The House of Commons and House of Lords both rise on 22 July 2021 and are due to return on 6 September 2021, which means that each year this week and next we always see many documents published and announcements made. Much festivity.
This week last year the Planning White Paper was eagerly awaited of course but ran late, eventually being published in the first week of August. At one stage we had expected an update by the Government on progress by now, including its response to last year’s consultation process but Robert Jenrick announced back at the beginning of the month that we will not see this until the Autumn and there will be no Bill until some time after that. (For a summary of MHCLG’s current priorities, see his 6 July 2021 speech to the Local Government Association, or indeed Nicola Gooch’s 16 July 2021 blog post on the speech).
But there have already been various other announcements and publications and in this post I will just pick randomly from them, Quality Street style.
Of particular interest is the Department for Transport’s Transport Decarbonisation Plan (14 July 2021) which sets out the road map (no, wrong expression) for reducing transport’s greenhouse gas emissions to net zero. It is a turbo-charged (no, wrong expression), “high ambition”, plan covering all modes of transport. There is a wide-ranging series of commitments over 220 pages of text.
What is there that directly refers to the planning system? Aside from confirmation that the Government will be reviewing the National Networks National Policy Statement, there is a wider commitment to “embed transport decarbonisation principles in spatial planning and across transport policymaking“. Pages 156 to 160 address this in detail and I am going to no more than set out below large sections of this section:
“…The planning system has an important role to play in encouraging development that promotes a shift towards sustainable transport networks and the achievement of net zero transport systems.
Traffic issues have often caused opposition to housebuilding. There is a legacy of developments that give people few alternatives to driving, are difficult to serve efficiently by public transport and are laid out in ways which discourage walking and cycling. Developments which are planned to minimise car use, promote sustainable transport choices, and are properly connected to existing public transport could help make new building more publicly acceptable.
The National Planning Policy Framework (NPPF) makes clear we already expect sustainable transport issues to be considered from the earliest stages of plan-making and development proposals, so that opportunities to promote cycling, walking and public transport are pursued. Planning policies should already provide for high quality cycling and walking networks and supporting facilities such as cycle parking (drawing on Local Cycling and Walking Infrastructure Plans). The NPPF also outlines that new developments should promote sustainable transport, taking opportunities to promote walking, cycling and public transport. However, while many local plans already say the right things, they are not always followed consistently in planning decisions. Developments often do little or nothing meaningful to enable cycling and walking, or to be properly and efficiently accessible by public transport. Sometimes they make cycling and walking provision worse. We can and must do better.
Last summer, the Government set out its vision for a new and improved planning system in the Planning for the Future White Paper, a vision to make good on the Government’s pledge to build back better, build back faster and build back greener. The White Paper set out how the planning system is central to our most important national challenges, including combating climate change and supporting sustainable growth.
A reformed planning system can assist in achieving the ambition of a zero emission transport future. The planning reforms will provide an opportunity to consider how sustainable transport is planned for and importantly how it is delivered to support sustainable growth and drive more sustainable use of our existing built environment e.g. planning for new development around existing transport hubs, for all developments to be easily and safely accessible and navigable by foot and cycle, and to make existing cycling and walking provision better. Through good design and proper consideration of the needs of our communities, we can better connect people, making communities more accessible, inclusive, safe, and attractive as well as promoting the principles of 20-minute neighbourhoods. We are working with the Ministry of Housing, Communities & Local Government and the Local Government Association to place cycling, walking and public transport provision at the heart of local plan making and decision taking for new developments. In doing so, we recognise the particular challenges faced by rural and remote areas in this regard, and will work, including through the upcoming Future of Transport: Rural Strategy, to ensure policies recognise differing geographies.
The National Model Design Code sets out a process for developing local design codes and guides, with supporting design guidance on movement and public spaces including streets. It outlines an expectation that development should consist of a well-connected network of streets with good public transport and an emphasis on active travel modes including walking and cycling. Building on this, we will also ensure that an updated Manual for Streets aligns with these principles and is routinely used for plan making and decision taking to secure better outcomes for our streets and public realm. These documents can play a key role in delivering high quality, accessible, secure and safe cycle storage. We will work with Active Travel England and other key stakeholders to ensure that the importance of securing high quality cycling and walking provision is embedded within the planning system.
We recognise that the Government has a role in helping Local Planning and Highways Authorities to better plan for sustainable transport and develop innovative policies to reduce car dependency. We need to move away from transport planning based on predicting future demand to provide capacity (‘predict and provide’) to planning that sets an outcome communities want to achieve and provides the transport solutions to deliver those outcomes (sometimes referred to as ‘vision and validate’). We will continue to work with MHCLG to identify how we can best support local authorities to develop innovative sustainable transport policies as part of the planning process, how this can be used to better assess planning applications, and better monitor local transport outcomes to deliver on our ambitions for sustainable transport use.
Achieving these ambitions will require a long-term collective effort across government, local authorities, communities, businesses, and developers. We are exploring with MHCLG how the planning system can be designed to facilitate better collaboration and planning for growth across local authority boundaries, with all key stakeholders involved, to ensure that we align that growth with both strategic and local infrastructure delivery to make good on our manifesto commitment to put infrastructure first and drive growth sustainably.”
“New ‘County Deals’ to take devolution beyond the largest cities, offering the rest of England the same powers metro mayors have gained over things like transport, skills and economic support.
County Deals will be bespoke to the needs of individual places, bringing decisions closer to people and places, potentially allowing more places to benefit from strong, high profile local champions. County Deals will give places the tools they need to pilot new ideas, create jobs, drive growth and improve public services.
Further detail will be set out in the Levelling Up White Paper, but as the Prime Minister set out, county deals will not be one size fits all, and government will take a flexible approach to allow more places to agree devolution.”
“We are […] encouraging councils to use Compulsory Purchase Orders (CPOs) for long-term empty properties and where property owners are stalling regeneration plans. We want to:
• Ensure councils have the right Compulsory Purchase Order enabling powers to support the transformation of high streets and other regeneration projects so that they can acquire vacant and derelict buildings in order to attract new private investment.
• Ensure as part of our planning reforms that Compulsory Purchase Orders can support more effective land assembly to facilitate the development of growth areas identified in the new-style local plans, particularly when they support town centre regeneration.
• Strengthen the capacity and support for local authorities to ensure they are able to use these new Compulsory Purchase Order powers and rights to support the transformation of high streets.”
As regards the conversion of high streets to homes, the following passage was eyebrow raising. So how would this work with the operation of permitted development rights then? And the provision of “green infrastructure” a justification for development intensification?
“Where high streets are being repurposed for homes, green infrastructure and improved public space should be integral. We will explore how reforms to the planning system can ensure green infrastructure is better incorporated into new development. Development of homes, businesses and community space could be intensified on parts of sites to free up land for green infrastructure provision.”
And just to keep practitioners on their toes, there was the Planning Inspectorate’s announcement Plans to resume in-person events (15 July 2021). In one part of the policy forest there’s the transport decarbonisation plan, in another part, brmm brmm, off we go back to in person inquiries from 13 September:
“For hearings and inquiries taking place from 13 September we will be reverting to the pre-pandemic approach of them being arranged by local authorities. In-person events will be possible, but where participants (including the inspector) need to present their evidence or participate virtually this will need to be facilitated by the local authority.
Where in-person elements are planned, the local authority will need to be prepared for the event to be held fully virtually in case pandemic restrictions change.”
Let’s see what more announcements the coming week brings…
Simon Ricketts, 16 July 2021
Personal views, et cetera
This week’s clubhouse Planning Law Unplanned session (6pm Tuesday 20 July) is on the theme “A Green Recovery”: what does it mean; what opportunities? Lucy Wood (Barton Willmore) will lead the session, which will take a good hard look at the government’s green policy agenda (including the transport decarbonisation plan) and what it means for business, councils and communities, alongside special guests including Neil Collar (Brodies) and others still to be confirmed. An invitation to the app and event is here.
The idea for this blog post started by way of a search we did this week for inspectors’ appeal decision letters that take into account the economic and other effects arising from the current pandemic.
There does not seem to have been any proper analysis on that at present (and this post doesn’t fill the gap!). Instead most people’s focus has been on the specific legislative measures that have been introduced by the Government and its narrow policy exhortations (for instance in relation to limited aspects of the CIL regime).
Before I turn to that appeals search, can I say two more things on the legislative changes.
⁃ introduction from 6 April 2021 of a requirement that dwellings created by way of the operation of permitted development rights must meet the nationally described space standard
⁃ Prohibition on the demolition of any building is used, or was last used, for the purpose of a concert hall, venue for live music performance or theatre. (“This permanent change is to protect these venues, preventing their unnecessary loss as a result of having to close due to the coronavirus pandemic.” As a trustee of the Theatres Trust I am particularly pleased to see this now in legislation, following the initial ministerial statement on 14 July 2020).
Secondly, I covered the Rights: Community: Action judicial review of the previous recent GPDO and Use Classes Order changes in my 5 September 2020 blog post Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR. That claim was rejected by Lewis LJ and Holgate J last week in R (Rights: Community: Action) v Secretary of State (Divisional Court, 17 November 2020). There are plenty of other summaries of that judgment and there is nothing particularly novel about it but I was interested in the references to the evidence submitted by MHCLG as to the Covid-19 factors that led to the legislation being introduced in the form and way that it was, and the weight that was given to these matters in the judgment:
“Mr Simon Gallagher is the Director of Planning for MHCLG. In paragraph 10 of his witness statement he states that during the period January to March 2020 the first patients in the UK tested positive for Covid-19 and the first transmissions in the UK were confirmed. He says that the pandemic “has generated an economic emergency and upheaval of a scale and intensity not previously known in peacetime.” He continues by stating that, as a consequence, the Government has had to intervene urgently in the economy as a whole in unprecedented ways in order to avert or minimise potentially very severe and long term impacts on the lives of citizens and the prospects for future economic growth. Forecasts for economic growth were reduced substantially. Indeed, one key forecast made in summer 2020 predicted a reduction in the economy for 2020 of 9.9% (paragraph 13). Through regular discussion with representatives of the housing and construction sectors, the MHCLG became aware of particular difficulties faced by the construction sector as a result of the pandemic. There was a record monthly decline of 40.2% of construction output in April 2020. Whilst the output of that sector had increased in May, June and July, it was still 11.6% lower in July 2020 compared with February 2020 (paragraph 14).
On 20 July 2020 a submission was put to the Minister for Housing asking him to approve the three statutory instruments. The submission records that it had been decided that in order to support economic renewal and regeneration and to respond to the economic crisis caused by the pandemic, additional PD rights for the redevelopment of vacant buildings for residential purposes and a broad Use Class of business, commercial and service uses would be introduced without consultation (paragraphs 2 to 3). The Minister’s attention was drawn to criticisms that the recently enacted PD right for allowing the addition of 2 storeys to blocks of flats lacked any requirement for the provision of affordable housing (paragraph 7). The submission referred to the same point when discussing the application of the PSED to the proposed statutory instruments (paragraph 10). The PSED assessments and impact assessments for each statutory instrument were provided to the Minister.
The Explanatory Memoranda for SI 2020 No. 755 and SI 2020 No. 756 stated that the new PD rights were being introduced to speed up the delivery of housing, reduce the need to develop on greenfield land and to support economic recovery from the pandemic by encouraging development. The Explanatory Memorandum for SI 2020 No. 757 stated that the UCO 1987 was being amended to better reflect the diversity of uses found on high streets and in town centres, to provide flexibility for businesses to adapt and diversify to meet changing demands and to help town centres recover from the economic impact of the pandemic.”
The judges had in part to consider whether the lack of a further consultation stage, which had been previously intended in relation to some of the measures, was justified:
“The explanatory memorandum for the draft SI 2020 No 755 and SI 2020 No. 757 again summarised briefly the degree of support for, and opposition to, the proposal, and the concerns that had been raised. The explanatory memorandum for the draft SI 2020 No 756 referred to the consultation responses and noted that there was to have been a further consultation but it had been decided to introduce the PD right without further consultation in order to support economic regeneration. It noted that the Government had considered the range of matters to be left to planning authorities for prior approval while maintaining a simplified planning system. In those circumstances it is not arguable that the defendant failed conscientiously to consider the consultation responses. The decision on whether to proceed, and if so what provisions to include in the SIs, in the light of the consultation responses and other relevant matters were questions for the defendant to determine.”
The judges, did not consider that the Government had acted unlawfully in not carrying out further consultation:
“First, the defendant has established that there were good reasons for departing from the promise in the present case and not having a second consultation on the proposals for PD rights for demolition of commercial or residential buildings and rebuilding for residential use. The coronavirus pandemic had led to severe economic difficulties including a reduction in the rate of construction and planning applications. The government decided to grant the PD rights in order to stimulate regeneration at a time of great economic difficulty arising out of the pandemic. That appears from the terms of the explanatory memorandum to SI 2020 No. 576.The matter is fully explained in the witness statement of Mr Gallagher who refers to the large-scale public health emergency created by the coronavirus pandemic which in turn generated an economic emergency and upheaval on a scale not previously known in peacetime. The Government had sought to intervene in the economy in unprecedented ways to minimise the very severe effects of the pandemic. In the light of that, the decision was taken in favour of urgent action rather than further consultation.
Secondly, the reasons are proportionate in the circumstances. On the one hand, the decision to depart from the promise deprived the public of the opportunity of making further representations on the proposed PD rights and deprived the Government of further, potentially helpful, input into the policy decision. On the other hand, the economic situation was grave. The grant of PD rights was intended to encourage developers to start the process of taking steps to carry out developments. That in turn would contribute to addressing the economic effects arising out of the pandemic. That was a proportionate course of action in the circumstances. It is correct that developments could not be begun until prior approval of certain matters had been obtained. But the aim was to stimulate the process of development in circumstances of economic urgency. It is correct that the PD rights would continue after the end of the current pandemic (unless amending legislation is enacted) but that does not render departure from the promise of further consultation disproportionate. It is correct that there was a proposal to create PD rights which involved further consultation. But circumstances had changed because of the pandemic. The reasons given for departing from the promise of further consultation were good and were proportionate.”
The economic situation is indeed “grave”!
So how are inspectors responding to it in their appeal decisions, and in the absence of any general guidance from Government which might for instance have advised decision makers to give additional weight to the interests of economic development and the provision of housing? JLL’s Asher Ross drew attention on LinkedIn last week to the Government’s publication on 18 November 2018 of the latest Planning Inspectorate Statistics. I haven’t delved into them yet but reproduce below a table that Asher posted, showing the reduced percentage of appeals that have been allowed over a period when I would have hoped to see exactly the opposite.
One trend that is apparent from the appeal decisions is in the context of enforcement appeals, where a longer period is frequently being given for compliance because of difficulties residents may have finding alternative accommodation due to the pandemic, although not always – in a recent decision in Ealing the inspector held that the nature of the “cramped and sub-standard living conditions“ was such as to outweigh that consideration (10 Torrington Gardens, 17 November 2020).
An appeal in relation to a proposed single dwelling in the countryside in Horsham District was dismissed in part because the inspector accepted the concerns of a nearby dog kennel business that the construction noise could affect the health of their dogs and indirectly affect the business economically if it had to close during this period, especially when considered in conjunction with the downturn in business they had generally suffered due to the coronavirus pandemic (The Mount, Ifield, Crawley, 27 July 2020).
An appeal in relation to five proposed flats in Cambridge was dismissed with the inspector noting that, although the appellant claimed that there was a need to promote economic growth as a result of the Covid -19 pandemic, this did not justify allowing harmful development (Mere Way, Cambridge, 1 October 2020).
An appeal to allow changes to proposed dwelling layouts in Eastbourne was allowed. Whilst the nationally described space standard was breached for a three bedroom home, the inspector placed weight on the need for a ”home office”, noting Covid-19 – a separate room was recognised as useful also for homework and hobbies, noting the “open plan” living room layout at present (land south of Langney shopping centre, 10 September 2020).
An appeal in relation to three proposed self build dwellings in Breckland was dismissed, with the inspector noting that there was little substantive evidence to demonstrate the longer term effects of Covid 19 on housing delivery rates or that that these developments would not be deliverable over the five year period , rather than just delayed (land to the north east of Fakenham Road, Beetley, 9 September 2020).
An appeal in relation to the proposed redevelopment as 27 residential apartments of the Flapper and Firkin music venue in Birmingham was dismissed. Whilst the venue had closed in January 2020 and therefore the minister’s July 2020 statement on preventing the loss of such venues was not directly relevant, the inspector concluded that the community harm arising from the loss of the venue outweighed the social and economic effects of the new homes (Flapper and Firkin, Kingston Row, Birmingham, 2 September 2020).
An appeal in relation to 216 proposed new homes in Wokingham district was rejected, with the inspector not accepting the appellant’s case that the assumed housing supply should be reduced by almost 500 dwellings due to the effects of the pandemic. He considered that the pandemic’s impact would be short-term and that five-year supply would recover (land east of Finchampstead Road, Wokingham, 25 August 2020).
An appeal in relation to a proposed staff car park in connection with a hotel in North Somerset was dismissed, the inspector considering that approval would not significantly contribute towards the economic recovery of the hotel business (Doubletree by Hilton Bristol South Cadbury House, 17 August 2020).
There are earlier appeal examples as well, but with equivalent themes and none that I could see were allowed with any weight given to Covid-19 considerations.
A proper analysis of the patterns emerging would be useful. For instance, how should the effects of the pandemic be taken into account in assessing whether there is five years’ supply of housing land? Is any Government advice required as to particular issues, such as live-work accommodation? Is any temporary advice required on enforcement issues, and on deadlines for compliance? Should Government for instance encourage a liberalised approach in relation to particular types of proposals, with shorter implementation deadlines for permissions approved in that way?
Simon Ricketts, 21 November 2020
Personal views, et cetera
Thank you to my Town colleague Lida Nguyen for the appeal searches, carried out via Compass Online.
Why at the moment do ministers conclude so often that they have to reject their inspectors’ recommendations in relation to planning proposals and major infrastructure projects?
Something is clearly wrong when there can be a hugely expensive, time consuming inquiry or examination, followed by a lengthy, considered and reasoned report, only for the decision letter to arrive at a different balance. Is it the fault of inspectors? Has Government not communicated its up to date policy priorities? Are these decisions driven by political convenience? The problem is that we don’t get to find out – the minister’s decision is inevitably as bland as bland, with differences cloaked by “legal cover” explanations as to the different weight applied to particular considerations. Is it any wonder that the losing party so frequently then embarks on a legal challenge?
Anglia Square, Norwich
Yesterday (13 November 2020), Robert Jenrick issued his decision letter refusing, against his inspector’s recommendations, a called in application for planning permission in relation to the proposed development at Anglia Square, Norwich of “up to 1250 dwellings, hotel, ground floor retail and commercial floorspace, cinema, multi-storey car parks, place of worship and associated works to the highway and public realm areas”. The proposal included a 20 storey tower. Inspector David Prentis had held an inquiry over 15 days in January and February 202, providing his 206 page report to the Secretary of State on 6 June 2020. Russell Harris QC appeared for the applicant (Weston Homes and others), Tim Corner QC appeared for Norwich City Council and Historic England (represented by Guy Williams), Save Britain’s Heritage (represented by Matthew Dale-Harris), the Norwich Society and the Norwich Cycling Campaign were all rule 6 parties.
Why was the inspector’s recommendation not accepted?
“The Secretary of State has carefully considered the Inspector’s assessment at IR468- 469 of the building typologies proposed, and their height. While he recognises that there has been an effort to place the taller buildings within the site rather than on the edges, the Secretary of State considers that the bulk and massing of the built form proposed is not sympathetic to its context. In particular, he is concerned that the frontage to St Crispins Road would include 8, 10 and 12 storey buildings, and he finds, like the Inspector at IR607, that Block F, which would have frontages to Pitt Street and St Crispins Road, would appear strikingly different and unfamiliar, to an extent that would cause harm. The Secretary of State also concurs with the advice of Design South East as quoted in the evidence of Historic England (IR269 and IR474) that:
“with blocks of over 10 storeys, it is only in comparison with the tower that these could be considered low rise, and in the context of the wider city they are very prominent. These blocks are not just tall, but also very deep and wide, creating monoliths that are out of scale with the fine grain of the surrounding historic urban fabric”
He “finds that the tower would be of an excessive size in relation to its context, and does not demonstrate the exceptional quality required by Policy DM3(a).”
The Secretary of State “disagrees with the Inspector on the scale of the heritage benefits of the proposal set out in IR542, specifically the second bullet given his concerns over the design of the proposal. Taking account of the wider heritage impacts of the scheme as set out in paragraphs 27 to 59 of this letter, the Secretary of State disagrees with the Inspector and finds that, while the benefits of the scheme are sufficient to outweigh the less than substantial harm to the listed buildings identified at IR536-540, when considered individually, they do not do so when considered collectively, given the range and number of heritage assets affected, and given the increased harm found in comparison to the Inspector. He therefore finds, like the Inspector, that the proposals would conflict with policy DM9. He has also found conflict with elements of policies JCS1 which states that heritage assets, and the wider historic environment will be conserved and enhanced through the protection of their settings, and conflict with elements of policy DM1 which states that development proposals will be expected to protect and enhance the physical, environmental and heritage assets of the city.”
“Overall the Secretary of State concludes that the benefits of the scheme are not sufficient to outbalance the identified ‘less than substantial’ harm to the significance of the designated heritage assets identified at IR536-537 and in paragraphs 27-59 above. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.”
Yesterday (12 November 2020) Grant Shapps overturned the examining authority’s recommendation and confirmed the A3030 Stonehenge DCO. The examining authority comprised no fewer than five inspectors (Wendy McKay, Alan Novitzky, David Richards, Ken Taylor and Edwin Maund).
Why was their recommendation rejected?
“ It is the ExA’s opinion that when assessed in accordance with NPSNN, the Development’s effects on the OUV of the WHS, and the significance of heritage assets through development within their settings taken as a whole would lead to substantial harm [ER 5.7.333]. However, the Secretary of State notes the ExA also accepts that its conclusions in relation to cultural heritage, landscape and visual impact issues and the other harms identified, are ultimately matters of planning judgment on which there have been differing and informed opinions and evidence submitted to the examination [ER 7.5.26]. The Secretary of State notes the ExA’s view on the level of harm being substantial is not supported by the positions of the Applicant, Wiltshire Council, the National Trust, the English Heritage Trust, DCMS and Historic England. These stakeholders place greater weight on the benefits to the WHS from the removal of the existing A303 road compared to any consequential harmful effects elsewhere in the WHS. Indeed, the indications are that they consider there would or could be scope for a net benefit overall to the WHS [ER 5.7.54, ER 5.7.55, ER 5.7.62, ER 5.7.70, ER 5.7.72 and ER 5.7.83].”
“Ultimately, the Secretary of State prefers Historic England’s view on this matter for the reasons given [ER 5.7.62 – 5.7.69] and considers it is appropriate to give weight to its judgment as the Government’s statutory advisor on the historic environment, including world heritage. The Secretary of State is satisfied therefore that the harm on spatial, visual relations and settings is less than substantial and should be weighed against the public benefits of the Development in the planning balance.”
See also his overall conclusions at paragraphs 80 to 86.
Again, as with Anglia Square, the position of Historic England proved influential, as was that of the National Trust and other bodies.
A legal challenge from campaigners appears inevitable.
On 9 July 2020 Grant Shapps also overturned the examining authority’s recommendation and confirmed the Manston Airport DCO. The examining authority comprised four inspectors (Kelvin MacDonald, Martin Broderick, Jonathan Hockley and Jonathan Manning).
The proposals would permit the reopening and development of Manston Airport, enabling it to become a dedicated air freight facility handling at least 10,000 air cargo movements each year, with the offer of some passenger, executive travel, and aircraft engineering services.
Why was the examining authority’s recommendation to reject the proposals not accepted?
“For the reasons above, the Secretary of State disagrees with the ExA’s recommendation to refuse development consent. As set out above in paragraphs 20 and 21, the Secretary of State considers there is a clear case of need for the Development and this should be given substantial weight. He considers the Development would support the government’s policy objective to make the UK one of the best-connected countries in the world and for the aviation sector to make a significant contribution to economic growth of the UK and comply with the Government’s aviation policy that airports should make the best use of their existing capacity and runways, subject to environmental issues being addressed. Substantial weight is given by the Secretary of State to the conclusion that the Development would be in accordance with such policies and that granting development consent for the Development would serve to implement such policy. The Secretary of State also considers that there are significant economic and socio-economic benefits which would flow from the Development, which should also be given substantial weight.
The Secretary of State accepts that there is the potential for short term congestion and delays on the local road system caused by the Development to occur before appropriate mitigation is delivered; however, he considers that the residual cumulative impacts would not be severe and gives limited weight to these effects. He concludes that the need and public benefits that would result from the Development clearly outweigh the heritage harm and the harm that may be caused to the tourist industry in Ramsgate. The Secretary of State also concludes that with the restrictions imposed by him in the DCO and also through the UUs only limited weight should be given to noise and vibration adverse effects.
For the reasons set out in paragraphs 24-26 above, the Secretary of State is content that climate change is a matter that should be afforded moderate weight against the Development in the planning balance. He does not agree with the ExA that operational matters weigh moderately against the grant of development consent being given for the Development.
The Secretary of State is content that the impacts of the Development in terms of air quality [ER 8.2.28 – 8.2.43]; biodiversity [ER 8.2.44 – 8.2.62]; ground conditions [ER 8.2.76 – 8.2.82]; landscape, design and visual impact [ER 8.2.104 – 8.2.120]; and water resources [ER 8.2.219 – 8.2.227] are of neutral weight in the decision as to whether to make the DCO.
When all the above factors are weighed against each other either individually or in- combination, the Secretary of State is satisfied that the benefits outweigh any adverse impacts of the Development.”
An objector, Jenny Dawes, has challenged the decision. Her crowdfunding page gives some basic information.
The claim was filed on 20 August and was granted permission by the High Court on about 14 October to proceed to a full hearing. It doesn’t seem that a hearing date has yet been set. The barristers are Paul Stinchcombe QC, Richard Wald QC and Gethin Thomas.
Norfolk Vanguard offshore windfarm
On 1 July 2020 Alok Sharma overturned the examining authority’s recommendation and confirmed the Norfolk Vanguard offshore windfarm DCO. The examining authority comprised four inspectors (Karen Ridge (Lead Member), Caroline Jones, Gavin Jones and Grahame Kean).
Why was their recommendation to reject the proposals not accepted?
“The Secretary of State notes that the ExA determined that consent should not be granted for the proposed Development because of potential impacts on habitats and species afforded protection under the Habitats Directive. In determining that it was not possible on the basis of the information available to it to rule out an AEoI on two sites protected by the Directive – the Flamborough and Filey Coast Special Protection Area and the Alde-Ore Estuary Special Protection Area – the ExA concluded that the proposed Development would not be in accordance with NPS EN- 1 and could not therefore be granted consent.
However, in other respects, the ExA concluded that, while there would be impacts arising from the proposed Development across a range of issues (including on local landscape and traffic and transport), those impacts were not of such significance or would be mitigated to such a degree as to be not significant as to outweigh the substantial benefits that would derive from the development of a very large, low carbon, infrastructure project. The ExA notes that, if one set aside the conclusion on Habitats-related issues, then in all other matters, the proposed Development would be in accordance with the National Policy Statements and national policy objectives. This conclusion was subject to some clarification on specific points, including mitigation proposals.
As is set out elsewhere in this submission, in light of the ExA’s Report to the Secretary of State, the Secretary of State consulted a range of parties including the Applicant about the Habitats-related issues and other relevant matters that had been raised in the ExA’s Report. On Habitats, further information on potential bird impacts such that the Secretary of State is now able to conclude that, on balance, there would be no Adverse Impact on Integrity for the Flamborough and Filey Coast Special Protection Area and the Alde-Ore Estuary Special Protection Area.
The Secretary of State notes that there were a range of views about the potential impacts of the Development with strong concerns expressed about the impacts on, among other things, the landscape around the substation, traffic and transport impacts and potential contamination effects at the site of the F-16 plane crash. However, he has had regard to the ExA’s consideration of these matters and to the mitigation measures that would be put in place to minimise those impacts wherever possible. The Secretary of State considers that findings in the ExA’s Report and the conclusions of the HRA together with the strong endorsement of offshore wind electricity generation in NPS EN-1 and NPS EN-3 mean that, on balance, the benefits of the proposed Development outweigh its adverse impacts. He, therefore, concludes that development consent should be granted in respect of the Development.”
Lang J granted permission on 2 July 2020 in relation to a crowdfunded legal challenge brought by an objector, Ray Pearce.
Drax Power Station Re-Powering Project
These DCO overturn instances are of course not new. On 9 October 2019 Alok Sharma overturned the examining authority’s recommendation and confirmed the Drax Power Station Re-Powering Project DCO. A challenge to the decision failed: ClientEarth v Secretary of State (Holgate J, 22 May 2020).
Nor of course are such instances new when it comes to planning appeals and call-ins.
Might I suggest that a review be carried out as to why they are occurring so often?
The following is a summary prepared by my Town colleagues Victoria McKeegan, George Morton Jack and Meeta Kaur. I will leave any commentary as to the implications for another week.
The Bill contains temporary provisions to facilitate the extension of the duration of certain planning permissions and listed building consents. This ensures that relevant permissions and consents will remain extant, enabling development to commence following delays caused by Covid-19. As well as extending the time limit for permissions and consents expiring between enactment of the new provisions and 31 December 2020, these measures also have retrospective effect, facilitating the revival of permissions which expired since 23 March 2020, subject to an ‘additional environmental approval’. The local planning authority may only grant such approval if it is satisfied that EIA and habitats assessments remain up to date. In all cases, the time limits for commencing development are extended until 1 April 2021.
The Bill introduces a fast-track planning application process for the temporary variation of both planning conditions limiting construction site working hours and documents approved pursuant to planning condition containing such limitations. The fast-track process is facilitated through a requirement for the local planning authority to respond to the application within 14 days from the day after submission, and deemed approval in the event of no response.
The Bill also introduces measures introducing flexibility for the Planning Inspectorate to use more than one of the procedures to determine planning appeals in-combination. Appeals could take a hybrid form, combining elements of written representations, hearings and planning inquiries.
The final planning measure affords the Mayor of London temporary flexibility to make the London Plan available for inspection by appropriate electronic means, rather than having to make copies available for inspection at the Greater London Authority’s offices and to distribute copies when requested.
The Regulations amend permitted development rights (“PDR”) – the rights under the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO) that effectively grant planning permission for specific types of development with no need for a planning application, although subject to prior approvals from the local planning authority (LPA) – and certain advertising and other regulations.
The principal changes to PDR are:
o a new requirement for provision of adequate natural light where PDR are exercised for changes of use to housing. This provision relates specifically to all habitable rooms, and is intended to improve the quality of homes delivered under existing PDR for changes of use to housing;
o new PDR for temporary use of land, including temporary use of land by developers for any purpose subject to several restrictions (with this right in force from 25 June 2020 to 31 December 2020), and by local authorities for holding a market (with this right in force from 25 June 2020 to 23 March 2021);
o new PDR for construction of new homes on detached blocks of flats, where the permitted development consists of works for construction of up to two additional storeys of new dwellinghouses (meaning flats for this new PDR), immediately above purpose-built detached block of flats of three or more above-ground storeys. This new PDR permits various related works including reasonably necessary engineering works to construct the additional storeys and the new flats, and is subject to several restrictions.
The PDR amendments also include some minor, more technical or clarificatory updates to the GPDO.
The Regulations include some minor amendments to advertising and compensation regulations.
The Regulations come into force in two stages: first, on 25 June 2020 (including changes to PDR for temporary use of land); and second, on 1 August 2020 (including changes to PDR for residential development).
1.1 Part Three of the Bill relates to planning. This main section 1 provides a brief summary of those planning matters.
Automatic extension of planning permissions
1.2 The Bill introduces three new sections to the TCPA 1990 on a temporary basis up until 1 April 2021. New section 93A modifies any condition attached to a planning permission imposing a time limit for the commencement of development which is due to expire between the day on which the enabling provision of the Business and Planning Act (the “Act”) comes into force and 31 December 2020. The time limit for the commencement of development is automatically extended to 1 April 2021.
1.3 New section 93B has the same effect as section 93A (extending the time period for implementation until 1 April 2021) for any planning permission subject to a condition that the development must be commenced by a time falling between 23 March 2020 and the day on which the enabling provision of the Act comes into force, if an ‘additional environmental approval’ is granted or deemed to be granted in respect of that permission. As such, it is section 93B which creates retrospective effect, effectively reviving planning permissions which expired during the lockdown period (subject to ‘additional environmental approval’).
1.4 As regards the ‘additional environmental approval’, an application must be made to the local planning authority and contain sufficient information to enable it to determine whether approval should be granted . There is provision for deemed approval of the application within 28 days (or a longer agreed period) if the local planning authority does not issue its decision within this period. The local planning authority may only grant approval if the ‘EIA and habitats requirements’ are met. The EIA requirement is met if either the development is not EIA development or the development remains the subject of an up-to-date EIA assessment. The habitats requirement is met if the development would not presently require an appropriate assessment (if planning permission were being granted for the development now) or, if it would, the development was previously subject to assessment which ascertained that the development would not adversely affect the integrity of a European site / offshore marine site and the local planning authority is satisfied that the assessment remains up to date.
1.5 An ‘additional environmental approval’ is absolute and may not be granted subject to condition. Further, no ‘additional environmental approval’ may be granted following 31 December 2020, unless granted on an appeal lodged on or before that date. There is a right of appeal against a refusal of an ‘additional environmental approval’.
Automatic extension of outline planning permissions
1.6 The Bill introduces further new sections to the TCPA 1990 in relation to outline planning permissions, which have similar effect to those mentioned above in relation to full planning permissions. Again, the new sections are introduced on a temporary basis up until 1 April 2021.
1.7 New section 93D modifies any condition attached to an outline planning permission that imposes a time limit for the submission of an application for approval of any reserved matter which falls between 23 March 2020 and 31 December 2020. The time limit for submission of such applications is extended to 1 April 2021.
1.8 New sections 93E and 93F have the same effect as new sections 93A and 93B, but apply in relation to outline planning permissions. They extend the time period by which development must be begun to 1 April 2021 for those outline planning permissions due to expire between the date on which the enabling provision of the Act comes into force and 31 December 2020. Further, the extension of time for implementation and the ‘additional environmental approval’ process is the same as for full planning permissions in the case of outline planning permissions which expired between 23 March 2020 and the date that the relevant enabling provision of the Act comes into force.
Automatic extension of listed building consents
1.9 The Bill introduces a new section 18A to the Planning (Listed Buildings and Conservation Areas) Act 1990. This modifies any condition attached to a listed building consent which imposes a time limit for the commencement of works which expires between 23 March 2020 and 31 December 2020. The time limit for commencement in such cases will be extended to 1 April 2021. Again, the temporary modifications expire on 1 April 2021.
1.10 The Secretary of State may make regulations to extend the time periods set out in these new sections facilitating the automatic extension of planning permissions and listed building consents, along with their expiry date.
Modification of conditions relating to construction working hours
1.11 The Bill introduces three new sections to the TCPA 1990 in order to facilitate a new fast-track application process for the temporary variation of planning conditions relating to construction site working hours. The Explanatory Notes to the Bill state that the new process is designed to enable the facilitation of safe construction working practices in line with social distancing guidance issued by the Government. The fast-track process expires on 1 April 2021.
1.12 New section 74B applies to planning permissions which impose a condition specifying the times during which construction activities may be carried out or where a similar restriction is contained in a separate document approved by a local planning authority pursuant to a planning condition. It allows an applicant to apply to modify the restrictions imposed either by way of condition of approved document so as to allow construction activities to be carried out for a longer period than permitted on a particular day or on a day which is currently not permitted.
1.13 The application must specify the date from which it is proposed that the modifications should take effect which can be no earlier than the end of the period of 14 days from the day after submission of the application. Such an extension may only be for a temporary period not extending beyond 1 April 2021.
1.14 New section 74C provides that the local planning authority can approve the application, refuse the application or determine, with the agreement of the applicant, different modifications or alternative dates during which they will have effect. There is provision for deemed approval of the application if the local planning authority does not respond within a period of 14 days from the day after submission of the application, hence this being termed a ‘fast-track’ process. There is a right of appeal against refusal of an application under the new procedure.
Procedure for certain planning proceedings
1.15 The Bill amends the power of the Secretary of State to determine which procedure (i.e. written representations, hearing or local inquiry) should be adopted in various appeal proceedings. The amendments effectively facilitate a combination of these proceedings and are permanent. They are described in the Explanatory Notes as providing flexibility for a Planning Inspector to use more than one procedure to determine planning appeals which is required to enable the Planning Inspectorate to deal with cases quickly and effectively during the coronavirus pandemic. However, they are also described as providing ‘ongoing efficiencies to the work of the Planning Inspectorate’. The amendments apply to section 319A(2) of the TCPA 1990, section 88D(2) of the LBC Act and section 21A(2) of the Planning (Hazardous Substances) Act 1990.
Electronic inspection of spatial development strategy
1.16 The Bill temporarily modifies the effect of section 43 of the Greater London Authority Act 1999 until 31 December 2020. Section 43 of the GLAA requires the Mayor of London to take steps to give adequate publicity to various strategies and to make the current versions available for public inspection at the GLA’s offices, as well as provide copies where requested. The amendments apply solely in relation to the Mayor’s spatial development strategy, namely the London Plan. In respect of the London Plan, the Bill removes the requirement to make the current version of the London Plan available for inspection and to provide copies if a copy of the current version of the strategy is available for inspection free of charge by appropriate electronic means.
1.17 The Bill provides that the permission extension changes would come into force 28 days after the Act is passed, the construction site working hours proposal would come into force six days after the Act is passed, while the appeal procedure flexibility and GLAA amendments would come into force on the day on which the Act is passed.
1.18 MPs will next consider all stages of the Bill in one day on Monday 29 June 2020. The Government is aiming for it to pass into law by 4 July 2020.
2. THE REGULATIONS
2.1 This main section 2 provides a brief summary of the Regulations’ amendments.
Definitions of “dwellinghouse” and “flat” (Regulation 3, in force on 1 August 2020)
2.2 Regulation 3 updates article 2 of the GPDO’s definitions of “dwellinghouse” and “flat” applying to the new “Class A” PDR (“New dwellinghouses on detached blocks of flats”) in Schedule 2, Part 20 of the GPDO (which is introduced by Regulation 22, for which see the comments below on Regulation 22).
Extension of determination period for prior approval applications (Regulation 4, in force on 1 August 2020)
2.3 Regulation 4 amends article 7 of the GPDO (“Prior approval applications: time periods for decision”). It allows an applicant and an LPA to agree a period longer either than 8 weeks for the authority to determine prior approval applications, or than a time period otherwise specified in the GPDO.
New prior approval fee (Regulation 5, in force on 1 August 2020)
2.4 For the existing PDR “Enlargement, improvement or other alteration of a dwellinghouse” (GPDO Schedule 2, Part 1, Class A), in relation to development of certain dwellinghouses where prior approval is required for a larger single storey rear extension, there is a new a prior approval fee (which is set out in the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012).
Additions to roof of a dwellinghouse (Regulation 6, in force on 1 August 2020)
2.5 For the PDR “additions etc to the roof of a dwellinghouse” (GPDO Schedule 2, Part 1, Class B), in relation to alteration of a house’s roof, a rear or side extension now includes an original projection or a subsequent extension of the house that extends from the rear or side of the principal part of the original house.
Limit on new PDR for new dwellinghouses (Regulations 5 to 12, in force on 1 August 2020)
2.6 Regulations 5 to 12 amend PDR under Schedule 2, Part 1 of the GPDO.
2.7 They operate to limit the new “Class A” PDR (“New dwellinghouses on detached blocks of flats”) in Schedule 2, Part 20 of the GPDO (for which see our comments below on Regulation 22).
2.8 Regulations 5 to 12 ensure that a new home built under that new “Class A” PDR cannot use PDR under Schedule 2, Part 1 of the GPDO (“Development within the curtilage of a dwellinghouse”).
2.9 They do so in relation to the following classes in Schedule 2, Part 1:
(a) Class A – Enlargement, improvement or other alteration of a dwellinghouse;
(b) Class B – additions etc to the roof of a dwellinghouse;
(c) Class C – other alterations to the roof of a dwellinghouse;
(d) Class D – porches;
(e) Class E – buildings etc incidental to the enjoyment of a dwellinghouse;
(f) Class F – hard surfaces incidental to the enjoyment of a dwellinghouse;
(g) Class G – chimneys, flues etc on a dwellinghouse; and
(h) Class H – microwave antenna on a dwellinghouse.
Adequate natural light in homes (Regulations 13 to 19 and 27, in force on 1 August 2020)
2.10 To improve the quality of homes delivered under existing PDR for changes of use to housing, the Regulations introduce a new requirement for provision of adequate natural light in all habitable rooms (defined as “any rooms used or intended to be used for sleeping or living which are not solely used for cooking purposes, but does not include bath or toilet facilities, service rooms, corridors, laundry rooms, hallways or utility rooms”).
2.11 This requirement applies to development under the following change of use classes under Schedule 2, Part 3 of the GPDO:
(a) Class M – retail, takeaways and specified sui generis uses to dwellinghouses;
(b) Class N – specified sui generis uses to dwellinghouses;
(c) Class O – offices to dwellinghouses;
(d) Class PA – premises in light industrial use to dwellinghouses; and
(e) Class Q – agricultural buildings to dwellinghouses.
2.12 The new requirement for provision of natural light involves, as part of the prior approval application process, mandatory submission to the LPA of design details, in a floor plan indicating the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the elevations of the dwellinghouses. Further (under Regulation 18), “the local planning authority must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses”.
2.13 Regulation 27 has transitional provisions accounting for where developers, as of 1 August 2020, have already submitted a prior approval application in respect of Classes M, N, O, PA and Q as above. These transitional provisions ensure that any such applications submitted before 1 August 2020 will be determined in accordance with PDR in force before that date. Regulation 27 also covers certain circumstances where a developer may, after 1 August 2020, continue to rely on the PDR in force before that date.
2.14 The same requirement for provision of natural light in respect of Classes M, N, O, PA and Q as above applies to the new “Class A” PDR in Schedule 2, Part 20 of the GPDO, for which see our comments below on Regulation 22.
Additional temporary use of land (Regulation 20, in force on 25 June 2020)
2.15 Regulation 20 creates a new PDR for “additional temporary use of land” (as the new “Class BA” in Schedule 2, Part 4 of the GPDO). This new right permits temporary use of land for any purpose.
2.16 There are the following additional points to note in relation to use of land under the new right:
(a) the right is in addition to use under the existing Schedule 2, Part 4, Class B PDR for temporary use of land;
(iii) the right includes the right to place on the land any moveable structure (such as a stall or a marquee) for the purposes of the permitted use;
(b) any use of land for any purpose must be for not more than 28 days in total during the period 1 July 2020 to 31 December 2020; of those 28 days, no more than 14 days in total may be for the of (i) holding a market, (ii) motor car and motorcycle racing including trials of speed, and practising for these activities;
(c) development is not permitted if the land in question is a building or is within the curtilage of a listed building; if the use of the land is for a caravan site; if the land is, or is within, a site of special scientific interest and the use of the land is for: (i) motor car and motorcycle racing including trials of speed or other motor sports, and practising for these activities; (ii) clay pigeon shooting; or (iii) any war game, or if the use of the land is for the display of an advertisement;
(d) the right will cease to have effect from 1 January 2021.
PDR for local authority markets (Regulation 21, in force on 25 June 2020)
2.17 The Regulations introduce a new PDR “Class BA” to part 12 of Schedule 12 of the GPDO, for local authorities to use land for holding a market (including provision of any moveable structure related to the market use). This PDR lasts until 23 March 2021.
PDR for Construction of new homes on detached blocks of flats (Regulation 22, in force on 1 August 2020)
2.18 This PDR follows from the MHCLG consultation “Planning Reform: Supporting the high street and increasing the delivery of new homes” (October 2018).
2.19 The Regulations introduce a new PDR to Schedule 2 of the GPDO inserting a new Part 20 Class A. It allows development consisting of works for construction of up to two additional storeys of new dwellinghouses (which means flats for this new PDR), immediately above purpose-built detached block of flats of three or more above-ground storeys.
2.20 It also permits, in connection with this, the following works:
(a) reasonably necessary engineering works to construct the additional storeys and the new flats;
(b) replacement of existing or installation of additional rooftop plant reasonably necessary for the new flats;
(c) Construction of safe access and egress including additional external doors or staircases to escape fire;
(d) Construction of storage, waste or other ancillary facilities reasonably necessary for the new flats.
2.21 There are limitations on these connected works, as well as a significant number of other limitations which render the PDR unavailable, including those in the following list. Hence, development is not permitted if:
(a) the permission to use any building as a dwellinghouse was granted by PDRs set out in any of classes M, N, O, P, PA or Q of the GPDO, which are those that permit changes of use from various uses to residential (and includes the contentious office to residential PDRs);
(b) the building was constructed before 1 July 1948 or after 5 March 2018 (the latter being the date on which the government first announced its intention to introduce the upward extension PDR);
(c) the extended building would be greater than 30m high;
(d) it does not comply with limitations on floor to ceiling heights of the additional storeys and the overall height of the roof of the extended building;
(e) the site on which the building is located is or forms part of a conservation area, National Park, AONBs, or SSSI, a listed building or a scheduled monument or land within their curtilage.
2.22 The PDR is also conditional on a number of matters which include the following:
(a) before beginning the development prior approval must be sought as to the following impacts: transport and highways, air traffic and defence assets, contamination and flooding risks, external appearance, provision of adequate natural light in all habitable rooms and amenity of existing and neighbouring buildings including overlooking, privacy and loss of light and impacts on protected views.
(b) the development must be completed within 3 years and the LPA must be notified of completion;
(c) a report must be submitted to the LPA setting out how the construction will be managed.
2.23 There is a specific procedure set out for applications for prior approval for this PDR which includes a list of information that must accompany the application and the bodies that must be consulted on for the purposes of the specified impacts (see (a) above). The LPA must publicise the application by way of site notice and notice to owner/occupiers of the existing building and neighbours.
2.24 It is worth noting that applications must be accompanied by detailed plans that show (amongst other things) the position of the windows and doors and the LPA must refuse prior approval if adequate natural light is not provided in all the habitable rooms.
2.25 The LPA can require further information in order to determine the application which may include assessments of impacts or risks or how those may be mitigated having regard to the NPPF. When determining the application the LPA must have regard to representations received in response to consultation and the NPPF so far as is relevant to the prior approval application, in the same way as if it were a planning application.
2.26 The LPA must determine a prior approval application within 8 weeks but unlike some other PDRs there is no deemed approval if the LPA fails to issue a decision within that period. There is however a right of appeal for non-determination. The development must not begin before prior approval is received and must be carried out in accordance with the approved details. Prior approval can be granted unconditionally or subject to conditions reasonably related to the subject matter of the approval.
2.27 The new flats may only be used for Class C3 residential purposes and do not benefit from any of the existing PDRs for dwellinghouses in Part 1 of the GPDO.
2.28 This new PDR can be withdrawn (by way of a direction under article 4 of the 2015 Order), and as a result the Regulations amend “The Town and Country Planning (Compensation) (England) Regulations 2015” so as to limit a LPA’s compensation liability in the event it issues an article 4 direction.
2.29 The Planning Practice Guidance may yet be updated to reference this new PDR but no update has been issued at the time of writing. CIL will be payable on the new floorspace and, in accordance with the existing PPG, a LPA can require planning obligations, but the PPG currently requires that these should be limited to matters requiring prior approval and should not for example seek contributions for affordable housing.
Advertising (Regulations 23 and 24, in force on 1 August 2020)
2.30 Regulations 23 and 24 amend the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 in order to correct the Town and Country Planning Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019. They do so by means of inserting definitions of “electronic communications apparatus”, “electronic communications service” and “telephone kiosk”.
Compensation (Regulations 25 and 26, in force on 1 August 2020)
2.31 See the comments above on the Town and Country Planning (Compensation) (England) Regulations 2015 in relation to Regulation 22.
2.32 The Explanatory Memorandum to the Regulations notes in relation to the new PDR for homes on detached blocks of flats (Regulation 22) that “Government also intends to introduce further permitted development rights for building upwards, including for new and bigger homes”.
The continuing to-do about Secretary of State’s admission of “apparent bias” in the Westferry Printworks case got me thinking about other apparent bias cases and the overlap with the right to a fair hearing – basically as an excuse to mention this week’s startling case from the Supreme Court, Serafin v Malkiewicz (Supreme Court, 3 June 2020). All the cases in this bias/unfair hearing area have a gossipy, “you need to have been there”, feel to them, and there are lessons in all of them for all decision-makers.
After all, for all the constant chatter about the rights and wrongs of our planning system, at its very root it needs to be fair, and seen as fair. Aside from a being fundamental principle of our legal system, the right to a fair hearing in front of an independent and impartial decision maker is also given force by way of Article 6 of the European Convention on Human Rights:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”
Serafin v Malkiewicz
Serafin v Malkiewicz is nothing to do with planning law. It concerns a libel action brought by a litigant in person who found himself against not so much the barrister on the other side but against the judge, Jay J (yes, really, non-lawyers, Jay J). He lost, badly. The Supreme Court judgment, by Lord Wilson attaches a schedule of extracts from the hearing in front of Jay J, which make truly excruciating reading – really and truly, an object lesson in how not to preside over any sort of hearing, let alone in relation to a litigant in person for whom English was not his first language. Imagine an inspector behaving in such a way.
The Supreme Court did not treat the issue in the case as one of potential apparent bias but as to whether the hearing had been fair. It referred to the distinction between the two principles, as described by Hildyard J in M&P Enterprises (London) Limited v Norfolk Square (Northern Square (Northern Section) Limited (High Court, 12 October 2018, namely that whereas “the fairness of a trial required objective judicial assessment, the appearance of bias fell to be judged through the eyes of the fair-minded and informed observer”.
“… it is far from clear that the observer would consider that the judge had given an appearance of bias. A painstaking reading of the full transcripts of the evidence given over four and a half days strongly suggests that, insofar as the judge evinced prejudice against the claimant, it was the product of his almost immediate conclusion that the claim was hopeless and that the hearing of it represented a disgraceful waste of judicial resources.”
“… when one considers the barrage of hostility towards the claimant’s case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven, with profound regret, to uphold the Court of Appeal’s conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair. Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented. It was ridiculous for the defendants to submit to us that, when placed in context, the judge’s interventions were “wholly justifiable”.”
The Court of Appeal had similarly concluded that the hearing had been unfair but had only concluded that part of the case be heard again. The Supreme Court went further:
“Lord Reed observed during the hearing that a judgment which results from an unfair trial is written in water. An appellate court cannot seize even on parts of it and erect legal conclusions upon them. That is why, whatever its precise meaning, it is so hard to understand the Court of Appeal’s unexplained order that all issues of liability had, in one way or another, been concluded. Had the Court of Appeal first addressed the issue of whether the trial had been unfair, it would have been more likely to recognise that the only proper order was for a retrial. It is no doubt highly desirable that, prior to any retrial, the parties should seek to limit the issues. It is possible that, in the light of what has transpired in the litigation to date, the claimant will agree to narrow the ambit of his claim and/or that the defendants will agree to narrow the ambit of their defences. But that is a matter for them. Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full retrial.”
Porter v Magill
The classic articulation of the apparent bias test is by Lord Hope in Porter v Magill (House of Lords, 13 December 2001): the “question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.
Porter v Magill was of course part of the Lady Porter/Westminster City Council “homes for votes” saga. An auditor, John Magill, had been appointed to consider whether “three councillors and three officers had, by wilful misconduct, jointly and severally caused a loss of approximately £31m to the council which they were liable to make good.”
One of the councillors’ grounds of appeal against Mr Magill’s findings of the auditor, John Magill, was on the basis of apparent bias evidenced by the manner in which, ahead of his full inquiry, he had announced his provisional findings:
“A televised announcement was arranged at which the auditor himself appeared and, although he said that his views were provisional, he expressed them in florid language and supported them by reference to the thoroughness of the investigation which he claimed to have carried out. There was a further feature of the event which should have had no place in the middle of a quasi-judicial inquiry. A stack of ring binders on the desk at which the auditor sat bearing the name of his firm for the benefit of the cameras was, ostensibly, under the protection of a security guard: unless it was being implied that the persons under investigation might wish to steal the documents, it is not clear what was the purpose of this posturing.”
The court did not accept that there was apparent bias. In the words of Lord Hope:
“I think that it is plain…that the auditor made an error of judgment when he decided to make his statement in public at a press conference. The main impression which this would have conveyed to the fair-minded observer was that the purpose of this exercise was to attract publicity to himself, and perhaps also to his firm. It was an exercise in self-promotion in which he should not have indulged. But it is quite another matter to conclude from this that there was a real possibility that he was biased…. The auditor’s conduct must be seen in the context of the investigation which he was carrying out, which had generated a great deal of public interest. A statement as to his progress would not have been inappropriate. His error was to make it at a press conference. This created the risk of unfair reporting, but there was nothing in the words he used to indicate that there was a real possibility that he was biased. He was at pains to point out to the press that his findings were provisional. There is no reason to doubt his word on this point, as his subsequent conduct demonstrates. I would hold, looking at the matter objectively, that a real possibility that he was biased has not been demonstrated.”
Turning to a case with greater similarities to the Westferry Printworks situation, in Broadview Energy Developments Limited v Secretary of State (Court of Appeal, 22 June 2016) the Court of Appeal deprecated informal lobbying attempts by MPs, in that case Andrea Leadsom MP’s attempts to stop a wind farm scheme, with a conversation in the Commons tea-room and numerous emails from her to the minister, including one referring to her “badgering [him] in the lobby”. Longmore LJ in that case indicated that he “would not endorse that part of the judge’s judgment [at first instance] in which he said that lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP with its implication that such lobbying was permissible even when the Minister is making a quasi-judicial decision in relation to a controversial planning application. MPs should not, with respect, be in any different position from other interested parties.”
The court’s deprecation fell short of determining that the decision was as a result unlawful. On the specific question of bias:
“Nor do I think it arguable that a well informed observed would consider that there was a real possibility of bias on the part of Mr Hopkins. The well-informed observer would know that it was the responsibility of the relevant Minister to make difficult decisions about controversial projects such as on-shore wind farms. He would also know that sometimes such decisions are, as this one was, finely balanced. He would not think that a Minister’s decision in favour of a vocal body of local objectors supported by their local MP showed any bias against the promoter of the wind farm project. He would accept that the Minister had to make a decision one way or the other and think that the parties should accept the outcome.
Nevertheless the accusation of bias made in this case shows how important the principle is that Ministers making planning decisions should not allow themselves to be lobbied by parties to the planning process or by local MPs. If they do allow it, accusations of bias are all too easily made however unjustified they may be once the proper principles exemplified by Magill v Porter  2 AC 357 are applied.”
Turning from the position of ministers to that of inspectors:
Turner v Secretary of State (Court of Appeal, 11 June 2015) was a case where an objector to the proposed redevelopment of the Shell Centre, on London’s south bank, argued that the inquiry inspector had been biased in the way that he had dealt with his case at the inquiry, alleging, as set out in the judgment, that the inspector had curtailed his evidence and submissions and had made adverse procedural rulings.
In determining whether the inspector had acted inappropriately, the Court set out the approach to be followed as follows:
“The notional fair-minded observer would appreciate a number of aspects of the present context: (i) an inspector’s role has a strong inquisitorial dimension, investigating matters in a way which will enable him to report helpfully to the relevant decision-maker, the Secretary of State; with that end in view, it is fair and appropriate for an inspector to seek to focus debate at an inquiry by making interventions to ensure that he is provided with material to assist him in his task; (ii) an inspector has to manage efficiently the conduct of an inquiry within a limited time-frame and involving a range of parties wishing to give evidence, make submissions and participate in cross-examination of witnesses; this may require robust case management in the interests of all participants; (iii) an inspector is entitled to expect, and may legitimately seek to encourage, focused questioning and short and focused answers in the course of cross-examination of witnesses; (iv) the inquiry process provides an inspector with relevant information through a range of media, including written opening statements, examination of plans and the making of detailed closing submissions, as well as through the evidence of witnesses (both by witness statement and orally in cross-examination), and an inspector is expected to have done a good deal of preparation before an inquiry commences and is entitled to seek to focus debate on particular issues in the form which is most likely to provide clarity about what is at stake and assistance for him in writing a report; and (v) as part of his inquiry-management function, and to encourage a focus on what is most likely to assist him in his reporting task, an inspector is entitled to give indications in the course of an inquiry of points which appear to him to be unrealistic or bad and to require concentration on what appear to him to be the real substantive points of contention or where continued debate will be most helpful to him. It is of course possible that an inspector may go too far in robust inquiry management or in closing down debate, so as to give an appearance of bias. But given the expectation that an inspector should be actively managing the inquiry process to ensure that it is efficient, effective and fair to all interested parties, it will be a rare case, as Woolf J observed, in which it is likely that robust inquiry management will be found to have done so.
Another part of the context is the guidance issued by the Planning Inspectorate in the form of “The Inspector’s Code of Conduct”. This sets out principles of conduct for inspectors. Amongst other things, they “should make their decisions and recommendations fairly and in the public interest”; “should not be fettered with pre-determined views and should not judge cases before they have considered the evidence”; “should not be influenced by irrelevant considerations or outside influences when making their decisions and recommendations”; “should avoid unnecessary delay in reaching their decisions and recommendations”; and “should treat each person with dignity and respect”, behaving “at all times with courtesy, patience and understanding, whilst at the same time ensuring that cases are conducted efficiently and effectively.” This guidance is designed to promote best practice. It does not in itself create the standard by which an appearance of bias is to be judged. For example, a lapse in courtesy or patience on the part of an inspector in the course of an inquiry will not in itself give an appearance of bias in the requisite sense. A good deal more than that would be required: cf HCA International Ltd v The Competition and Markets Authority  EWCA Civ 492, in which even a serious element of actual unfairness of treatment of the appellant by the relevant public authority, which misled the appellant at one stage about an aspect of its inquiry, was found not to create an appearance of bias or pre-determination such as to prevent the same personnel in that authority from making a re-determination of matters in contention. (So that we are not misunderstood, and in fairness to the Inspector in the present case, we should add that on the limited evidence which is available we are not persuaded that he behaved discourteously to Mr Turner or anyone else at the inquiry).”
The court dismissed the appeal: “None of the matters relied on by Mr Turner, whether taken individually or together, indicate that there was a real possibility that the Inspector was biased. The Inspector acted properly and without giving any appearance of bias according to the relevant test in Porter v Magill.”
Turner was applied in Satnam Millennium Limited v Secretary of State (Sir Duncan Ouseley, 8 October 2019). Satnam challenged the decision by the Secretary of State, on the recommendation of his inspector, to dismiss an appeal in relation a large development proposal in Warrington. Whilst the judge upheld the challenge on other grounds, he rejected a submission that the inspector had showed apparent bias in the way that he conducted the inquiry, as well as the site visit. Again the judgment is a good read as to the facts, particularly paragraphs 112 to 189. Extracts from the PINS manual for inspectors are at paragraphs 190 to 194 and the general legal principles are set out at paragraphs 195 to 206. The judge’s detailed conclusions, in which he rejects the various complaints, are at paragraphs 229 to 254. There are some interesting pointers as to the conduct of hearings and inquiries and as a cheerful point to end on…
Humour is not forbidden:
“The grumbling from Mr Griffiths about a resident giving her evidence in song, followed by the quick interchange over giving evidence in dance and northern humour, rather illustrated my concern about where he was pitching his concern. This was but a moment of light heartedness, essentially initiated by the witness, and briefly responded to by the Inspector. Some Inspectors might have kept silent; but there is nothing in this at all. Not all judges or counsel are humourless automatons either. Although it would avoid some problems if Inspectors were, it could create others at an Inquiry with feelings running high and large numbers of the public attending. This was all very much part of a legitimate judgment about how to run a difficult Inquiry in those venues, with the facilities, and participants there were.”
“I accept that there would have been an impression of familiarity with individuals to whom [the inspector] had spoken on a daily basis, but that does not contrast with how he spoke to the other participants; they were not ignored, their greetings, if any, dismissed. “Banter” is very much in the eye and ear of the beholder. I am not prepared to regard any of it as indicative of possible bias.”
Reading these various cases again, and thinking again about Westferry Printworks, doesn’t so much of this come down to common sense and the facts of each situation rather than the application of any difficult legal concepts? The courts may be surprisingly reluctant at times to intervene (which makes so telling the Serafin ruling, as well as the decision of the government legal department not even to seek to contest Westferry) but decision makers should know what’s not right and, equally importantly, what doesn’t look right.
Validation and determination of applications for planning permission
No changes have been made to the timescales for determining planning applications. Developers are however encouraged to agree extensions of the period for determination. Local authorities have been urged to give priority to validating urgent COVID-19 related applications for planning permission and associated consents.
Publicising applications for planning permission
Temporary regulations (expiring on 31 December 2020) were made and came into force on 14 May to supplement existing publicity arrangements for planning applications, listed building consent applications and environmental statements for EIA development. There is now flexibility to take other reasonable steps to publicise applications and environmental statements if the usual specific requirements cannot be discharged relating to site notices, neighbour notifications, newspaper publicity or availability of hard copy documents. Steps can include the use of social media and electronic communications and they must be “proportionate to the scale and nature of the development”. Guidance has also been issued on this topic.
MHCLG has made it clear that planning conditions should not be a barrier to allowing developers and site operators flexibility around construction site working hours to facilitate safe working. Where only short term or modest increases in working hours are required, LPAs are encouraged to use their discretion to not enforce against a breach of working hours conditions. Where longer term measures or other significant changes are required, applications to amend conditions should be made, which LPAs should prioritise and turn around in 10 days. Requests to work up to 9 pm Monday to Saturday should not be refused without very compelling reasons.
Community infrastructure levy
The existing CIL regulations of course allow charging authorities limited flexibility to defer CIL liability. Amendments will be made to the regulations “in due course” to increase flexibility, but that will still depend upon charging authorities deciding to exercise the new discretion available to them. Authorities will be able to defer payments, temporarily disapply late payment interest and provide a discretion to return interest already charged. However, these changes will only apply to small and medium-sized developers with an annual turnover of less than £45 million. It remains to be seen how this limitation will be addressed in the regulations, for example where a special purpose vehicle, potentially offshore, has assumed liability. The new instalment policies for deferred payments will only apply to chargeable development starting after the changes come into effect, but they are anticipated to apply to “phases“ of the development starting after that date. The announcement on 13 May added that “existing flexibilities and the government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate, they will not be charged extra for matters that were outside of their control.”
Section 106 planning obligations
Local planning authorities are encouraged to consider the deferral of section 106 obligations, e.g. financial payments. This will require variations to existing section agreements and undertakings. Local planning authorities are encouraged generally to take a “pragmatic and proportionate” approach to the enforcement of section 106 planning obligations
PINS issued a further update on 13 May. Site visits are being commenced and PINS is considering whether there are types of cases that can proceed without a site visit. The first digital appeal hearing took place on 11 May as a pilot and PINS is aiming for 20 further examinations, hearings and inquiries in May and June. It is also exploring hybrid options – a mix of in person and by video public/telephone hearings and is considering “social distance” events.
MHCLG is working on ways to address the local plans process in order to meet aspirations to have all local plans in place by 2023. In particular, the use of virtual hearings and written submissions is being considered.
Regulation 12 of the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 prevents any neighbourhood planning referendum from taking place until 6 May 2021. Updated guidance was issued in April allowing neighbourhood plans awaiting referendums to be given significant weight in decision making.
Nationally Significant Infrastructure Projects
The government is working with consenting departments to support the continuation of decision-making to minimise the impact of current restrictions on the consideration of DCO applications and the Planning Inspectorate has updated its guidance.
Compulsory purchase orders
There is now pragmatic advice as to the service of documents. Acquiring authorities are encouraged to allow more time for responses to requests for information about interests in land or submitting objections to CPO. There is also encouragement to authorities to act responsibly regarding business and residential claimants, particularly regarding the timing of vesting orders and payment of compensation, which is particularly relevant when considering evictions. Authorities are reminded of their obligation to make advance payments of compensation in accordance with statutory time limits given cash flow difficulties which claimants may currently face.
To my mind, this is all welcome and congratulations are due in particular to the relevant civil servants. Of course, there is more to be resolved, for instance the vexed question of extending time limited planning permissions (see my 4 April 2020 blog post Pause Not Delete: Extending Planning Permissions) as well as the Regulations in relation to CIL, but it is good to see this progress. No wonder MHCLG’s Simon Gallagher was prepared to come on this week’s Have We Got Planning News For You!
“We are continuing to issue decisions where we can and 1,625 have been issued across all case types since lockdown restrictions started. Not being able to visit sites and hold public events has, however, clearly had an impact on our ability to process cases and the time it is taking to reach a decision.
As explained in our guidance, to limit the spread of the Coronavirus we have postponed site visits up to the middle of May, as well as most hearing and inquiry physical events where these would otherwise have taken place in May. Our case officers have notified parties of event postponement until further notice. We will be issuing updated information on arrangements for postponed events as soon as practicable in line with latest government advice.
We have been able to progress cases where:
• the physical event was concluded prior to lockdown restrictions;
• no physical event is required to make a decision; or
• a physical event is still further in the future and preparatory activity can continue (e.g. via telephone case conferences).
New cases continue to arrive at normal levels and are being registered and processed as far as possible. As at 23 April, there were 9,591 open cases. In the last three weeks we have seen the number of open cases rise by 337.”
(It is encouraging, in passing, to note that appeals are still being made at normal levels – that is our experience too).
The Planning Inspectorate is anxious to reassure that it is moving quickly to catch up:
• “The first fully ‘digital’ hearing is due to take place on 11 May.
• We are preparing for additional cases to be heard by digital hearings/inquiries in May/early June with a view to scaling up digital events further over June/July.
• We are assessing postponed cases to establish whether they can proceed by digital, traditional or a ‘hybrid’ approach, in order to re-arrange these in due course accordingly.
• A trial of ‘virtual site visits’ is underway involving thirteen Inspectors.
• Five local advisory visits have taken place remotely (critical for helping Local Planning Authorities to progress local plans and reduce the length of examinations).”
But is this fast enough? Can more be done? Could we see a leap forward in the way that planning hearings and inquiries are conducted?
After all, the planning inquiry process has been constantly adapting. Planning inquiries were first introduced in the Housing, Town Planning etc Act 1909 to consider objections to town planning schemes. The right to appeal against a planning decision was introduced in the 1932 Act, and the 1947 Act provided that all appeals were to be determined by public inquiry. Weirdly to us now, the procedures followed and the reasoning for decisions was kept secret until changes were made to implement some of the recommendations of the 1957 Franks Committee on Administrative Justice. We still refer to the three Franks Principles, of openness, fairness and impartiality.
This is what was said by the minister of the time in a 1957 Commons debate on the report:
“I must, however, return to a point I made in the opening of my remarks, that we must not complicate the procedures more than we can help. The great majority of objectors and appellants are small people. Quite a few present their own cases without professional assistance and for most people it is essential that the procedure should be simple, intelligible, quick, and cheap, as well as fair.”
Dear reader, of course we did then complicate those procedures, often through changes made with the best of intentions. When I started practice, there was no advance exchange of proofs of evidence. We all read the documents for the first time as they were being read out by the witness. No rebuttal proofs, no laboriously prepared cross-examinations or written closing submissions. Every procedural step that has been introduced, introducing frontloading of appeal preparation and evidence (good), minimising surprises (good), has by a sidewind elongated and complicated the processes (bad). There may now be a much more forensic and detailed examination of the issues, but where have we left those “small people”?
The Planning Bar is obviously at the sharp end of the current slowdown and has been trying to move things along.
It is of course hugely frustrating that the massive improvements to the inquiry appeals system brought about by the Rosewell review (see eg my 25 May 2019 blog post Pace Making: Progress At PINS) have been undone by this pandemic. The Rosewell changes, unlike possibly every previous reform of any aspect of the planning system, did not add complications, but modernised and streamlined it in many ways, with telephone case management conferences and the like now the norm. I assume that everyone saw the interview with Bridget Rosewell on last week’s second episode of Have We Got Planning News For You? Her frustration with the Inspectorate’s present apparent slowness to get virtual hearings and inquiries underway was apparent, talking about the need to “move forward as soon as possible” and extolling the “fairer access” that can be achieved in a “virtual environment”.
We should listen to Bridget.
(Indeed, to go off on a tangent, if I were Secretary of State for the day, I would presently quietly shelve “Planning For The Future” and instead ask Bridget, very nicely, to carry out “Rosewell 2”, this time a review, with similar practical focus, in relation to the planning application process, so as to identify opportunities for simplification and reduction of unnecessary paperwork. Step by step there are surely simple opportunities for improvement. Off the top of my head:
– Recommended word limits for supporting documents such as Planning Statements, Design and Access Statements and Environmental Statements (or application fee linked to size of the documentation)
– Removal of need for multiple hard copies of documents
– Modernisation of publicity requirements
– Recommended word limits for officers’ reports to committee
– Standardisation of wording of planning conditions
– Updated model section 106 agreement template (the Law Society’s current so-called template draft agreement dates from 2010!)
– Updated advice as to the types of application which properly should be dealt with by way of officers’ delegated powers
But of course, moving to virtual appeals, even on a temporary basis, is not easy. The interests of all participants, and potential participants, in the appeals process need to be taken into account. Whilst justice delayed is justice denied, justice has to be both done and be seen to be done.
I was struck by an assertion in the Landmark Chambers paper:
“ It is safe to proceed on the basis of a presumption that every participant in a planning appeal will have reasonable access to a means of participating in a remote hearing session unless they provide evidence to the contrary. Virtually every household has a telephone, and the vast majority of people have access to a computer or mobile device on which video conferencing is possible.”
This isn’t still true for a few members of my own family (well they all have a land line – but certainly couldn’t be expected to follow proceedings on a telephone). And indeed whilst the chattering classes are currently going on about Zoom and the rest of it, I know that many are finding it very difficult to access or be at ease on these platforms, surrounded by us lawyers and others who inevitably spend much of every day now speaking with a variety of people on screen and unwittingly developing new social norms and cues.
Any procedural solution does needs to meet the three principles set out in the paper:
– The common law requirements of fairness;
⁃ Article 6(1) ECHR – the right to a fair trial in civil cases;
⁃ Article 6 of the Aarhus Convention (“public participation in decisions on specific activities”).
But decisions as to procedure also need to have regard to “protected characteristics” under the Equality Act 2010, which of course include age and disability. Bridget is right that virtual hearings and inquiries would allow many to engage with the process who currently cannot, which is great as long as there are protections to make sure that some are not excluded.
In my view this is perfectly achievable for the majority of hearings and inquiries. I accept that (1) the inquiry process is very different from the court process and we cannot simply “read across” and (2) even in relation to the court process, there were some words of warning this week from the Court of Appeal in a family law case, Re A (Children) (Court of Appeal, 30 April 2020) – see paragraphs 49 to 56. However, let’s analyse the real position:
The only parties entitled to appear at a hearing are the appellant, the local planning authority and defined statutory parties. Everyone else is at the discretion of the inspector. As long as the inspector is confident that there is no third party, from whom the inspector feels he or she should hear, and who cannot participate adequately by some remote means, why should not virtual hearings proceed, as long as the proceedings are able to be viewed remotely (perhaps also with a transcript of what is said – not difficult at all – where there is any doubt as to whether there may be interested parties without adequate screen access)?
At inquiries, the parties only entitled to appear are the appellant, local planning authority, defined statutory parties and those who have (at their own request) become rule 6 parties. Again, if all of those parties are in agreement (with possible adverse costs award consequences for those who unreasonably refuse) and as long as the same approach can be taken in relation to other parties, why cannot inquiries proceed?
Site visits are less of a problem, whether accompanied or unaccompanied, and whether in fact still always needed, in the light of visual material now available.
Furthermore, as long as there are indeed adequate protections for those who should be heard at the hearing and genuinely cannot reasonably be expected to participate remotely, the change to a virtual process has the benefit of opening up access to so many other people. And imagine the benefits in future of being able to offer a “virtual” evening session at the next inquiry at your local town hall? That surely would be participative democracy.
Which is a long way of saying: I agree with Bridget.
How unromantic. To my disappointment, that line from Elizabeth Browning’s poem is not followed by a list of the differences between the section 247 and 257 procedures for stopping up highways.
I need to fill that gap.
After all, the process for stopping up highways in order to enable development to be carried out is a vital corner of our planning system that is particularly dysfunctional and lacking in logic. Perhaps because the process largely comes after the decision as to whether the development itself is to be approved, there is too little focus on whether it is working effectively. The last material change to the procedure was the limited, but welcome, amendment made by way of the Growth and Infrastructure Act 2013, which at least allowed it to commence prior to planning permission being granted.
Section 247 (1) of the Town and Country Planning Act 1990 provides that “the Secretary of State may by order authorise the stopping up or diversion of any highway outside Greater London if he is satisfied that it is necessary to do so in order to enable development to be carried out…in accordance with planning permission...”
The procedure covers all types of highway.
Section 257 (1) of the Town and Country Planning Act 1990 provides that “[s]ubject to section 259, a competent authority may by order authorise the stopping up or diversion of any footpath, bridleway or restricted byway if they are satisfied that it is necessary to do so in order to enable development to be carried out…in accordance with planning permission…”
The procedure just covers footpaths, bridleways and restricted byways.
The substantive test in relation to both processes is whether the stopping up is “necessary” in order to enable the development to proceed and whether stopping up is in the public interest. However, they are administered in very different ways (and the section 247 process is different in London).
(Outside London) a section 247 application is made by the developer to the Secretary of State for Transport, and is administered by the Department for Transport’s National Transport Casework Team in Newcastle. The casework team’s guidance indicates that the “Department aims to process Orders where there are no objections within 13 weeks from receipt of all necessary information.”
If there are objections following publicity for the application, the Secretary of State considers in his discretion whether an inquiry is to be held. If an inquiry is to be held, there are no procedural rules which govern the process. The inspector is appointed by the DfT and reports to the Secretary of State for Transport, who makes the final decision.
(In London, section 247 order applications are made by the developer to the relevant borough.
If objections are received and cannot be resolved, the application is referred to the Mayor of London, who either decides that under section 252 (5A) that “in the special circumstances of the case” an inquiry is unnecessary, in which case the borough may confirm the order, or that inquiry is necessary, in which case the borough must cause an inquiry to be held.)
A section 257 application is made by the developer to the local planning authority, following the form set out in the Town and Country Planning (Public Path Orders) Regulations 1993. If there are objections following publicity for the application, section 259 and schedule 14 of the Town and Country Planning Act 1990 require that the application must be referred by the local planning authority to the Secretary of State for Environment, Food and Rural Affairs (although in practice by way of reference to the Planning Inspectorate’s rights of way section).
Unless each objector indicates that he or she doesn’t wish to be heard in front of an inspector, PINS will either arrange a hearing or a public inquiry. There are set timescales for the relevant stages. For a hearing, each party wishing to give evidence must provide a statement of case within 12 weeks of the start date. The hearing should generally take place within 20 weeks of the start date. For an inquiry, the parties must provide their statements of case within 14 weeks of the start date and proofs of evidence must then be provided at least four weeks before the start of the inquiry, which should generally be not later than 26 weeks after the start date.
Not only is it odd that the Planning Inspectorate has no discretion to decide that an opposed application be determined by written representations unless all objectors agree (contrast with section 247 but also with the powerless position of an appellant in relation to a section 78 appeal) but these timescales are way out of kilter with modern, post Rosewell, inquiry timescales, where statements of case are due within five weeks of the start date and the inquiry will generally be within 13 to 16 weeks of the start date.
There is a further sting in the tail: The Planning Inspectorate’s procedural guidance warns:
“Having received an order from a local authority, we aim to issue the notice containing the ‘start date’ to all the parties within 10 weeks.”
Ten weeks! That is often by definition ten additional weeks on the post permission, pre construction, timeline for a project.
So a section 257 order is likely to take around 36 weeks to get to inquiry…
The only good news is that (another difference between section 247 and 257 orders), the inspector can make the final decision in relation to section 257, so there is no further delay caused by waiting for the Secretary of State to consider his or her report.
In conclusion, there are unjustified differences between what should be very similar processes:
⁃ No overall statutory procedural framework (no procedural rules in relation to section 247; out of date procedural rules in relation to section 257, in terms of leisurely time limits and limited scope for determining that a written representations procedure is adequate)
⁃ No single decision-maker (two different Secretaries of State – and in London the Mayor’s role in relation to section 247 – and section 257 decisions are taken by the relevant inspector rather than needing to be referred to the Secretary of State).
⁃ No single body administering the process (DfT National Transport Casework Team vs Planning Inspectorate rights of way section).
In relation to both processes I would go further: As long as there are appropriate safeguards for those affected and with suitable requirements as to consultation and publicity, surely a local planning authority, at the same time as determining any planning application for development, should be able to approve any highways closures that are required in order for that development to be carried out? Otherwise, the issues are artificially divided, in a way that is particularly confusing for objectors, between two processes (planning and stopping up) which still have to run largely one after the other?
How do I love thee (sections 247 and 257)? Let me count the ways (not).
Well, here is another one, in relation to the Chiswick Curve scheme on the Great West Road within the London Borough of Hounslow, the 19 July 2019 decision letter out just before Parliament rises on 25 July (by which date we will have a new prime minister). Another long inquiry (15 days), long delays (the initial application was made over three and a half years ago, the inquiry was a year ago), detailed analysis from an experienced inspector who had heard the evidence and seen the site first hand, ultimately counting for nothing.
The Secretary of State’s decision followed an inquiry held by inspector Paul Griffiths BSc(Hons) BArch IHBC, into appeals by Starbones Limited against the decisions of the London Borough of Hounslow to (i) refuse planning permission for a mixed use building of one part 32 storey and one part 25 storeys comprising up to 327 residential units, office and retail/restaurant uses, basement car and bicycle parking, residential amenities, hard and soft landscaping and advertising consent with all necessary ancillary and enabling works and (ii) refuse to grant advertising consent for 3x digital billboards. The applications were dated 11 December 2015 and amended in October 2016.
The differences of judgment as between the inspector and Secretary of State appeared to boil down to the following:
⁃ The Inspector considered “that the proposal would bring a massive uplift to the area around it” and would be in accordance with various local plan policies. “While the Secretary of State recognises that public realm improvements and the publicly accessible elements of the scheme…do offer some improvement to current conditions, in terms of accessibility and movement, he does not agree that this constitutes the massive uplift as described by the Inspector.”
⁃ Both agreed that the harm to designated heritage assets (the Strand on the Green Conservation Area plus its listed buildings; Kew Green Conservation Area plus its listed buildings; Gunnersbury Park Conservation area plus its listed buildings and Registered Park and Garden, and the Royal Botanic Gardens Kew World Heritage Site plus its listed buildings) would be less than substantial but the Secretary of State disagreed with the inspector’s finding that the public benefits of the proposals would be sufficient to outweigh the harm.
⁃ The Secretary of State disagreed with the Inspector that there would be no conflict with a local plan policy concerning the impact of tall buildings proposed in sensitive locations such as conservation areas, listed buildings and their settings, and World Heritage Sites.
⁃ Accordingly the Secretary of State disagreed with the Inspector and found that the proposals did not comply with the development plan when read as a whole.
⁃ The Secretary of State “considers that the site has a strategic location, and he recognises the constraints and challenges associated with it. While he agrees with the Inspector […] that the proposed design seeks to respond to those challenges in a positive way, he does not find the proposal to be of such high quality as to be a brilliant response to its immediate context. He finds the scale and massing of the proposal to be such that the proposal does not relate to its immediate surrounding. While he recognises that attempts to minimise this impact have been taken with regard to glazing and fins, the building would still dominate the surrounding area. He considers the design to be a thoughtful attempt to respond to the challenges and opportunities of the site, but due to its scale, he disagrees with the Inspector […] that it is a significant benefit of the scheme.”
⁃ The Secretary of State considered that the proposals “would not provide the levels of private and communal amenity space that [the relevant local plan policy] requires. While he has found this to be a limited departure from this policy, the Secretary of State also recognises that the on-site provision, supplemented by the relative proximity of Gunnersbury Park does reduce the weight to be attached to this conflict.”
⁃ Given his finding that the proposals would not be in accordance with the development plan he went on to consider whether whether there were any material considerations to indicate that the proposals should be determined other than in accordance with the development plan. After a detailed analysis in paragraphs 34 to 38 of the decision letter, he concludes:
“Overall, the Secretary of State disagrees with the Inspector […], and finds that the moderate weight to be attached to the benefits of the appeal scheme in terms of housing provision, workspace provision and economic benefits, are not collectively sufficient to outweigh the great weight attached to the identified ‘less than substantial’ harm to the significance of the above heritage assets. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.”
Local MPs Ruth Cadbury (Labour) and Zac Goldsmith (Conservative) were recorded as having objected to the proposal. The objectors appearing at the inquiry included Historic England, the Royal Botanic Gardens Kew and the Kew Society (the first two instructing Richard Harwood QC and James Maurici QC respectively). Russell Harris QC and Richard Ground QC appeared for the appellant and for the London Borough of Hounslow respectively.
I note that on 19 July 2019, the Secretary of State also refused, against his inspector’s recommendation, Veolia’s called in application for planning permission for an energy recovery facility in Ratty’s Lane, Hoddesdon, Hertfordshire.
The Secretary of State accepted that there is an “urgent and pressing need” for the facility, that there is “no obvious alternative site”. “Given the urgent and pressing need, the Secretary of State considers that the provision of an ERF with sufficient capacity to accommodate the waste demands of the county carries substantial weight in favour of the proposal, and the climate change benefits of the proposal also carry substantial weight”. However, he considered that in view of the fact that the proposal was contrary to the development plan and there were unresolved concerns over highways matters, together with “significant adverse landscape and visual impacts”, the application should be refused. I thought that “need” means “need” but there we go.
Not much getting past this Secretary of State is there? An inference of his recent letter to the Planning Inspectorate (see my 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism) might be that he considers that inspectors may on occasion be too robust in their examination of local plans and yet an inference of his approach on recovered appeals and call-ins might be that he considers that on occasion inspectors are not robust enough in assessing development proposals that are before them at inquiry. For my part, neither inference would be justified.
The Secretary of State sent a curious letter to the Planning Inspectorate on 18 June 2019, which was only placed on the Government’s website on 28 June 2019. (The delay may have been to allow PINS to update its procedure guide for local plan examinations).
It is in two parts:
Sharing information with MHCLG
The Secretary of State reminds inspectors and local authorities that Parliament has given him “a number of powers that, where justified, allow [him] to become involved in plan making. This includes powers to notify or direct the Inspectorate to take certain steps in relation to the examination of the plan or to intervene to direct modification of the plan or that it is submitted to [him] for approval”. He states that he is “frequently asked by those affected by the plan making process to consider use of these powers and must look at each of these requests on a case by case basis. This includes requests from Members of Parliament, who have a legitimate interest in the progress of local plans in their areas and are accountable to their electorates. I am pleased that the Planning Inspectorate’s published Procedural Practice encourages MPs to participate in the examination hearing sessions even if they did not make a representation and I would encourage their involvement in this way”.
He considers that more can be done by way of sharing of factual information so that his officials can advise him as to whether use of his powers would be appropriate.
He sets out two changes to the arrangements for sharing of information between MHCLG and PINS with immediate effect:
“1. On a quarterly basis the Planning Inspectorate will publish a report that sets out the plans that are expected to be submitted for examination in the following 6-month period. I ask that this report be published on the Planning Inspectorate website. Clearly this can only be as good as the information received from local authorities, and I am arranging for this to be drawn to the attention of local authorities to remind them of the importance of giving clear timetables;
2. The Planning Inspectorate will share all post-hearing advice letters, letters containing interim findings, and any other letters which raise soundness or significant legal compliance issues, as well as fact check reports, with my department on a for information basis, at least 48 hours in advance of them being sent to the Local Planning Authority”
In relation to the second change, can I ask that we have on one website each of these documents as soon as they can be made public. There is a fundamental lack of transparency in the ad hoc way that this information is currently made available only on the relevant examination page of the particular local authority’s website, meaning that ensuring consistencies of approach, reviewing trends and learning from similar circumstances is currently very difficult indeed.
And what local plans have escaped to adoption before the relevant MP could ask the Secretary of State to apply the knife? Local Plan Intervention: a question of MP influence published by the House of Commons Library in July 2017 summarises the four times since the 2012 NPPF (to July 2017) when the Secretary of State had used his powers of intervention: Bradford, Birmingham, Maldon and North Somerset. In all but Maldon the intervention was at the request of an MP. I note that the MPs’ interventions only achieved delay to eventual adoption of the plan, whereas the call in of the Maldon plan was in circumstances where an inspector had found that the whole plan was unsound, due to its policies on traveller provision, the council’s chief executive successfully sought call in of the plan and the plan was eventually adopted.
Aside from the Secretary of State’s sabre rattling in relation to authorities that have not made sufficient progress with their plans, which I will come to in a moment, what interventions have there been since July 2017? Do we discern a continuing trend? Wouldn’t it be nice to have the information in one place so that potentially straight-forward questions such as that could be resolved. Is MPs’ interest more often in the “progress of local plans in their areas” or is it in being seen to be pressing in relation to those issues of most concern to their electorate eg retention of green belt and/or opposition to housing?
Another Conservative MP on the “anti-housing in the Green Belt” campaign trail. Was this local plan perhaps “the one that got away” as far as MHCLG is concerned?
So how has the more general sabre rattling, in relation to delays in plan preparation, been going? My 18 November 2017 blog post Local Plan Interventions referred to the 31 January 2018 deadline given to 15 local authorities to set out any exceptional circumstances as to why they had failed to produce a local plan, to justify the Secretary of State not intervening in their local plan processes.
On 23 March 2018 the Secretary of State made a statement to the House of Commons, indicating that his attention had narrowed to three authorities: Castle Point, Thanet and Wirral:
“In three areas, Castle Point, Thanet and Wirral, I am now particularly concerned at the consistent failure and lack of progress to get a plan in place and have not been persuaded by the exceptional circumstances set out by the council or the proposals they have put forward to get a plan in place. We will therefore step up the intervention process in these three areas. I will be sending a team of planning experts, led by the Government’s Chief Planner, into these three areas to advise me on the next steps in my intervention.
I have a number of intervention options available to me which I will now actively examine. As it may prove necessary to take over plan production, subject to decisions taken after the expert advice I have commissioned, my Department has started the procurement process to secure planning consultants and specialists to undertake that work so it can commence as quickly as possible. My Department will also be speaking to the county councils and combined authority with a view to inviting those bodies to prepare the local plan in these three areas as well as exploring the possibility with neighbouring authorities of directing the preparation of joint plans”
Tough talk but it then took another ten months before intervention letters were finally sent to Wirral and Thanet on 28 January 2019.
The position in Castle Point is a mystery to me. Councillors voted down a proposed draft of the plan in December 2018. The council’s website simply says this:
“A Special Council Meeting was held in November 2018, whereby the Council resolved to not proceed with the Pre-Publication Local Plan. As a result of this meeting the Council are in discussions with the Minstry of Housing, Communities and Local Government in regards to the next steps. “
But no intervention letter yet.
Sadly, if I worked for an authority I would presently be more concerned about the risk of the Secretary of State intervening in relation to a plan that has passed its examination and is about to be adopted than the risk of his intervening due to the lack of a plan in the first place or due to the authority’s withdrawal of a draft plan. We are seeing various authorities taking decisions to withdraw their submitted plans (for example East Cambridgeshireand Amber Valley) because they find the inspector’s findings, usually seeking further development allocations or additional housing numbers, unpalatable and there is still such slow progress on the part of many authorities. Surely this is the scourge – not plans which are within a process that has been refined by independent examination, the outcome of which happens to contradict the views of an MP, now encouraged to participate in hearing sessions “even if they did not make a representation”? In any world other than one in which backbench MPs have to be pacified, isn’t this madness?
The importance of being pragmatic
On the subject of pragmatism…
The second part of the Secretary of State’s 18 July letter comprises this final paragraph which I have already seen trotted out at an examination by one authority seeking to paper over the cracks:
“Finally, on the substance of plan examinations, I wanted to stress to inspectors – who are doing a challenging job – the importance of being pragmatic in getting plans in place that, in line with paragraph 35 of the NPPF, represent a sound plan for the authority and consistent in how they deal with different authorities. We support and expect Inspectors to work with LPAs to achieve a sound plan, including by recommending constructive main modifications in line with national policy. In this regard, I would reiterate the views set out by the Rt Hon Greg Clark MP in his 2015 letter which I attach, on the need to work pragmatically with councils towards achieving a sound plan.”
I have since been trying to find an example of a local plan inspector in the last few years who has not been pragmatic in seeking to rescue a plan by way of main modifications rather than recommending withdrawal – and indeed the 2013/2014 spate of plans that failed examination were down to hard-edged legal failings in relation to the duty to cooperate.
Inspectors routinely allow pretty significant changes by way of main modifications, and general evidential backfilling, rather than recommend withdrawal. They routinely accept unenforceable assurances from the authority that the authority will carry out an early review – but at best “early” never means early and, at worst, as last week with the Reigate and Banstead plan, the authority’s (judge in its own cause) “review” determines that changes to the plan are not after all necessary!
So what is this paragraph getting at? If the Secretary of State were to be saying that inspectors should not be checking that legal requirements (eg the duty to cooperate and the need for adequate sustainability and habitats appraisals) have been met or that the plan meets the soundness test in NPPF, that would surely be wholly inappropriate. And shouldn’t we be protecting the independence of the Planning Inspectorate? Formal guidance is one thing, but “go easy” warning letters such as this surely just make an inspector’s task even more challenging.
Imagine equivalent guidance being given to appeal inspectors! Oh yes, bend over backwards to give the appellant time to amend elements of his scheme, overlook policy inconsistencies, fudge the approach to later phases of the development because the appellant has agreed, outside any enforceable timescale, to carry out an “early review” of those aspects. Doesn’t ring true, does it?