence in its local validation list?

The reality is surely that we are all collectively sleepwalking.

Worryingly, there is a cottage industry in online firms offering AI platforms to generate planning objections:

Or people can obviously use the tools themselves, generating lengthy, superficially well-written prose, with numerous legal, policy and/or factual references to be verified. This ultimately helps no-one, least of all those putting their trust in these tools.

And the issue is not just with text but of course images too – see Iceni’s Rebecca Davy’s 10 June 2025 blog post AI tools are reshaping how we read the past – how can heritage consultants help to keep the records straight?

Rather than relying on authorities individually to set out guidance for anyone submitting documents for reliance in the operation of the planning system, wouldn’t it be better for firm guidance to be set down centrally by MHCLG, using as a basis the Planning Inspectorate’s current guidance?

  • When should use of AI be declared in relation to any submitted material?
  • What is and isn’t AI for these purposes? (Predictive text,  proof reading and document transcription tools? More traditional web searches?)
  • What is the responsibility of person submitting the material to check the accuracy of the material, including underlying sources relied upon, and what should be the potential consequences if this is not done?
  • In any event, as I have been saying for so long, why do we not have indicative word and file size limits for different categories of material? Nearly every document submitted by anyone is simply too long and AI will exacerbate the issue. Now is the opportunity!

NB as always, in preparing this post I have had to avoid, for instance, WordPress’s “writing assistance” tool and, in uploading the images, the opportunity offered by Microsoft to “create an image using AI“. I get it why tools like this are increasingly popular but, without guardrails as to their use in connection with every element of the planning system, one thing is for sure: our jobs are going to become harder, not easier.

Simon Ricketts, 22 June 2025

Personal views, et cetera

Not Sure Why The Media Was So Focused On Musk v Trump This Week Given What Has Been Happening In Sussex

The gloves are off in Haywards Heath.

Let’s start with a 2 June 2025 press statement: Mid Sussex District Council to Challenge Secretary of State:

“Mid Sussex District Council has launched a legal challenge against the Secretary of State for Housing, Communities and Local Government after being advised by the Planning Inspectorate that it is considering failing the area’s District Plan. 

After examination of the Plan in November, the Council has waited five months to hear from the Inspector.

The Inspector’s findings are that the Council has failed in its Duty to Cooperate with neighbouring Councils, simply because it did not say specifically which neighbouring Councils would benefit from the 1,000 additional houses Mid Sussex will build to help them meet their housing needs.

The Council considers this to be an extraordinary response to a technical matter that could easily be remedied another way.

Mid Sussex is the only council in West Sussex to meet its housing targets, whilst also agreeing to build extra houses to help its neighbours, Horsham and Crawley.

The Council has also delivered an unprecedented number of new houses in recent years – over 1,000 per year.

The effect of the Inspector’s findings could be to leave Mid Sussex unprotected from speculative development. This is because, if the Council followed the Inspector’s findings, it would need to start its plan making from scratch. This would take at least 30 months and over £1m. Mid Sussex is due to be dissolved, under the Government’s plans for reorganisation, in 2028.

It is for these reasons that the Council feels it must legally challenge the Inspector’s views.”

Bring on strategic planning! Bring on simpler local plan processes!

By her letter dated 4 April 2025 the inspector examining the Mid-Sussex District Plan, Louise Nurser, concluded that the council had not met the duty to co-operate – fatal to the progression of the plan.

78. In sum, MSDC is surrounded by local authorities who either have an undefined or defined quantum of unmet housing needs and these needs are significant.

79. Crawley, [Brighton and Hove] and other neighbouring authorities have long acknowledged significant and extensive unmet housing needs. Indeed, these were recognised by the previous Inspector. Moreover, other neighbouring local authorities such as Horsham have grappled with issues of water neutrality and potential impacts on their ability to meet their own and other’s needs.

80. The review of the adopted Plan envisaged under Policy DP5 was to ensure that additional sites could come forward in sufficient time to contribute to the sub-region’s unmet housing need. This process was to be planned effectively and strategically. Clearly, it would have been an easier task for the Council if one of the wider sub-regional organisations actively took the lead in addressing unmet needs. However, this was not the case during the preparation of the plan.

81. Nonetheless, your officers will have been aware of this considerable unmet need and the Council’s legal obligations, well before the significant milestones in the preparation of the Plan. Consequently, in practical terms the lack of active engagement by the two sub-regional groups has meant that in practice, MSDC needed to co-operate with its neighbours directly to ensure that it addressed its legal obligations in relation to the DtC. These obligations are not discretionary.

82. The Council has an obligation to maximise the effectiveness of plan preparation in a wider sub region where there are significant unmet needs. It has not provided the evidence to demonstrate that it has engaged constructively, in an active and on-going way to do so.

83. In considering this obligation, I am aware that Mid Sussex has its own constraints, such as the North Downs National Landscape, the setting of the South Downs National Park and the limitations to development relating to the Ashdown Forest SPA/SAC and that the water neutrality issue affects a relatively small strip of land on the western edge of Mid Sussex. Nevertheless, the presence of constraints does not obviate the necessity for MSDC to explore the possibilities of doing more to help address the unmet needs of the wider sub- region. The failure here is that the Council has not adequately considered the requests of its neighbours – namely Crawley, Horsham and Brighton and Hove, in a constructive, active and ongoing way.  The Council has, consequently, not maximised the effectiveness of plan preparation

This might be seen as harsh given that, for instance, the adjoining authorities had not in fact objected to the position taken by Mid-Sussex.

And, incidentally, bring on a solution to that water neutrality issue! See my 9 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water – it’s been almost four years!!

MSDC sent a letter of complaint to the Planning Inspectorate dated 17 April 2025 alleging that decisions by the inspector had been fettered by pre-determined views; alleging that she had not behaved at the examination with courtesy, patience and understanding (e.g. “the Inspector frequently cut-off participants mid-sentence, displayed negative body language when listening to responses, and at one point admitted she had “switched off” whilst the Council’s Counsel was responding to a question. The Inspector made remarks such as being tetchy because she “needs some food” and that she is “not a morning person”” – there is in fact a 22 page appendix to the letter setting out extracts from the inspector’s interactions at the examination, cross-referenced to a YouTube video), and alleging that she had delayed unreasonably in reaching a decision about the plan following the conclusion of the stage 1 hearing sessions. At the same time, MSDC sent a pre-action protocol letter to the Government Legal Department (“The purpose of this letter is to seek to avoid the unnecessary expense and delay to which such action would give rise by asking the Secretary of State (a) to agree that the Inspector’s reasoning is legally erroneous, (b) to remove her from the role of examining the Plan and (c) to appoint a new Inspector to re-start the examination of the Plan in her stead.”). The letter included a request for all communications between the inspector/PINS and the Secretary of State/MHCLG in relation to drafts of the inspector’s 4 April 2025 letter.

The Planning Inspectorate  (via its local plans professional lead Simon Berkeley) and the Government Legal Department separately responded to the correspondence on 15 May 2025 but what is perhaps most interesting for those of us who like to see what goes on behind the curtain in these situations is to see the detailed file of correspondence that was released in response to the information request: have a look at the scrutiny given to some draft inspectors’ letters and the editing process that took place (which, subject of additional complaint by MSDC, includes input from Simon Berkeley).

MSDC has now separately responded to the Government Legal Department and to the Planning Inspectorate in letters dated 2 June 2025.

From the letter to the Government Legal Department:

“For the reasons set out above, the Council remains of the view that the Inspector’s reasoning is legally flawed, and that if it requests her to issue a final report which (as she has said is likely to be the case) is similarly reasoned, it would have good grounds for seeking judicial review.  However, it is possible to avoid that, and to the keep the Plan “on track” so as to help the Government meet its commitments.  Consequently, in order to inform its decision on how it should respond to the Inspector’s letter, the Council seeks your response within 14 days.”

From the letter to Simon Berkeley at the Planning Inspectorate:

“Given the multiple concerns the Council has regarding how our complaint has been addressed, we request that it is provided to an alternative, suitably qualified individual within the Planning Inspectorate, who should be tasked with undertaking a full, independent review of our original complaint.”

“The correspondence provided to us, extracts of which is included at Appendix A, demonstrates that you took a leading role in the quality assurance of the Inspector’s letter. You provided over 40 comments on a draft of the letter as well as making substantial textual amendments. In addition, you supported the Inspector in the conclusions that she was drawing; namely that the Council had failed the DtC. In your email dated 17 February 2025 to the Inspector you say: “I think you’re right to follow the path you have – from what you’ve said, it does appear to me that they have failed the DtC.” and that “it’s [the letter] all about remaining as safe as possible from challenge”.

Given your involvement in the quality assurance of the Inspector’s letter, the Council is at a loss to understand how it could be deemed appropriate for you to respond to our complaint.”

“…the language and tone used by the Inspector did not, in our opinion, create ease at the hearings or bring levity to the proceedings. Indeed, her behaviour had the contrary impact. Following the comments around who should read the Council’s opening statement and the Inspector’s reference in her opening comments to the need for ‘legal eagles’ to remember that they were “mere mortals”, our own Counsel, and Counsel instructed by other parties were reluctant to take the lead making representations on behalf of their clients because of the Inspector’s evident hostility to barristers.”

[NB (and, gulp, this is really going to kick things off) I endorse that “mere mortals” comment and indeed the recommendation in the Strategic Planning Group’s May 2025 report on planning positively for the future, that for examination processes for the new spatial development plans “Whilst from time-to-time participants may choose to have legal representation, the clear expectation should be that those attending will be giving their views directly and not via advocates.”]

Not to personalise this post too much but others in Sussex may remember the same inspector concluding in 2020 that the Wealden local plan be withdrawn due to failure of the duty to cooperate, together with other soundness issues. The authority is only back at regulation 18 draft stage with its revised plan.

Is PINS or the Government Legal Department going to yield in response to all of this? We shall see. Of course, in local plan making everything connects. Adjoining authority Horsham District Council, with its unmet housing needs partly down to its long-standing water neutrality issue, has been the recipient of a preliminary findings letter dated 22 April 2025 from its local plan inspector Luke Fleming, also concluding that there had been a failure of the duty to cooperate as well as issue over soundness:

“In my assessment, at the very least, for engagement to be constructive, active and ongoing between February 2024 and July 2024 on the strategic matters of housing and water supply, the ability to deliver any water neutral development without needing to rely on [the Sussex North Offsetting Water Scheme] or a strategic resolution to water neutrality should have been considered in some detail by all the relevant [North West Sussex Housing Market Area] local authorities before the Plan was submitted.”

“93. The Council’s affected by water neutrality should be commended for their efforts in trying to develop a local authority led water supply offsetting scheme. However, this has clearly proved more challenging and resource demanding than originally anticipated.

94. It is also my view, that the supply of water as a constraint to much needed new homes for people to live in the area, should have been addressed by bodies other than the Council long before now, especially given CC08 was issued in 2021.  Because, it hasn’t, the circumstances upon which the Council has had to prepare the Plan have been extremely challenging, with significant Council time and resources needing to be directed at assessing and understanding issues associated with the supply of water to new homes.  This is not usually an issue that local plan’s need to be concerned with in any extensive detail given the responsibilities of statutory water undertakers.

95. However, even so, under the circumstances I have outlined above, I can only recommend that the Council withdraw the Plan under S22 of the PCPA and focus its resources on rapidly preparing a new Local Plan.  In doing so the Council could utilise much of the good and comprehensive work already undertaken before components of the evidence base become out of date.”

[Not a letter that appears to have been subject to quality assurance, if the misuse of apostrophes in paragraphs 93 and 94 is anything to go by].

Horsham District Council has responded, complaining that “it has been treated unfairly with regards [sic] the approach taken to examining its Local Plan due to delays, poor communication and lack of transparency”, alongside publishing an inevitable press statement, Council rejects Inspector’s flawed assessment of Local Plan  (22 April 2025).

Look, I’m a mere mortal, but whatever the rights and wrongs of these specific situations, partly exacerbated by continued failures to resolve the water neutrality issue in northern Sussex: can anyone defend such a slow, uncertain, unstrategic and bureaucratic system?

Simon Ricketts, 7 June 2025

Personal views, et cetera

Fires

Two sad stories, presented without further comment.

Fire 1

Everyone will remember the case of the Crooked House pub in Dudley.

For a summary of the relevant facts, I turn to Mould J, in the opening passages of his judgment in ATE Farms Limited v Secretary of State (Mould J, 5 February 2025):

“The Crooked House used to operate as a public house well known for its tilted appearance both within and outside. The causes of the differential settlement resulting in that appearance and evident in the building are possibly various, including the underlying natural geology and the impact of historic mining activity. The pub closed in July 2023 apparently following a burglary which had caused considerable and costly damage. The appellant purchased the land on 21 July 2023.

On 5 August 2023 the building was seriously damaged by fire, the cause of which, and in particular whether it was caused deliberately by criminal action, are currently the subject of a police investigation. On 7 August 2023 the fire-damaged building was demolished by contractors acting on the instruction of the appellant.”

South Staffordshire Council issued an enforcement notice on 27 February 2024, alleging that without planning permission the Crooked House, an unlisted building, was demolished and that this was unauthorised development constituting a breach of planning control. “The appellant’s case is that those demolition works were initially agreed to by the second respondent, but that they led to an urgent risk of collapse and justified the immediate demolition of the remaining structure.”

“The enforcement notice requires the Crooked House to be rebuilt effectively so as to reinstate it in facsimile.”

“On 27 September 2024 the [council] requested that the appeal inquiry be adjourned until after the police investigation into the fire had been concluded, because the cause of the fire and whether it had occurred through human agency could be a key issue for the inquiry to resolve. On 18 October 2024 the Crown Prosecution Service wrote to the inspector notifying him that their current expectation was that the criminal investigation and any decisions on prosecution would be completed by the end of 2024. That letter included the following:

“As the Appeal touches upon an issue a criminal court may be asked to determine, we request that consideration be given to adjourning the appeal to allow time for the CPS to conclude its review. While we appreciate a decision not to charge a person with any criminal offence will not assist either party to the Appeal, a decision to prosecute may have a bearing on the Appeal and could also impact the criminal proceedings should the appeal be held in tandem.”

“On 15 November 2024 the appellant requested that the inspector postpone the start date for the inquiry on the grounds of fairness and prejudice to the criminal proceedings and pending completion of any criminal process.”

Following further representations by both parties, the inspector issued a note:

“As I am sure you understand, the Inspectorate has a duty to determine appeals in a timely manner, in particular where there is considerable local interest, hence our reluctance to postpone the inquiry. Timescales for the outcome of investigations and any subsequent Court proceedings are uncertain. If there is a court case this could take several years before we even began to consider the planning merits of the demolition of the building. Such a delay also ignores the question, how relevant is the issue of responsibility to the determination of the various grounds of appeal? This is still a matter of dispute between the parties.

In this regard, before I consider who was responsible for the fire, should that become necessary, there are a number of more fundamental questions to answer:

1.Can a fire be an act of demolition for the purposes of the 1990 Act?

2. If it can, does it matter who was responsible for the fire in so far as this may be relevant to the grounds of appeal?

3. Is there a difference between a genuine accident (an act of God) and a deliberate act – regardless of who carried out the deliberate act in so far as it relates to the considerations under appeal?

The three questions above are essentially legal and interpretational issues (and I have already had your outline views on them) which should, I would suggest, be dealt with by way of submissions. Consequently, in order to continue with the current, agreed, timetable, I suggest the following process is followed. Both parties provide submissions on the above questions which will cover grounds (b) [whether the matters have occurred which are alleged to be in breach of planning control] and (c) [whether, if they did occur, they amounted to a breach of planning control] at the same time as proofs are submitted. Proofs of evidence should then be limited to grounds (a) and (g) which will be the only matters examined at the inquiry.

Without prejudice to my determination of the appeal, I consider, at this stage, that there are three likely outcomes of grounds (b) and (c). Firstly, that ground (b) succeeds so there has been no demolition in which case the notice will be quashed. Secondly that ground (b)/(c) succeeds to the extent that the allegation needs to be corrected so that demolition is restricted to the part of the building that remained after the fire; and, thirdly, the grounds fail and it is unnecessary to correct the notice. This last outcome is the main component of ground (a), should planning permission be granted for the demolition of the building?

For the inquiry ground (a) should be considered on the basis of either the second or third outcomes.

Should you consider any additional outcomes may arise from grounds (b) or (c), relevant to ground (a), these should also be addressed in your submissions and proofs of evidence. Having heard the evidence on grounds (a) and (g) [whether a longer period for compliance should be allowed] and discussed conditions I will then discuss how best to proceed.

At present I consider the best way forward would be to adjourn the inquiry to allow me to consider the written and oral evidence. If it turns out that further evidence is required concerning the identity of those responsible for the fire this can either be dealt with by way of further written representations or I can re-open the inquiry. It may be possible to reach a decision without further evidence in which case I could close the inquiry and issue the decision letter. I will ensure both main parties have an opportunity to address me on this before I adjourn the inquiry and before any final decision is issued.”

The appellant argued that the inquiry should be postponed pending the outcome of the criminal investigation but the inspector issued a final ruling, confirming that the inquiry would start on 11 March 2025.

The appellant challenged the inspector’s ruling by way of judicial review and Mould J agreed that it should be quashed and remitted to the inspector for reconsideration:

“Firstly, it is the appellant’s case that the question whether they were responsible for the fire which occurred on 5 August 2023 is central not only to the determination of the enforcement appeal generally, but in particular to the evaluation of, and the determination of, the issue raised under ground (a). Whether the fire was accidental or was caused by human agency, their case is that they are innocent of its occurrence. They therefore, understandably, contend that it would be grossly disproportionate to their rights protected under Article 1 of the First Protocol of the European Convention of Human Rights to require them to reinstate the building at very considerable cost, in the event that the answer to that first question was in their favour. The appellant says that would be a powerful material consideration in support of the grant of planning permission retrospectively for the demolition of the building.”

“There is simply no realistic possibility that consideration of the ground (a) appeal at the forthcoming inquiry, let alone its determination, will be able to proceed without the inspector grappling with those questions of fact and causation. In my view, the inspector clearly misdirected himself in proceeding on the basis that he may be able to determine the enforcement appeal on ground (a) or at all, independently of inquiring into and finding facts as to the cause of the fire, on a true understanding of the evidence.”

“I have considerable sympathy for the inspector in his desire to avoid unnecessary delay and postponement of the inquiry. Not only does that objective flow from the Procedure Rules, as I have indicated, but it was in any event an entirely reasonable and understandable objective for him to pursue. The question though is whether he has misdirected himself in seeking to achieve that.

It seems to me, for the reasons that I have given, that the approach that he has followed cannot, in truth, avoid delay in relation to the determination of the ground (a) appeal. In order to determine the ground (a) appeal, it is inevitable that the inspector will have to hear evidence and make findings of fact on the cause of the fire: in particular, as to whether the appellant was responsible for it. He must do so in order to establish the true factual matrix against which to determine whether retrospective planning permission is merited in vindication of the appellant’s Article 1 Protocol 1 rights. On a true analysis of the position, there is no proper basis upon which the inspector can avoid hearing such evidence in the context of the ground (a) appeal.”

And so the appeal remains in abeyance, pending the outcome of the criminal investigations.

Fire 2

Many of you will also have read about the more recent fire that destroyed a grade II* listed World War 1 aircraft hangar, hangar 3,  at Old Sarum Airfield, Salisbury,  on 17 April 2025. See for instance Protecting airfield is about ‘protecting heritage’ (BBC, 24 April 2025) and Council seeking legal advice after fire rips through Grade II-listed site with permission for hundreds of homes (Inside Housing, 23 April 2025).

The fire coincided with the final outcome of a planning appeal inquiry (appeal decision letter dated 9 April 2025 and costs decision letter dated 17 April 2025).

The appeal was for a mixed use scheme at Old Sarum Airfield including 315 dwellings and was allowed, albeit with the inspector rejecting the appellant’s case that the development could not viably support any affordable housing, instead concluding that the proposed development could viably deliver 25%. Condition 17 imposed a restriction on occupation of more than 160 dwellings until hangar 3 had been restored. There were no awards of costs.

For a more personal narrative (which I am in no position to verify), you may be interested to read Hashi Mohammed’s recent LinkedIn post, Hashi having appeared for Wiltshire Council at the inquiry.

Simon Ricketts, 27 April 2025

Personal views, et cetera

Plan-Making, Or, The Olympic Sport Of Trying To Hit A Slowly Moving Target

Imagine working for a local authority, trying to arrive at a strategy for bringing forward a local plan against a backdrop that is constantly uncertain and evolving in at least four dimensions:

  • National policy as to plan-making
  • National policy as to the assessment of local housing need (the so called “standard method”)
  • Legislative reform to the plan-making system
  • Politics

Given the shifting nature of the various transitional arrangements, deadlines and targets, the theme of this post isn’t so much the substantive policies and methodological nuances but rather the bigger “real world” question: How does the Government minimise the likelihood that local authority councillors will shrug their shoulders, when advised of the Government’s latest direction of travel and the potential difficulties which authorities without an adequate or up to date plan may face, and say “we’ve heard it all before and will believe it when we see it…”?

After all, given that plan-making is meant to be the very basis of the planning system, the system is in utter crisis. Lichfields’ research paper Timed Out? in July 2023 for the LPDF identified that without immediate action from the Government, over 75% of LPAs in England would have an out-of-date plan for housing delivery by the end of 2025.

The current December 2023 version of the NPPF took a year to be published by the last Government following a consultation draft in December 2022. Authorities, particularly green belt authorities, had every reason to delay their plan-making, whether to avoid abortive work or to take advantage of the flagged likelihood that their local housing targets would become (even more) advisory rather than mandatory. The final version was originally intended to be published in Spring 2023! The final version of the document included transitional arrangements whereby it would only apply to plans which had not reached regulation 19 pre-submission draft stage by 19 March 2024.

As an overlay to that uncertainty during 2023, there was of course the prospect of a whole new system for preparing local plans, the framework for which is set out in the Levelling-up and Regeneration Act 2023 which received Royal Assent in October 2023. The previous Government’s July 2023 consultation on the implementation of the new local plans system repeated a statement in an earlier December 2022 consultation document, that:

“plan makers will have until 30 June 2025 to submit their local plans, neighbourhood plans, minerals and waste plans, and spatial development strategies for independent examination under the existing legal framework…[and]…all independent examinations of local plans, minerals and waste plans and spatial development strategies must be concluded, with plans adopted, by 31 December 2026. These plans will be examined under the current legislation.

… we are setting this out now to provide planning authorities with as much notice as possible of these dates.

We confirm our intention to have in place the regulations, policy and guidance by autumn 2024 to enable the preparation of the first new-style local plans and minerals and waste plans. As set out above, this deadline is contingent upon Royal Assent of the Levelling Up and Regeneration Bill, as well as Parliamentary approval of the relevant regulations.”

And as an overlay to that overlay, there was the prospect of changes to the standard method for assessing housing need, which potentially would have significant implications for many authorities. The current method is still based on 2014-based household projections with, since 2020, the 35% uplift in the 20 largest urban areas. Ostensibly a technical exercise but in reality of course a massive political hot potato, those prospective changes have been continually delayed. The position of the previous Government was as per its 19 December 2023 statement:

“We note the comments received around the continued use of 2014-based household projections within the standard method for assessing housing need, and the calls for more up-to-date projections to be used. Through the consultation we explained that the use of this data provides stability, consistency, and certainty to local planning authorities. Nevertheless, we committed to review the approach to assessing housing need once we have considered the implications of new 2021 Census based household projections, planned to be published by the Office for National Statistics in 2024. The Office for National Statistics recently confirmed that the next set of household projections are now planned for release in 2025. As with all policies we keep the standard method under review, and we intend to review the approach to assessing housing needs once this data is available.”

Clear as mud as to timescales.

So, imagine you’re a councillor with the objective of resisting additional housing in your area, with all this as the backdrop. What has been the incentive to bring forward your plan quickly? Yes you won’t have an up to date plan and may find that you’re facing applications for planning permission on unallocated sites, and subsequent appeals – with applicants relying on the NPPF’s tilted balance – but (1) appeal decisions have regularly demonstrated that the tilted balance is not particularly tilted, it’s certainly no cliff-edge, (2) hey you can always blame the Planning Inspectorate or the Secretary of State and (3) the risk of central Government intervention in your plan-making has always seemed somewhat of a bluff. Add in the large cost of preparing a plan and the flak you may receive. Hmm.

But new government, new direction. How likely is it that your thinking is now going to change in the light of last month’s announcements?

Looking at the draft revised NPPF, the local housing need figure determined via the standard method will no longer just be “an advisory starting point” and there will no longer be a get-out for green belt authorities: where “an authority cannot meet its identified need for housing, commercial or other development through other means….authorities should review green belt boundaries and propose alterations to meet those needs in full, unless the review provides clear evidence that such alterations would fundamentally undermine the function of the Green Belt across the area of the plan as a whole”. The draft replacement standard method would result in a higher local housing need figure for most authorities. In the absence of an up to date plan, there is a greater prospect of planning permission being secured on unallocated land, including on Green Belt sites that can be shown to fall within the “grey belt” definition.

There is a narrow window for authorities to make sufficient progress with their emerging plans so as to fall within the existing NPPF, with numbers guided by the current standard model. Within a month of the publication of the final version of the plan (so, let’s guess, by January 2025) either (1) the local plan must have been submitted for examination or (2) (if the emerging annual housing requirement is no more than 200 dwellings behind what the new policy figures would dictate) the plan must have at least reached Regulation 19 pre-submission consultation. In the case of (1), if the plan’s annual housing requirement is more than 200 dwellings behind what the new policy figures would dictate, the authority “will be expected to commence plan-making in the new plan-making system at the earliest opportunity to address the shortfall in housing need”. In the case of (2) the plan will need to proceed to examination within a maximum of 18 months from the publication date of the revised NPPF, so by, let’s guess, June 2026.

The Secretary of State has made it clear in her 31 July 2024 letter to local authorities that “where there is a significant gap between the plan and the new local housing need figure, we will expect authorities to begin a plan immediately in the new system” and that “local authorities will be expected to make every effort to allocate land in line with their housing need as per the standard method, noting it is possible to justify a lower housing requirement than the figure the method sets on the basis of local constraints on land and delivery, such as flood risk. Any such justification will need to be evidenced and explained through consultation and examination, and local authorities that cannot meet their development needs will have to demonstrate how they have worked with other nearby authorities to share that unmet need.”

The Secretary of State’s letter is also interesting for the warning:

“I will not hesitate to use my powers of intervention should it be necessary to drive progress – including taking over an authority’s plan making directly.”

I suspect she means it (and alternative options for revisions to the policy criteria for local plan intervention are set out in chapter 10 of the 30 July 2024 consultation document).

It will be interesting to see the extent to which all of this influences behaviour. Well-known local plans programme officer Helen Wilson subsequently suggested on LinkedIn that the Planning Inspectorate is “expecting over 120 plans to be submitted over the coming months”. That would be a surprisingly swift response to the emerging announcements.

Will many authorities really seek to proceed quickly to take advantage of the transitional arrangements? Unless they are already well-advanced, it may be challenging unless work is accelerated now during the consultation period itself and are many authorities going to risk that potentially abortive expenditure ahead of the outcome of the current consultation process? I suspect the temptation for many will be to wait it out. And the door has been smartly closed on ideas of rushing forward with a “quick and dirty” version to regulation 19 or submission, given the planning minister’s letter to the Planning Inspectorate, reversing the previous Government’s “expectation that Inspectors should operate “pragmatically” during local plan examinations to allow deficient plans to be ‘fixed’ at examination. This has gone too far and has perversely led to years of delays to local plan examinations without a guarantee that the plans will ever be found sound, or that the local authorities will take the decisions necessary to get them over the line. This has to end.

[…]

Pragmatism should be used only where it is likely a plan is capable of being found sound with limited additional work to address soundness issues. Any pauses to undertake additional work should usually take no more than six months overall. Pragmatism should not be used to address fundamental issues with the soundness of a plan, which would be likely to require pausing or delaying the examination process for more than six months overall. Local authorities should provide regular progress updates of their work to the Planning Inspector during any agreed pause.

Any extensions to the six-month pause should only be allowed at Inspectors’ discretion to deliver adopted local plans under the current system. In agreeing extensions, the Inspector should be confident that the local authority can complete any outstanding work in the agreed timeframe.

This new approach will apply to all plans with immediate effect. Existing pauses already agreed by an Inspector should remain in place unless the Inspector considers there is insufficient progress being made.

This will enable Inspectors to focus their valuable time and resources on those plans that are capable of being found sound and can be adopted quickly to provide certainty to local communities. Where a plan is unable to be found sound, the local authority will need to work in partnership with their local community to bring forward a new plan.”

The Planning Inspectorate’s chief executive responded in support but warned:

“It is inescapable that this fresh approach will lead to an increase in local plans being recommended for withdrawal from examination or being found unsound. But that should not be seen as any sort of failure of pragmatism or of the system more generally.”

What about the new local plans system that had been proposed and those long-established transition deadlines – June 2025 for submission, December 2026 for adoption? Chapter 12 of the 30 July 2024 consultation document addresses this, in part, in that the submission deadline is now pushed back until December 2026. Whilst, as set out in the consultation document, this has “the potential to benefit plans which are at earlier stages of preparation, and providing more time for local planning authorities to reflect on the revised NPPF and progress positive plans that will stand up to scrutiny”, I do have some concern that for a cynic within local government it is just another reinforcement of existing assumptions that these sorts of deadlines always end up being pushed back!

In my view the delay was inevitable. We have seen nothing further yet in relation to the “regulations, policy and guidance” promised by the previous Government although no doubt before long we will have consultation on the proposed national development management policies which will replace at least some of what is currently the subject of local plan making, leaving them to focus on numbers (within the narrower constraints of the revised NPPF when it is finalised), spatial planning and allocating specific sites for development. Will some of the more formal procedural changes set out in LURA be brought into effect or on reflection can equivalent improvements (for instance the early checks as to likely soundness) be made simply by policy rather than secondary legislation? And will we ever see LURA’s environmental outcomes reports system refined and brought into effect to replace and perhaps streamline the current strategic environmental assessment of plans? I don’t know the answer to these questions.

Finally, possibly beyond this round of local plans, we will of course be seeing the reintroduction of a formal strategic tier of plan-making but before that we have the proposed return of the duty to cooperate within the draft revised NPPF, and the announcement in chapter 3 of the consultation paper that the Government will “work in concert with Mayoral Combined Authorities to explore existing powers to develop [a spatial development strategy], which will not rely on primary legislation, and so allow us to get a head start. We intend to identify priority groupings of other authorities where strategic planning – and in particular the sharing of housing need requirements – would provide particular benefits, setting a clear expectation of cooperation that we would help to structure and support this, and to use powers of intervention where necessary”.

How can the Government seek to achieve the swift changes and “universal coverage” in plan making it is looking for, against all of this background? In my view only by keeping up the present pace, relentlessly emphasising the main themes in a way that is meaningful outside the technocratic world of planning professionals, providing local government with the necessary resources and tools (including advice where necessary) and continuing to make sure that all the detailed background preparation is in place.

Shame town and country planning isn’t any longer an Olympic sport isn’t it? It would be nice if we were in contention for that one.

Simon Ricketts, 11 August 2024

Personal views, et cetera

Should Appeal Costs Decisions Be More Widely Publicised?

…because surely much of their value lies in guiding participants in future appeals as to the conduct that is expected of them – whether appellants, local planning authorities or third parties?

Ironically, the thought occurred to me due to an unusual headline in yesterday’s Planning magazine update, Inspector awards costs against both housebuilder and objectors for ‘unreasonable behaviour’ after allowing 1,730-home appeal (30 May 2024, paywall). Following on from the news on 24 May 2024 that inspector Christina Downes had allowed Taylor Wimpey’s long-running appeal in relation to up to 1,730 dwellings and associated development at Wisley Airfield, Guildford, I hadn’t been aware of her decisions the same day in relation to an application for costs made by Wisley Action Group, Ockham Parish Council and RHS Wisley against Taylor Wimpey and an application for costs made by Taylor Wimpey against Wisley Action Group, Ockham Parish Council and RHS Wisley.

The inspector made a partial award of costs against Taylor Wimpey on the basis of an error in modelling contained in a transport assessment which was not addressed until it was the basis for cross-examination at the inquiry. The inspector found that the objectors were put to unnecessary expense identifying the error, preparing written notes and extra evidence, recalling their highway witness and preparing and delivering cross-examination which all took an extra inquiry day.

Going the other way, the inspector also made a partial award of costs against the objectors, finding that there had been “unreasonable behaviour in the following respects:

• In the ecology evidence insofar as it related to matters that had already been addressed by previous decision makers; and in raising issues about the surveys, other than in relation to bats.

• In the highway evidence insofar as it related to the difference between the TA and ES in respect of peak traffic flows.

• In the planning evidence insofar as it persisted in raising issues about the principle of the development, but the costs limited to the cross-examination of this point and its preparation.”

In the context of an inquiry which ran to (by my reckoning) 32 days this may all be small beer but is an interesting indication of the extent to which parties may be prepared to put the behaviour of their opponents under the microscope.

There is of course detailed Planning Practice Guidance as to the award of costs in planning appeals, the basic principle being that costs may be awarded, either on the application of any party or at the instigation of the inspector, where a party has behaved unreasonably and the unreasonable behaviour has directly caused another party to incur unnecessary or wasted expense in the appeal process. I often have to explain to clients that, no, they can’t cover their wider commercial losses caused by that unreasonable behaviour…

My colleague Jack Curnow ran a search of appeal decisions today – there have been around 93 costs award decisions in the last 12 months. How much more might we learn if the key findings were made available, in the way that the Local Government and Social Care Ombudsman provides a comprehensive database of its rulings?

A couple of other interesting costs decisions spotted in the wild (on LinkedIn that is):

  • First of all, as with that first costs award at Wisley, a reminder that a party may end up winning the appeal but being on the receiving end of an award of costs for unreasonable behaviour. On 16 May 2024 Bellway Homes lost a planning appeal for a proposed development of 148 dwellings in County Durham, but (perhaps small comfort) secured an award of costs against Durham County Council on the basis that it had not substantiated three of its reasons for refusal (on effect on countryside, unacceptable harm to the landscape and on design). In relation to the remaining reasons for refusal – on planning and transport, where the relevant LPA witnesses appear to have made significant concessions under cross-examination, there is an interesting passage:

“In my view, the concessions made by the sustainable transport and planning witnesses rather than being a deficiency in the Council’s case were the result of a series of subtly directed questions by a skilled advocate and the inability of the witnesses to grasp the direction of the examinations.  That said concessions made by witnesses are material considerations in concluding on a proposal and I did not ignore them.  However, as the decisionmaker, whether I am bound by them is not, in my view, a binary choice.  As the various examples of Case Law referred to show, I am entitled to bring to bear my own judgement, both as a planning professional and an Inspector, to weigh the written and oral evidence before me.  This is particularly so where, as in this case, the final decision turned on a matter of planning judgement i.e., whether the proposal represented sustainable development and the relevant witness’s failure to grapple with the basis of their own evidence.  In this context, despite the direction that the cross-examinations took the witnesses, I consider the Council was able to substantiate its case in relation to the second main issue, sustainability.  On this basis, I consider that, continuing the case in the face of the planning witness’s concessions, the Council did not act unreasonably.”

[Who might that “skilled advocate” be, Hashi…?]

  • Secondly, an example of an appeal in relation to non-determination of the application within the statutory period (in this case an appeal, which was allowed on 2 April 2024, for up to 540 dwellings and associated development at Yarnton, Oxfordshire, where both the local planning authority and county education and highways authority were the subject of full costs awards in favour of the appellant, through not having resolved matters, ultimately conceded in the immediate run-up to the inquiry, far earlier in the process.

From the award against Cherwell District Council:

“The concerns of the Council set out in the putative reasons for refusal should have been addressed early in the life of the application; some of them, in particular those relating to green infrastructure, could have been dealt with as conditions on a planning permission or as part of a planning obligation. The fact that all the objections were withdrawn by the Council prior to the opening of the inquiry demonstrates that there was nothing substantive in the Council’s reasons for refusal that could not have been agreed much earlier in the process. As it was, the applicant was forced to address these matters through an appeal, and to produce revised material and re-consult at the appeal stage. It had to produce evidence on the reasons for refusal and, given that this was an appeal against non-determination, it had to produce adequate evidence on all matters relevant to the planning application to enable the decision-maker to reach a decision.

Although costs can only be awarded in relation to unnecessary or wasted expense at the appeal, the behaviour and actions of the Council at the time of the planning application can be taken into account in the consideration of whether or not costs should be awarded. The Council acted unreasonably in its handling of the planning application and the application should not have needed to come to an appeal. The Council delayed development that should clearly have been permitted, failed to produce evidence that substantiated each putative reason for refusal, and issued putative reasons for refusal on grounds that were capable of being dealt with by planning condition or in an obligation. The Council’s unreasonable behaviour led the applicant to the unnecessary costs of an appeal with the consequent need to maintain an appeal team with legal representation and to produce evidence on a wide range of matters.

For the reasons given above, unreasonable behaviour resulting in unnecessary or wasted expense has occurred and an award of costs against Cherwell District Council is therefore warranted, covering all the costs relating to the appeal, with the exception of the two matters which are the subject of the costs claim against Oxfordshire County Council.”

From the award against Oxfordshire County Council:

“Costs should only be awarded against a third party in exceptional circumstances. In this case those circumstances exist. The County Council’s position was critical to the progress of the planning application and subsequent appeal because of its role as a main party to the s106 obligation, and it bears full responsibility for the delay and costs incurred in addressing the matters discussed above. The matter of the playing field access was capable of being addressed much earlier as part of the planning application if the County Council had taken a reasonable approach, and should never have had to come to appeal. The County Council did not defend its position at the inquiry. The request for a contribution for the Cassington Road to Peartree Interchange highways works should never have been made. The County Council behaved unreasonably in both respects and caused the applicant to incur unnecessary expense in addressing these issues in respect of legal representation, expert witnesses, the preparation of statements of case, proofs and rebuttals, and in having to seek information and prepare a legal opinion to inform the inquiry. A partial award of costs is therefore warranted.”

[NB the highways contribution point may be of wider interest: the county council had sought a contribution towards highways works “which were not dependent on the development and which had already been funded from the public purse and built”!]

Some other costs decisions this year that may be of interest:

  • An award in favour of Bellway Homes in relation to an appeal in Stroud, where planning permission was granted for 54 dwellings. In his decision letter dated 20 May 2024 the inspector awards costs against Stroud District Council largely through its failure to grapple properly with biodiversity net gain issues:

“In a large part, the reason for the appeal is because the Council failed to review, accept and liaise with the appellant on the Mitigation Hierarchy Review. In my view, this necessitated the submission of the appeal. In addition, the

Council’s lack of engagement added unnecessary time at the hearing and necessitated further time being given to the main parties to agree the wording of a Grampian condition after the close of the hearing.

I am cognisant that the position on the value of high value habitats has been clarified with the statutory metric coming into force and has confirmed the basis on which such units can be traded and that this has been a recent change that the Council has not been obliged to accept. However, given that the Council were not seeking to resist the principle of development, the absence of indication that the appellant had met the expectations of the hierarchical approach should have been provided at an earlier point in time to have paved the way for more meaningful negotiations on the mitigation package. This concession was only made at the hearing in person, with the written evidence still having largely maintained a defensive position.

In view of this, my conclusion is that the Council has behaved unreasonably, for reasons including its failure to determine a planning application based on an issue that was capable of being dealt with by condition and failing to review and clarify its case promptly following the lodging of an appeal.”

  • A full award of costs in favour of the promoter of a solar farm in Rayleigh. The appeal was allowed on 11 March 2024 and full costs were awarded against Rochford District Council. The decision to refuse the application had been made by members against officers’ recommendations. The inspector concluded:

“Overall, I consider that the Council has not produced relevant evidence at appeal stage to support their decision to refuse planning permission and has therefore delayed a development that should have been permitted, having regard to the development plan and other material considerations. It has also been inconsistent in its decision making. I therefore consider that the Council’s approach does represent unreasonable behaviour, and this has resulted directly in the need for this appeal.”

The council tried to make the case that it was difficult to find private sector consultants to support them. The inspector didn’t think much to that excuse!

“In the rebuttal to the cost claim it was suggested that it is difficult for members to provide a substantial evidence base as few consultancies will take on such work as it would be likely to lose them future work as they would be known as “Council lovers”. Whilst in my experience consultancies quite regularly support Council’s at appeal, even if that were the case this does not absolve the Council from the need to substantiate the reasons for refusal at appeal.”

  • Finally, a reminder to councils of the need to engage in pre-app discussions. An appeal in Mole Valley was dismissed on 28 February 2024, but with the appellant awarded its costs due to the council’s failure to engage at pre-application stage:

“In respect of the appellant’s attempt to engage with the Council at the pre-application stage, I note that the Council suspended these services due to resourcing limitations. Although not binding, this process, if it had been available, would have been an opportunity for the Council to raise any concerns at an early stage in respect of design, living conditions and affordable housing provision. The appellant, therefore, would have been well-informed and provided with the opportunity to amend the scheme as necessary.

The Council’s resourcing is not a matter for the appellant, who sought an effective, positive and pro-active approach at an early stage. Given that the Council has an established pre-application function, which was suspended for a time, and which did not allow the appellant to use it, amounts to unreasonable behaviour. This is my view, irrespective of the Council’s communications later in the process.

For the reasons given above, unreasonable behaviour resulting in unnecessary or wasted expense has occurred in respect of pre-application advice and a partial award of costs is therefore warranted.”

I could go on, and on. There are so many. There’s a lesson in each decision – whether as to how parties should behave or as to how the system itself, under-resourced as it is, may be failing us all. After all, perhaps penalising authorities with costs awards is simply adding to the resourcing problem – it certainly is if costs awards do not influence future behaviour. So as well as my suggestion that these decisions should be more widely publicised, I would go further: when an award is made against an authority and the amount of costs payable has been determined, by negotiation or following reference to a High Court costs judge, why shouldn’t authorities be under a duty to publicise to their members and to their local electorate the financial consequences of what has happened and why?

Simon Ricketts, 31 May 2024

Personal views, et cetera

Extract from photograph by Elena Mozhvilo courtesy of Unsplash

Two Apples: Bramley & Worcestershire

I hope you didn’t notice that there was no blog post last weekend. I really needed the clocks to go back again to give me enough time. Picking up the tablet and chisel a fortnight later is not easy.

So much to say!

Another planning minister bit the dust. I liked Iain Thomson’s quip on LinkedIn about 15 minute planning ministers – far more of a scourge than 15 minute cities.

As part of its ongoing market study into housebuilding the Competition and Markets Authority has published on 15 November 2023 two further working papers, on landbanks and planning rules. To quote from the press release:

“On land banks, the CMA’s analysis has found that, although land equivalent to over a million plots is held in landbanks, in most local areas that land is held by several different builders. The CMA is seeking feedback on this analysis, and in particular, whether local competition is being negatively impacted in the small number of areas where large amounts of developable land are controlled by a small number of housebuilders.

The CMA is continuing to examine the size of land banks overall, recognising that housebuilders need to hold a pipeline of land as sites pass through the planning system. The conclusions of this analysis will be published in the final report.”

“On planning, the CMA has developed options that the UK, Scottish and Welsh governments may consider when reforming their planning systems, including:

Whether a zoning or rules-based approach to development may help improve competition between housebuilders and boost housing delivery.

Making better use of councils’ limited time and resources by requiring them to only consult statutory stakeholders, rather than a wider group, as part of their assessment of planning applications. Late consultee responses on development could also be ignored.

Having an effective housing target which reflects the housing need of specific areas, and improving the ways governments ensure all councils have a proper local plan in place.”

Yep, another set of helpful suggestions as to planning reform.

But I wanted to step back from the politics and just shine a torch on two useful recent planning law cases. And to save myself from too much chiselling, all I am going to do is to point you to the following case summaries put out by those involved:

First of all, a summary by No 5 Chambers’ Thea Osmund-Smith and Odette Chalaby of R (Bramley Solar Farm Residents Group) v Secretary of State (Lang J, 15 November 2023).

In the context of a challenge by local residents to an inspector’s decision to allow an appeal for a solar farm and battery storage scheme in Hampshire, the judgment covers a number of practical issues such as:

  • Where an environmental statement is to be updated at the appeal stage, can the appellant carry out the publicity and consultation process? Yes.
  • Can a party choose not to call a witness, despite having submitted that witness’ proof of evidence to the inquiry? Yes.
  • Does the Government’s Planning Practice Guidance on renewable and low carbon energy impose a requirement to consider alternatives where solar farms use best and most versatile agricultural land? No. Consideration of alternative sites will only be relevant to a planning application in “exceptional circumstances”.

Secondly, a summary by Landmark Chambers of NRS Saredon Aggregates Limited v Secretary of State and Worcestershire County Council (Eyre J, 16 November 2023), a case in which Landmark’s Jenny Wigley KC appeared for the successful claimant. Eyre J quashed an inspector’s decision refusing planning permission for a sand and gravel quarry in the green belt, on the basis that the inspector made a legal error in relation to the weight to be applied to the biodiversity net gain (BNG) that would arise from the project. To quote from the summary:

“It was agreed at the inquiry that the scheme would deliver over 39% BNG. The Inspector afforded ‘only moderate weight’ to this on the basis that “some of the biodiversity net gain that would be achieved is required to meet national policy and future legislative requirements in order to mitigate the environmental impact of the development”.

The High Court agreed with the Claimant that the Inspector’s judgement as to weight was affected by a mistaken view as to requirements of forthcoming legislation. Because there was no basis for considering that the legislation might be retrospective, it was plainly not applicable to the scheme to be determined:

“The effect of that interpretation is that when assessing the weight to be attributed to the biodiversity net gain for the purposes of assessing whether there were very special circumstances outweighing the harm to the openness of the Green Belt the Inspector reduced the weight on the basis of a mistaken view as to the law. He did so believing incorrectly that some of the net gain would be required in any event by reason of the forthcoming legislation. That was an error of law and meant that the Inspector exercised his planning judgement as to the weight to be given to that material consideration (namely the net gain) on a basis that was wrong in law.”

The case is a useful way of reminding decision makers that there is, as yet, no legal requirement for 10% biodiversity net gain. The relevant provisions in the Environment Act 2021 have yet to come into force and, when they do (in January, we’re now told), the requirement will only apply to new applications submitted on or after that date. There is a policy requirement in the NPPF for biodiversity net gain, but only that such gain should be positive, i.e above zero, and there are also varying policy requirements in some Local Plans, but still no legal requirement. In emphasising benefits of development proposals, it is useful to stress the degree of BNG being offered and, for all applications already in the system, it is worth pointing out that any degree of BNG goes above and beyond legal requirements and should be afforded due weight accordingly.”

Two reminders that the courts are often more useful than politicians in clarifying how important practical aspects of the planning system should work.

Another fact to note:  in the NRS Saredon case, all four counsel were female. In the Bramley case, three of the five counsel were female, as well as of course the judge.

As always, these cases, together with any others handed down last week by the Planning Court or on appeal from the Planning Court, will feature in our Town Library Planning Court Judgments weekly update and you can subscribe for free at the link.

Simon Ricketts, 18 November 2023

Personal views, et cetera

Pic courtesy of Thiva via Unsplash