‘Twas The Week Before Recess

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.”

The next day, 15 July 2021, we had the Prime Minister’s florid Levelling Up speech, although for actual announcements it might be better to go straight to, for example, a press statement issued the same day: PM sets out new ‘County Deals’ to devolve power to local communities in Levelling Up speech (15 July 2021).

“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.”

The same day there was also the press statement Government strategy to regenerate high streets (MHCLG, 15 July 2021), with various announcements, including the publication of Build Back BHS – apologies: Build Back Better High Streets. Compulsory purchase practitioners will be interested to see this passage:

“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.

(Public transport = tick).

People In Houses…

…really don’t want other people to have houses, do they?

FT, 19 June 2021
Times, 19 June 2021
Telegraph, 19 June 2021

The prime minister can hardly be surprised when the affluent home-owning constituents of Chesham and Amersham register a protest vote against his plans for change, thinking that in some way he is coming for their beautiful part of the country, even though it bristles with statutory protections from development. First there has been the insensitivity with which HS2 has been forced through the Chilterns AONB with the case for longer tunnelling rejected (see my 30 July 2016 blog post HS2: The Very Select Committee) and secondly, as hitherto loyal Conservatives, they will have taken the prime minister at his word when with typical hyperbole he said in his foreword to last August’s white paper:

“Thanks to our planning system, we have nowhere near enough homes in the right places. People cannot afford to move to where their talents can be matched with opportunity. Businesses cannot afford to grow and create jobs. The whole thing is beginning to crumble and the time has come to do what too many have for too long lacked the courage to do – tear it down and start again.

That is what this paper proposes.

Radical reform unlike anything we have seen since the Second World War.

Not more fiddling around the edges, not simply painting over the damp patches, but levelling the foundations and building, from the ground up, a whole new planning system for England.”

“And, above all, that gives the people of this country the homes we need in the places we want to live at prices we can afford, so that all of us are free to live where we can connect our talents with opportunity.

Getting homes built is always a controversial business. Any planning application, however modest, almost inevitably attracts objections and I am sure there will be those who say this paper represents too much change too fast, too much of a break from what has gone before.

But what we have now simply does not work.

So let’s do better. Let’s make the system work for all of us. And let’s take big, bold steps so that we in this country can finally build the homes we all need and the future we all want to see.”

How easy it must be for other parties and for campaign groups to scaremonger when such coarse analogies are used – war, tearing things down, levelling foundations, building from the ground up.

The paper itself was not nearly as radical as the foreword would suggest and we have seen no further detail since. And so he is now on the defensive:

The Independent, 18 June 2021

“What we want is sensible plans to allow development on brownfield sites. We’re not going to build on greenbelt sites, we’re not going to build all over the countryside.”

[What does this even mean? Of course there will continue to be green field development, and of course some green belt development – as there is under the current system].

This is such an unnecessarily controversial issue, carelessly caused, cynically amplified. The planning system doesn’t need to be torn up and was never going to be torn up. But where have the ministers been to explain, to persuade, to engage? Instead, a resounding, almost embarrassed, silence since that August 2020 white paper. The news vacuum as to the form that changes are likely to take has of course been filled with media speculation and campaigners’ characterisations which have now served to make the whole question more political than it ever needed to be.

We all know that what is needed is for the current planning system to work better, largely through clearer carrot and stick policies, through specific process improvements and simplifications – and with better resourcing. So as to deliver, yes, more homes, yes economic growth, yes in a planned way, yes meeting environmental and social, not just economic, goals. But none of that’s going to happen now is it? Because politics is all about retaining power, and planning is dependent on politics. So if you are relying on the planning system to enable you to move out of your parents’ house or out of an HMO; to start a family, or to grow a business, you know what? Your needs don’t matter. Not against the needs of a politician who doesn’t want to be the next Peter Fleet.

All this of course means that the current system needs to continue to work as best it can. The good news is that at least this week we had that Colney Heath appeal decision letter to demonstrate that the entire system is in fact not in total meltdown. If an area is without an up to date plan, with a severe unmet housing need, with need for affordable housing and for sites for self build homes, planning permission may be granted even if the land is, horror of horrors, politicians look away, green belt. My firm Town (well, my colleague Paul Arnett) was pleased to play at least a small role in the appeal as planning solicitors for the appellant, negotiating a section 106 agreement with the St Albans and Welwyn Hatfield councils that secured a commitment that 45% of the 100 homes proposed would be affordable housing and 10% would be self-build, delivering a strategy first formulated by Chris Young QC and developed and implemented at the inquiry itself by Zack Simons (who kindly brought us onto the team). Russell Gray at Woods Hardwick was the lead planning witness and coordinated the team.

Inspector Christa Masters determined that the following were “very special circumstances” that justified inappropriate development in the green belt:

provision of market housing

“I am aware of the Written Ministerial Statement of December 2015 which indicates that unmet need is unlikely to clearly outweigh harm to Green Belt and any other harm so as to establish very special circumstances. However, in common with the appeal decision referred to, I note that this provision has not been incorporated within the Framework which has subsequently been updated and similar guidance within the Planning Practice Guidance has been removed. I can therefore see no reason to give this anything other than little weight as a material consideration.

It is common ground that neither SADC or WHBC can demonstrate a five year supply of deliverable homes. Whilst there is disagreement between the parties regarding the extent of this shortfall, the parties also agreed that this is not a matter upon which the appeals would turn. I agree with this position. Even taking the Councils supply positions of WHBC 2.58 years and SADC at 2.4 years, the position is a bleak one and the shortfall in both local authorities is considerable and significant.

There is therefore no dispute that given the existing position in both local authority areas, the delivery of housing represents a benefit. Even if the site is not developed within the timeframe envisaged by the appellant, and I can see no compelling reason this would not be achieved, it would nevertheless, when delivered, positively boost the supply within both local authority areas. From the evidence presented in relation to the emerging planning policy position for both authorities, this is not a position on which I would envisage there would be any marked improvement on in the short to medium term. I afford very substantial weight to the provision of market housing which would make a positive contribution to the supply of market housing in both local authority areas.”

⁃ provision of self-build

“In common with both market housing and affordable housing, the situation in the context of provision of sites and past completions is a particularly poor one. To conclude, I am of the view that the provision of 10 self build service plots at the appeal site will make a positive contribution to the supply of self build plots in both local planning authority areas. I am attaching substantial weight to this element of housing supply.”

⁃ provision of affordable housing

“The uncontested evidence presented by the appellant on affordable housing for both local authorities illustrates some serious shortcomings in terms of past delivery trends. In relation to WHBC, the affordable housing delivery which has taken place since 2015/16 is equivalent to a rate of 23 homes per annum. The appellant calculates that the shortfall stands in the region of 4000 net affordable homes since the 2017 SHMA Update, a 97% shortfall in affordable housing delivery. If the shortfall is to be addressed within the next 5 years, it would required the delivery of 1397 affordable homes per annum. In SADC, the position is equally as serious. Since the period 2012/13, a total of 244 net affordable homes have been delivered at an average of 35 net dwellings per annum. Again, this equates to a shortfall also in the region of 4000 dwellings (94%) which, if to be addressed in the next 5 years, would require the delivery of 1185 affordable dwellings per annum.

The persistent under delivery of affordable housing in both local authority areas presents a critical situation. Taking into account the extremely acute affordable housing position in both SADC and WHBC, I attach very substantial weight to the delivery of up to 45 affordable homes in this location in favour of the proposals.”

I recommend Zack’s 15 June 2021 blog post Notes from the Green Belt: what’s so very special about Colney Heath?

I also recommend Chris’ earlier paper Winning an inquiry: it’s the benefits, stupid.

More decisions such as Colney Heath are inevitable where authorities, admittedly struggling at times with a sclerotic local plans system, fail to deliver, which of course makes this scaremongering about a new planning system so nonsensical.

Topically, at 6pm this Tuesday 22 June our Clubhouse Planning Law, Unplanned theme is “How can we build enough, affordable, housing?”. Our special guests are Chris Young QC, Nick Walkley (ex Homes England chief executive), Claire Dickinson (director, Quod) and Ric Frankland (founder, wudl.). Please join us. A free link to the app and event is here.

Simon Ricketts, 19 June 2021

Personal views, et cetera

“Our Number One Domestic Priority”: Taking Stock

I tweeted that yesterday was the 5th anniversary of my first simonicity blog post. 273 posts later and 496,000 words (War and Peace = 587,000 words) and to what effect?

As I also said, it can be deflating to look back. So many posts expressing frustration about the same topics, yes obviously CIL, but also the recurring debates as to how to address the country’s housing crisis and as to what the obstacles are: is it the planning system or are other factors at play? Something Must Be Done. But what?

Unpacking Use It Or Lose It (16 July 2016) was one of my first posts. It referred to that week’s House of Lords Economic Affairs Committee’s report, Building More Homes.

“Paragraphs 129 to 139 of the report’s section on Planning Reform set out the “criticism made of the large house builders…that they hold land suitable and with permission for building, yet build at a slow pace and thus maximise the profit from each development”.

The conclusion is arrived at:

“139.We recommend that local authorities are granted the power to levy council tax on developments that are not completed within a set time period. This time period should be negotiated when planning consent is sought and be varied according to the size and complexity of a development. To ensure that the local authority also has an incentive to accelerate the process, the clock should start to run only when the local authority has signed off all conditions and obligations“.”

The allegation that house builders hold unnecessarily large land banks, going slow to maximise profits, was considered in detail by Oliver Letwin in his 2018 review. Incidentally, a constant theme of my blog posts over the last five years has been reviews commissioned by the Government the recommendations of which it then ignores – my first ever post, on 3 June 2016, was about the recommendations of the CIL independent working group (sensible recommendations, ignored by Government) – and Oliver Letwin’s recommendations in his final report (summarised in my 3 November 2018 blog post Oliver’s Twist: Letwin’s Proposals For Large Housing Sites) were of course similarly ignored, but perhaps the findings in his earlier interim report (June 2018) were more interesting, where he rejects that land banking allegation:

“5.40 It is of course true that, although the land market can be highly volatile, land (unlike most assets) does not depreciate, and has generally tended to increase in value across the cycle, and has a ‘real option’ value. By holding rights over land that benefits from (or is soon likely to benefit from) some form of permission to build houses, the company which holds that land obtains a valuable ability to make profit by building on it at whatever time is thought likely to maximise the profitability of doing so. It would therefore be perfectly possible for financial investors of a certain kind to seek to make a business out of holding land as a purely speculative activity.

5.41 But I cannot find any evidence that the major house builders are financial investors of this kind. Their business models depend on generating profits out of sales of housing, rather than out of the increasing value of land holdings; and it is the profitability of the sale of housing that they are trying to protect by building only at the ‘market absorption rate’ for their products. I have heard anecdotes concerning land owners who seek to speculate in exactly this way by obtaining outline permission many years before allowing the land to have any real development upon it – and I am inclined to believe that this is a serious issue for the planning system. But it is not one that is consistent with the business model of the major house builders.

And yet here comes the allegation again in an 8 May 2021 Local Government Association press statement: Over 1.1 million homes with planning permission waiting to be built – new LGA analysis. “The LGA is calling for councils to be given powers in a Planning Bill in the Queen’s Speech to incentivise developers to build housing more quickly. Latest figures show that 2,782,300 homes have been granted planning permission by councils since 2010/11 but over the same period only 1,627,730 have been built.”

And look at their proposal, which harks back (without reference to it) to the rejected idea in that 2016 House of Lords Economic Affairs Committee Report. They say:

While there will be in some cases legitimate reasons as to why development has stalled, and it is recognised that there is a time lag between permission being granted and homes being built, new build completions have only increased by just over half as much in that time. The LGA, which represents councils, says this shows that planning is not the barrier to house-building and that it is the housing delivery system that needs to be reformed.

To help councils get developers building more quickly, the Queen’s Speech should bring forward legislation that enables councils to charge developers full council tax for every unbuilt development from the point the original planning permission expires.”

Lichfields’ Matthew Spry rebuts the idea again in his 26 May 2021 blog post Use it or lose it: the taxing problem of undelivered homes.

The wider assertions in the Local Government Association press statement that sufficient planning permissions are already being granted to achieve the Government’s target of 300,000 net additional homes a year are tackled in Lichfields subsequent report, “Taking stock: The geography of housing need, permissions and completions”, published on 1 June 2021, commissioned by the Land Promoters and Developers Federation and the Home Builders Federation. Indeed they conclude that the necessary annual figure to achieve that target is 520,000.

The report represents the first stage of their work: “Analysis of how the number of homes with planning permission relates to housing need and delivery in different parts of the country through a comparison of housing need (either as per the standard method or recently adopted local plans), planning permissions and completions at a regional and housing market area level”.

We await stages 2 and 3:

“2. Assessing how the stock of permissions relates to housebuilder pipelines, rates of build out and the number of extra sites required to meet the government’s ambition; and

3. An analysis of what happens to the stock of permissions for a number of local authority case studies. This is a more in-depth ‘deep dive’ exploration on how the stock of permissions granted is linked to the number of homes completed within a given timescale by monitoring the land supply positions across the authorities over a five year period”

It is a great shame that MHCLG has not provided any detailed methodology to support the national target of 300,000 net additional homes a year. If anything it may be an under-estimate (see the 14 January 2021 House of Commons briefing paper Tackling the under-supply of housing in England) but surely it needs underpinning to avoid any assertion that it is too high. The background to the figure is mentioned in my 10 February 2018 blog post Nothing Was Delivered – the immediate context at the time being the first meeting of then prime minister Theresa May’s “housing implementation taskforce” (always good to have a taskforce). You recall Mrs May’s promise that the housing crisis would be her “number one domestic priority”? Roll forward three years: Theresa May leads Tory revolt over push for new housing (The Times, 12 May 2021).

What has got in the way of a sensible debate as to how we might resolve this country’s housing crisis since I started this blog? Politics. What might get us out of it? Action based on robust factual analysis.

Simon Ricketts, 4 June 2021

Personal views, et cetera

This week’s Clubhouse Planning Law, Unplanned discussion examines the Lichfields Taking Stock report. We will be joined by Lichfields’ Matthew Spry , together with the LPDF’s chairman Paul Brocklehurst, Lambert Smith Hampton’s Mary-Jane O’Neill, the BPF’s Sam Bensted, Blackstock Consulting’s Joshua Carson and our brilliant usual panel. Do tune in to join the discussion, or just to listen. This is a free invitation to the app.

Whitechapel Bell Foundry: Facts, Media, Politics

Government approves plan to turn Whitechapel Bell Foundry into boutique hotel (The Standard, 17 May 2021). Well, what do we think about that?

Bell foundry that cast Big Ben can be turned into boutique hotel, UK government says – Decision has drawn wave of criticism from culture and heritage professionals, accusing government of ‘money-grabbing philistinism’ (The Art Newspaper, 14 May 2021). Crumbs.

From the piece:

Andrew Wilson, a curator at Tate, wrote on Twitter that this is “another example of the normalisation of money-grabbing philistinism that this government promotes”. Writing on his blog, Charles Saumarez-Smith, the former chief executive of the Royal Academy of Arts in London, says that the government “is play-acting, [putting] a superficial veneer over rather brutal capitalists, who are happy to use British history for their own purposes… a hotel for foreign tourists is more important than a bit of living history”.

Saumarez-Smith also criticises the heritage body Historic England, which backed the boutique hotel project, saying: “I hope that the Commissioners of Historic England, who have so conspicuously failed in their public duty, might consider what went wrong: why they did nothing; why they have allowed this to happen in such a conspicuously supine way.” Historic England said in a statement: “We believe that the proposals have the makings of a successful heritage regeneration scheme, and would provide a sustainable future for this important group of listed buildings.”

Whitechapel Bell Foundry to be turned into a hotel, after Government greenlights plans (The Telegraph, 14 May 2021) – a piece that also quotes the tweets from Andrew Wilson and Charles Saumarez-Smith (Saumarez-Smith then writing a long piece in the same newspaper on 18 May 2021, If Robert Jenrick doesn’t act now, the Whitechapel Bell Foundry will be lost for good – A priceless piece of our heritage is on the brink of being turned into a hotel. Why won’t our public institutions protect it? ).

Bell tolls for historic Whitechapel foundry that created Big Ben (The Times, 14 May 2021), a piece which starts:

The housing secretary has ordered a review of planners’ approach to heritage after a decision was made to allow a 450-year-old bell foundry that cast Big Ben to be turned into a boutique hotel.”

Away from the traditional media, there has inevitably also been much tweeting and perhaps it is apt that the Secretary of State took to twitter to announce that review, the announcement so far taking the form just of the final sentence of this thread of tweets:

The one thing you get from the newspaper headlines is that the foundry is being turned into a hotel. Isn’t it interesting/worrying how these stories take on a life of their own, reduced to compelling headlines.? Of course, it’s inevitable – who has the time to read even the Secretary of State’s 13 May 2021 decision letter and accompanying inspector’s report, let alone any of the underlying documents? The foundry is not being turned into a hotel.

To take a step back…

First, what was the site? As described by the inspector:

“2.2 The entry in the statutory list provides a great deal of information about the Whitechapel (or what it terms the Church) Bell Foundry. It suffices to set out here that it is a Grade II* listed building. However, the situation is complicated, to a degree, by the fact that parts of the overall foundry site are specifically excluded from the listing.

2.3 Put simply, the application site has three main elements. Firstly, there is the front range (including 32 and 34 Whitechapel Road and 2 Fieldgate Street). Secondly, behind that front range, lie the courtyard and old stables and thirdly, beyond those, are the old foundry and former cottages. Together, these elements comprise the Grade II* listed building.

2.4 Beyond that lies what has been termed the 1980s building. This building is specifically excluded from the listing. Beyond and adjacent to the 1980s building are two areas of car park and hardstanding which were not part of the Whitechapel Bell Foundry but are parcels of land that have been assembled by the applicant.”

The foundry use had ceased in 2017.

What are the proposals by the applicant, Raycliff Whitechapel LLP? Again, as described by the inspector:

4.1 In simple terms, there are two main components of the proposals that can loosely be classified as the listed building and the new building. In terms of the listed building itself, it would play host to a modern foundry, interpretation spaces, a café and events space, workspaces and workshops. The proposed uses and improved circulation are intended to allow the maximum number of people to access and experience the building.

4.2 The new building would be home to a hotel, with 103 bedrooms, a restaurant, a bar, and a roof-top terrace and pool, and a workspace at ground floor level.

4.3 The ground floor across both the listed building and the new building would be open to the public, with the foundry, interpretation spaces and the café in the historic building, the restaurant bar and hotel reception in the new building. The main entrance to the buildings would be common to both.”

Tower Hamlets Council resolved to grant planning permission and listed building consent on the advice of its officers on 14 November 2019 and the Secretary of State then issued a holding direction on 2 December 2019.

Remember Rory Stewart’s campaign to be London Mayor? Back in December 2019, his campaigning included support for the Save the Whitechapel Bell Foundry campaign (Rory Stewart Declares His Support To Save The Whitechapel Bell Foundry, Spitalfields Life, 19 December 2019).

Photo courtesy of Spitalfields Life website

The applications were called in by the Secretary of State on January 2020. There was an early hiccup in the process when housing and planning minister Chris Pincher mistakenly told MPs in a debate on 11 June 2020 (seeking to defend the Secretary of State’s position in relation to another scheme in Tower Hamlets, Westferry – now incidentally back at inquiry for redetermination but that’s another story):

“I am obliged to the hon. Gentleman for his question. As I said, it is not unusual for Ministers to look at and call in significant applications, and for them to come to a different conclusion from that of the Planning Inspectorate. My right hon. Friend’s reasons for his decision were clearly outlined in his decision letter of 14 January. He makes it clear that one reason for his decision to allow the application was the very significant number of homes that were going to be built as a result of it, including affordable homes. I might say in response to the hon. Gentleman that in the same week, in an application to the same authority, my right hon. Friend came to a very different conclusion when he refused a planning application made by and supported by the local authority to demolish the Whitechapel Bell Foundry, the one that created Big Ben and the Liberty bell. The local authority, the well-known tribunes of the people in Tower Hamlets, wanted to demolish it and build a luxury boutique hotel. My right hon. Friend will always come down on an application based on its merits and in the interests of the people. That is what he did on this occasion and that is what he will always do.”

He later apologised for his mistake – it had only been called in by the Secretary of State, not refused, but an unhelpfully politically charged note in the process for sure.

An inquiry took place, which opened on 6 October 2020 and sat for nine days. The main objectors to the proposals were a group known as Re-Form Heritage, which appeared at the inquiry as a Rule 6 Party, represented by Rupert Warren QC and Matthew Dale-Harris, who called four witnesses including professional evidence on heritage and planning – no “David and Goliath” contest this). Tower Hamlets Council was in support of the proposals (Alexander Booth QC appearing), as was Historic England. David Elvin QC appeared for the applicant.

(Thanks to my Town Legal colleague Tom Brooks for much of the following summary, although any views expressed are mine).

Re-Form argued that:

– Raycliff’s proposals were unacceptable in heritage terms, and would cause, in the language of the NPPF (paras 193-196), “substantial harm” to the significance of the listed building; and

– Re-Form’s alternative vision for the future of the site, as a working foundry for casting both bells and other artistic commissions, was less harmful, so the applications should be refused.

Raycliff’s position was that only a low level of less than substantial harm would be caused by the proposals, that this would be outweighed by their public benefits (heritage and otherwise), and that Re-Form’s idea was undeliverable and unviable.

The inspector concluded that the listed building was “of profound significance” (IR 12.14), noting that all agreed there were elements of the proposals that would cause harm to that significance (IR 12.17), whether substantial (leading to NPPF 194-195) or less than substantial (leading to NPPF 196).

As spelt out by the inspector: the end of the bell foundry business in 2017 was unconnected to the present proposals (“Traditional bell founding on the site…ended for economic reasons mainly to do with a drop in demand for tower bells, and the difficulties, both operational and environmental, the business encountered in operating from a Central London address”); and therefore the starting point for the assessment was a “largely vacant Grade II* listed building that formerly housed traditional bell founding…It is not a situation where a traditional bell foundry is to be closed in order to be replaced by something else”. IR 12.23).

Following the inspector’s conclusion that the proposals cannot be taken to cause harm to the listed building as a result of the closure of the business, the only harm possible was any arising from the physical works now proposed. No harm was found to the other heritage asset in this case, the Whitechapel Conservation Area, and that the hotel extension was said by the inspector to be a “subtle and pleasingly understated” addition (IR 12.52).

The inspector concluded that the harm to the listed building “would be very much at the lower end of the scale of less than substantial” (IR 12.44), would be outweighed by the public benefits of the scheme (albeit with some non-consequential discussion as to how this balancing should be carried out – see below), and so planning permission and listed building consent should be granted.

This advice was accepted by the Secretary of State.

There are some interesting issues arising:

– Obviously, there is no planning control whatsoever to preserve as operational the specific use that was said to be significant in heritage terms – as a “large church bell foundry” (IR 8.46) – clearly the planning system cannot require a business to continue to operate or indeed to prevent other industrial uses of the site, or uses which may be possible by way of permitted development. The Secretary of State concluded that “the end of traditional bell making on the site has…nothing whatsoever to do with the proposals at issue”.

– Re-Form argued that that Raycliff needed to demonstrate that its scheme was the “optimum viable use” of the site (following the reference in NPPF 196). This suggestion was dismissed by the inspector: optimum viable use is an example of the public benefits that are to be weighed against harm in the balancing process, but in such “a situation where the heritage and other public benefits of the proposals so far outweigh the harm they would cause, it appears to me unnecessary” (IR 12.82).

– The inspector followed Bramshill at first instance (Waksman J, 16 December 2019) that not much detail of an alternative scheme for a heritage asset is needed for that scheme to be a relevant consideration. Nonetheless, he found Re-Form’s scheme to be “somewhat sketchy, and lacking in detail [with…] far too many uncertainties” (IR 12.92). Moreover, even if it had been shown to be viable, “the mere presence of an alternative scheme offers no justification to resist a proposal that is otherwise acceptable, and statute and policy compliant” (IR 12.77).

– One of the more surprising aspects of the decision is the inspector going out of his way to endorse the so-called “internal heritage balance” method of assessing heritage harm following Palmer (Court of Appeal, 4 November 2016), despite numerous subsequent judgments emphasising that such an approach should be used with caution (see recently the Court of Appeal judgment on Bramshill which I covered in my 12 March 2021 post).

While the inspector was at pains to make his view clear that such an “internal heritage balance” approach was “perfectly legitimate”, and this was endorsed in the Secretary of State’s letter, it actually made no difference to the conclusion reached.

The inspector thus carried out an initial balancing exercise of heritage harm against heritage benefits, prior to the NPPF 196 test considering the wider public benefits. In doing so, he found that “there would be no harm caused to the special architectural and historic interest of the listed building […and] no need to consider paragraphs 195 or 196 because considered in the round, the proposals would cause no harm to the significance of the designated heritage asset affected” (IR 12.75-12.76).

What the inspector had done, though, was exactly the same as carrying out the NPPF 196 test, and simply stopping after the heritage benefits because the scales were already tipped in their favour, and so there was no need to include the wider public benefits too. In fact, the inspector then carried out the NPPF 196 test doing this anyway (at IR 12.78-12.81), leaving it unclear as to why the “internal heritage balance” approach was taken in the first place.

It’s certainly a topical issue. In the middle of my writing this post, judgment was handed down in Juden v London Borough of Tower Hamlets (Sir Duncan Ouseley, 21 May 2021) – another social media cause celebre, the “mulberry tree” case. See discussion at paragraphs 59 to 87 on ground 3 (“inclusion of heritage benefits when assessing the level of heritage harm”).

– It is common, thanks partly to the shared application form these days, for applications for planning permission and listed building consent to share the same description of development. Unusually, in this case, the inspector sought during the inquiry to understand exactly which works should be the subject of each application, resulting in an amendment to the description for the listed building consent – a useful reminder of the proper scope of listed building consent in section 7 of the Act (for “works which would affect its character as a building of special architectural or historic interest”), and that despite their often parallel consideration by planning authorities, they are separate regimes with separate legislative and policy considerations.

Here was a proposal that was supported by Tower Hamlets officers and members, supported by Historic England, recommended for approval by an independent inspector and approved by the Secretary of State (the decision apparently taken by another minister but “on behalf of” the Secretary of State). In the meantime, commentary in social media and the broadsheet newspapers continues to attack the conclusions reached, repeating arguments that have already been rejected throughout this process.

There are plenty of participants to go at of course – the Secretary of State mentions the Planning Inspectorate (why?); Charles Saumarez-Smith (who appeared at the inquiry) alleges that Historic England “conspicuously failed in their public duty” (how?), and as always everyone has a go at the developer, without putting forward any realistic alternative proposals.

What has led to the Secretary of State’s announcement of a “review of how the Planning Inspectorate and planning policy considers and defends heritage”? An attempt to appease, without implementing substantive changes to the current system, those who wish that somehow a different decision could have been reached? Or something more fundamental? If the latter (and I’m struggling to visualise what form that might take), it needs to get hitched pretty quickly to the planning white paper bandwagon.

Finally, I of course recommend Zack Simons’ 19 May 2021 blog post Old buildings: what’s new in heritage planning? – a brilliant analysis as always.

Simon Ricketts, 21 May 2021

Personal views, et cetera

This week’s 6pm Tuesday 25 May #PlanningLawUnplanned Clubhouse session, provocatively titled, looks more widely at the treatment of planning issues in the media, already with a fascinating list of guest contributors in addition to our usual panel. Invitation to the app here (and, hooray, no longer limited to iphone users).

Have We Got No Planning Bill News For You

Nine months on from that planning white paper, we have seen no external signs of progress.

All eyes on the Queen’s Speech on 11 May 2021. Was there to be a narrowing down of previous options; a reflection on the consultation process; a programme set out of further work to be carried out ahead of the proposed Planning Bill, perhaps some new thinking following longer reflection?

Laws to modernise the planning system, so that more homes can be built, will be brought forward…

Turning to the background notes, there is literally nothing in the section on the proposed Planning Bill could not have been written back at the time of the white paper in August 2020 or that gives any indication as to ministers’ current thinking.

“The purpose of the Bill is to:

Create a simpler, faster and more modern planning system to replace the current one that dates back to 1947, and ensuring we no longer remain tied to procedures designed for the last century.

Ensure homes and infrastructure – like schools and hospitals – can be delivered more quickly across England.

Transform our planning system from a slow document-based one to a more efficient and easier to use digital and map-based service, allowing more active public engagement in the development of their local area.

Help deliver vital infrastructure whilst helping to protect and enhance the environment by introducing quicker, simpler frameworks for funding infrastructure and assessing environmental impacts and opportunities.

The main benefits of the Bill would be:

Providing more certainty for communities and developers, particularly smaller developers, about what is permitted where, through clear land allocations in local plans and stronger rules on design.

Simpler, faster procedures for producing local development plans, approving major schemes, assessing environmental impacts and negotiating affordable housing and infrastructure contributions from development.

Establishing a framework which focuses on positive outcomes, such as environmental opportunities and better designed places.

Digitising a system to make it more visual and easier for local people to meaningfully engage with.

The main elements of the Bill are:

Changing local plans so that they provide more certainty over the type, scale and design of development permitted on different categories of land.

Significantly decrease the time it takes for developments to go through the planning system.

Replacing the existing systems for funding affordable housing and infrastructure from development with a new more predictable and more transparent levy.

Using post-Brexit freedoms to simplify and enhance the framework for environmental assessments for developments.

Reforming the framework for locally led development corporations to ensure local areas have access to appropriate delivery vehicles to support growth and regeneration.

Territorial extent and application

The Bill will extend to the whole of the UK, however the majority of provisions will apply to England.”

In my view there can only be two possible reasons for this “no news” approach:

1. The Government may not yet have reached the necessary decisions – for instance as to how many zoning categories there will be, whether all land will be zoned or just parts of areas; or how this Infrastructure Levy will work. Quite possible. But come on! Nine months, and nothing?

2. Alternatively, the Government may not yet ready to take the political flak from its own that any specific proposals will attract. Despite the lack of any new information the reaction was surprisingly hostile, and even amongst the development industry I only hear at best muted, hedged and qualified support for elements of the white paper: are many politicians or business leaders prepared to be the cheer-leaders for these changes when, inevitably, the going gets politically tough? This will need a plan.

The only “new” element that caught my eye was that the long-flagged proposal to reform environmental assessment processes will now be within the Bill. It is another area where an announcement is overdue. Environment minister George Eustice indicated in his 20 July 2020 speech:

“Later this autumn we will be launching a new consultation on changing our approach to environmental assessment and mitigation in the planning system.”

The consultation never happened. Whether the legislation will indeed not only simplify but “enhance the EU derived framework of environmental assessments for developments” partly depends on what happens with a separate proposal within the forthcoming Judicial Review Bill:

Giving the courts the power to suspend quashing orders in Judicial Review cases, so as to allow defects to be remedied. This will enable the courts to have more flexibility in Judicial Review cases. This may help ensure that, for example, a large infrastructure project is not delayed because an impact assessment has not been properly done”

Steve Quartermain and Lord Matthew Taylor have written about what the Government could now be doing to deliver on many of the objectives of the white paper, without legislation, in their article Government’s Planning White Paper is a slow road to the future (The Independent, 24 March 2021) and I have written about the areas where planning law reform is genuinely needed (but overlooked in the white paper) in my article Please sir, please can we have more planning legislation? (Estates Gazette, 21 November 2020).

I hope we are not now faced with a Bill that is either a fait accompli, given the various areas which genuinely need a great deal more work and engagement, or (as likely) an empty legislative shell, leaving the difficult work for secondary legislation in due course.

Incidentally, as a topical reminder that how the system is operated is as important as how is how it is structured, in the same week as the traditional parading of the Government’s forthcoming legislative programme, we have seen yet another example of the delays to the system that are caused when the Government intervenes in relation to planning applications: the ministerial decision on 13 May 2021 to approve the Whitechapel Bell Foundry application called in on 22 January 2020. Almost 16 months’ unnecessary delay, not to mention much unnecessary cost. Never mind new laws: how much could be achieved by the Secretary of State simply deciding not to call in applications or recover appeals!

But I will leave more detailed commentary on that decision, and on the Secretary of State’s enigmatic subsequent statement on twitter this afternoon, until next week’s thrilling blog post.

Simon Ricketts, 15 May 2021

Personal views, et cetera

This Tuesday we held a #PlanningLawUnplanned Queen’s Speech Clubhouse session. If you attended I hope you found it useful. This Tuesday we’re going to run an essential session about the Clubhouse app itself and how to get the most out of it. All will become clear! Do join us (iphone invitation here if you are not yet a member).

Local Zoomocracy

My team has proved capable of losing 9-0 in any conditions but, because it is another angle on what I was going to write this morning, I was still interested to see this piece yesterday: Premier League’s home edge has gone in pandemic era: The impact of fan-less games in England and Europe (ESPN, 12 February 2021).

Wouldn’t it be interesting to see some statistics on the impacts of virtual local authority meetings and PINS hearings and inquiries on decision making outcomes?

Would that Handforth Parish Council meeting have been any less chaotic if Aled’s iPad, guitars man or Handforth PC Clerk had all been sitting around the same table? A subsequent letter from Land Promoters and Developers Federation policy director John Acres in Planning magazine The Handforth debacle shows that local democracy is too often placed in the wrong hands (registration only) seeks to draw wider conclusions.

I mentioned in my 23 January 2021 blog post Temporary Covid Measures – Planning, Traffic, Local Government: There May Be Trouble Ahead that after 6 May 2021 local authorities may not be able to hold virtual meetings given the expiry on that date of temporary freedom provided by Regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 , pursuant to section 78 of the Coronavirus Act 2020.

In response to that blog post, Hugh Richards (No 5 Chambers) rightly, and probably rhetorically, asked whether local authorities need statutory authority to hold virtual meetings in any event. Well, I took it as a rhetorical question and didn’t reply at the time after I disappeared down a legal rabbit hole trying to arrive at an answer.

I’m pleased to see that the Lawyers in Local Government and Association of Democratic Services Officers are taking urgent steps to try to avoid what would be an unfortunate hiatus – they have obtained an opinion from James Strachan QC, a summary of which is reported as follows:

“(1) There are forceful arguments that can be made that the pre-existing legislation governing local authority meetings under Schedule 12 of the Local Government 1972 Act, and meetings of an executive or a committee of an executive under the Local Authorities (Executive Arrangements (Meetings and Access to Information) (England) Regulations 2012, enable local authorities to hold meetings remotely.

(2) For the present situation to continue after 7 May 2021 with the use of remote meetings, the optimum position would be for further legislation to be passed to make the position clear.

(3) In the absence of such legislation, one resolution would be to obtain a declaration from the courts to obtain clarity as to the legal position under the pre-existing legislation.

(4) The Secretary of State does have (a) power under section 16 of the 1999 Act to make an Order to modify or disapply those restrictions for best value authorities and (b) power under the 2000 Act to make regulations governing executive decision-making bodies to hold remote meetings.”

(LLG & ADSO Obtain Legal Opinion on Virtual Meeting Provisions, 5 February 2021).

The LLG and ADSO intend to seek a declaration from the High Court. Without such a declaration (or legislation) there is inevitably going to be a question-mark over the lawfulness of any local authority resolution passed on or after 7 May by way of a virtual meeting. This is a risk that most applicants would wish to avoid in relation to any contentious planning application.

6 May is of course an important date because local government elections will definitely be proceeding (as far as “definitely” is a word that any of us can still use). The Local Government Association has published much information and guidance relating to the May 2021 local government elections.

Ahead of those elections will be the usual period (previously known as the “purdah period”, now simply and dully, “pre-election period”) when there is heightened sensitivity over decision making. The period will start at the latest on 27 March (22 March for the London elections). Again, the Local Government Association has published detailed guidance.

The period is shorter when it comes to actions and decisions taken being by central Government. As set out in the Commons Library research briefing Pre-election period of sensitivity (23 November 2020), the relevant civil service guidance is as follows:

“The period of sensitivity for UK Government civil servants preceding scheduled local and mayoral elections each May is not fixed to any particular date, but the general convention is that particular care should be taken in the three weeks preceding the elections.”

Applying that ESPN Premier League analysis, it will be fascinating to see the influence of the current restrictions upon election outcomes. Fortunately I don’t have a team. Simon’s iPad will not be making its first appearance at my local parish council meeting this Spring.

Simon Ricketts, 13 February 2021

Personal views, et cetera

Minister Knows Best

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.

Photo from Save Britain’s Heritage website (credit: Dan Glimmer)

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.”

Bob Weston of Weston Homes has indicated that the decision will be challenged (Norwich Anglia Square: Robert Jenrick ‘sided with Nimby brigade’, BBC website, 12 November 2020).

A303 Stonehenge DCO

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.

Manston Airport

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?

Finally, given the infrastructure theme to much of this post, please can I recommend my Town partner Duncan Field’s recent paper in the Journal of Urban Regeneration and Renewal, Overcoming obstacles to planning major infrastructure projects.

Simon Ricketts, 14 November 2020

Personal views, et cetera

For The Future

are probably the three words I most associate with the planning system in England, since you asked.

The main part of this post is a commentary by special guest and fellow Town partner Duncan Field on the Government’s Planning for the future white paper, published on 6 August 2020.

But before we get to that, some initial comments from me on timescales.

The consultation period on the white paper ends on 29 October 2020.

The aspiration in the document is that (subject to time extensions for recent plans) new local plans should be in place by the end of this Parliament, so by Spring 2024. Given that those local plans will take up to 30 months to be put in place under the new system proposed, the necessary primary legislation will need to have been passed and in force, with any necessary accompanying Regulations and guidance, by Autumn 2021.

By way of proxy for legislative timescales, the less ambitious Housing and Planning Act 2016 and Neighbourhood Planning Act 2017 each took around seven months to pass through the necessary Parliamentary stages, which would mean introducing a Bill by the beginning of 2021. One perhaps has to look back to the Localism Act 2011 for planning legislation of equivalent complexity. That took eleven months from soup to nuts.

Something is going to have to give – either there is going to be rushed consideration of these proposals, which still need significant refinement, or that “end of this Parliament” aspiration is going to have to be reconsidered before long.

But in any event, things can be expected to move quickly.

On the subject of timescales, of course there are shorter term measures proposed in MHCLG’s accompanying document “Changes to the current planning system: Consultation on changes to planning policy and regulations”, which is the subject of a shorter consultation period, until 1 October.

The timescales in that document for the four sets of proposals within it are as follows:

· changes to the standard method for assessing local housing need: “Following the outcome of this consultation, the Government will update the planning practice guidance with the revised standard method for assessing local housing need.”

· securing of First Homes through developer contributions in the short term until the transition to a new system: “We intend to begin by making planning policy changes, to ensure that clear expectations are set. However, to ensure that First Homes are delivered, nationwide, on a consistent basis, we are keeping under consideration the option to strengthen the policy through primary legislation at a future date. We also intend to introduce an exemption from the Community Infrastructure Levy for First Homes, to enable delivery prior to wider developer contribution reform. This would require changes to regulations. Lastly, we are also considering significant reforms to the system of developer contributions. We will ensure that First Homes will continue to be delivered under a reformed approach”

· supporting small and medium-sized builders by temporarily lifting the small sites threshold below which developers do not need to contribute to affordable housing: “Following the consultation, a decision will be taken on whether to proceed with this approach. If it is taken forward, this could be through the introduction of a Written Ministerial Statement in the Autumn.”

· extending the current Permission in Principle to major development: “Following this consultation, if we introduce Permission in Principle by application for major development, we aim to introduce amending regulations this Autumn, with the regulations expected to come into force by the end of the calendar year. Changes to the fee structure would require separate changes to the Planning Fees Regulations.”

The white paper is in my view a considered document and less radical than might have been expected, although certainly ambitious in its breadth. Proposals spin out of it, one after the other, often just in a sentence or two. There are of course areas where there needs to be further thought or explanation. For me, there are two big ones in particular:

⁃ the way in which housing numbers are to be set by the Government for individual authorities and how to resolve the inevitable tension between a swifter examination process and a process that allows proposals in a plan (and the basis for proposals not being in the plan) to be properly tested (particularly where the plan is going to be the equivalent of a series of outline planning permissions for its growth areas);

⁃ how this new infrastructure levy is really going to work and how obligations are going to be addressed that presently are dealt with by way of section 106 agreement, in particular the delivery of affordable housing.

There will also have to be a clear working through of the respective powers and responsibilities across the system, as between government, strategic authorities, local planning authorities and neighbourhoods.

I must say that I found Chris Katkowski QC’s explanations in the latest Have We Got Planning News For You episode really helpful in bringing the proposals, and the thinking behind them, to life. And, boring to say, there is no substitute for reading the actual document.

We are going to drill down into the likely practical implications of the proposals in our next webinar, arranged for 5 pm on 13 August. Do register here: https://us02web.zoom.us/webinar/register/WN_ddkW3FG1SeS4j1XuV5KK6A . The panel will be:

• Chris Young QC (barrister, No 5 Chambers)

• Steve Quartermain CBE (consultant, Town Legal LLP)

• Catriona Riddell (Catriona Riddell & Associates)

• Duncan Field (partner, Town Legal LLP)

• Thea Osmund-Smith (barrister, No 5 Chambers)

• Gordon Adams (Battersea Power Station)

• myself

Now, Duncan’s thoughts, as follows:

Planning for the Future begins with some fairly combative language, referring to “our outdated and ineffective planning system” and drawing comparisons with a patched up building which needs to be torn down.

In truth the Government’s proposals do not go quite as far as that and in practice, to continue with the same analogy, we might end up with a better and more sustainable outcome if we were to save the parts of the “patched up building” which have architectural merit. The biggest problem with the current system is not that it is all inherently bad but that it is not sufficiently resourced; it is a pity that planning reforms by successive Governments have never really grappled with that central issue. The good news on this occasion is that the new system will be accompanied by a comprehensive skills and resources strategy for local authorities and key participants in the system; let’s hope the Government delivers on that.

Further on in the document there are some powerful words from the Secretary of State which bring home just how important a time this is for the planning system and what it can deliver.  It is hard to disagree with any of this:

The outbreak of COVID-19 has affected the economic and social lives of the entire nation. With so many people spending more time at home than ever before, we have come to know our homes, gardens and local parks more intimately. For some this has been a welcome opportunity to spend more time in the place they call home with the people they love. For others – those in small, substandard homes, those unable to walk to distant shops or parks, those struggling to pay their rent, or indeed for those who do not have a home of their own at all – this has been a moment where longstanding issues in our development and planning system have come to the fore.

Onto the objectives for reform, which can be summarised as follows:

• Reduce complexity and with it, uncertainty and delay.

• In doing so, deliver a more competitive market with a greater diversity of developers.

• Remove the discretionary nature of individual development management decisions and replace it with a rule-based system of development control.

• In doing so, reduce planning risk and the cost of capital for development.

• Reduce the time it takes to produce a local plan.

• Simplify assessments of housing need, viability and environmental impacts.

• Restore public trust and encourage more widespread public participation.

• Get better at unlocking growth and opportunity, encouraging beautiful new places, supporting town and city centres and revitalising existing buildings as well as new development.

• Harness digital technology.

Linked to this is a long list of desired outcomes including the user experience, home ownership, access to infrastructure, economic growth and innovation.

We then come to the main proposals which the Government intends to bring forward:

1. Local plans

a. These will be simplified so that they only identify land for development, the sites that should be protected and the development that can take place.  There would be three categories of land:

i. Growth – sites suitable for comprehensive development which, once allocated, will have outline approval for development.

ii. Renewal – sites where smaller scale development is appropriate, which would benefit from a statutory presumption in favour of development once allocated.

iii. Protected – sites with environmental or cultural characteristics where development should be subject to more stringent controls.

An alternative approach might be a more binary system (growth and renewal with permission in principle versus protected areas) or more scope for the existing development management approach in areas other than those allocated for “growth”.

b. Plans should become digital, visual and map-based, interactive and data rich, using a standardised approach to support open access.

c. Local plans (and neighbourhood plans) will be more focused on giving clear area-specific requirements for land that is allocated for growth and renewal including design codes; generic development management policies and duplication of national policy and guidance needs to be avoided.

d. Plans should be subject to a single test of achieving sustainable development instead of the current tests for soundness and the duty to co-operate.  There would be no Sustainability Appraisal and instead this would be replaced by a simplified process for assessing the environmental impact of plans.

e. Local plans would meet housing need by reference to a standard method for establishing housing requirements developed and set at a national level; this would mean distributing the national housebuilding target of 300,000 new homes annually, and one million homes by the end of the Parliament, taking into account local factors including constraints, opportunities and affordability.  The Housing Delivery Test would stay.

f. Local plans would have to be brought forward by reference to a fixed 30 month statutory timescale with six stages and individual timings for each stage.

g. Local planning authorities would be under a duty to review their plans every 5 years; powers of intervention would remain such as the issuing of directions and preparation of a plan in consultation with local people.

h. Neighbourhood Plans to be retained but with more focus on form of development to reflect the proposals for Local Plans.

This is a refreshingly clear vision of what local plans might become and a digitalised system would be transformative for the user experience and public engagement. However, there are some big questions around how to encourage strategic planning across local authority boundaries for the bigger than local issues (the Government is open to suggestions), how in practice the “sustainable development” test would work and, linked to that, how robust the new environmental assessment process will be.

Equally as important, what will the effect of these promised changes be on current local plans? Without further incentives or assurances around their continuing effect in any transitional arrangements as we switch over to the new system, there must be a real concern they will be halted in their tracks.

2. Development Management

a. As indicated above, growth areas allocated in a local plan would have outline permission for the principle of development; details would be agreed and full planning permission achieved through a new reserved matters process, a local development order or possibly, on bigger sites, via a development consent order.

b. Renewal areas would benefit from a new statutory presumption in favour of development and would benefit from either a new automatic consenting route where specified forms of development meet design and other prior approval requirements, a faster planning application process or a local or neighbourhood development order.

c. Proposals which do not conform to the local plan in renewal and growth areas could still come forward, exceptionally, through a planning application process.

d. In protected areas, proposals will have to be brought forward via a planning application (subject to any permitted development rights or local development orders) and will be judged against the NPPF.

e. Generally, the development management process will be based on a more streamlined end-to-end process with firm deadlines for determination through a mix of:

i. Digitalisation;

ii. Data access;

iii. Shorter and standardised applications with reduced or limited supporting material;

iv. A standardised approach to technical information, conditions and developer contributions; and

v. Delegation of detailed planning decisions to planning officers where the principle of development has been established.

f. The Government will build in incentives for prompt determination of applications by local planning authorities such as deemed approval of some applications or refunds of application fees.

g. The process will still be subject to call-in powers and appeals but the Government expects the volume of call-ins and appeals to reduce over time.

h. There will be encouragement for faster build out by making provision in local plans/design codes for a variety of development types by different builders (picking up on the conclusions of the Letwin Review).

This vision for the new development management system feels less clear: permission in principle and outline planning permission are used interchangeably in places as a consequence of land being allocated for growth; however, over and above this, there appears to be provision for a “full” planning permission through a new reserved matters system or local development orders or even development consent orders. Would this not remove a lot of the benefit of allocating land for growth?  There is also a myriad of possible ways in which land allocated for renewal might gain consent and, in the meantime, we retain the current planning application process as well.  If the Government is not careful it might add to the complexity of development management.

Certainly, we can all get on board with the much-needed streamlining of the development management process from end to end, with more standardisation, reducing the quantity of application documents and increased use of digital technology.  However, resourcing this change will be key to its success.

3. Building better, building beautiful and sustainable places

Design and place-making is still high up on the Government’s political agenda.  Proposals in this space include the following:

a. A National Model Design Code to be published in the Autumn which will work alongside the National Design Guide and the Manual for Streets; together these are expected to have a bearing on design of new communities and to guide decisions on development. (This will be an early entrant into the current planning system.)

b. Local guides and codes are to be prepared wherever possible to reflect local character but need to have input from the local community before they are given any weight in the planning process.

c. A new expert body will be set up to help local authorities make use of design guidance and codes, as well as performing a wider monitoring and challenge role for the sector.

d. The much-heralded “fast-track” for beauty will be achieved through:

i. The NPPF – which will have provision for schemes that comply with local design guides and codes to be approved quickly;

ii. Legislation to require that sites in growth areas should have a masterplan and site-specific code as a condition of the permission in principle which is granted through allocation in the local plan; and

iii. Widening permitted development rights through the use of “pattern books” for different building types.

e. The NPPF will require targeted consideration of measures to support climate change mitigation and adaptation. (In our view, policy has been playing catch-up on climate change for some time – this is long overdue and should be welcomed.)

f. There will be a quicker and simpler framework for assessing environmental impacts, stepping away from the current frameworks such as Strategic Environmental Assessment, Sustainability Appraisal and Environmental Impact Assessment.  The key requirements for the new framework will be:

i. early consideration;

ii. clear and easy to understand; and

iii. avoidance of duplication.

A further consultation on this is expected in the Autumn.

g. The Government intends to review and update the planning framework for listed buildings and conservation areas, to ensure their significance is conserved while allowing, where appropriate, sympathetic changes to support their continued use and address climate change.

h. Improvements to the energy efficiency standards for buildings will be brought forward to help meet the 2050 net zero commitment.

The intention here is clear and consistent with the recent focus of the Government on design and beauty in the planning system.  The area with the most loaded questions is the promised framework for assessing environmental impact; in our view, there is clear scope to reduce the voluminous and highly technical nature of the current framework but now is not the time to water it down in terms of its ambit and its protective function.  We will have to wait until the Autumn to find out more.

4. Infrastructure

There are radical proposals for the funding of infrastructure:

a. Replace S106 obligations and the current version of Community Infrastructure Levy with a new Infrastructure Levy calculated as a fixed proportion of the development value above a threshold, with a mandatory, nationally-set rate or rates (potentially variable by area).

b. This new levy will be charged on the final value of a development (or an assessed sales value where the development is not sold, e.g. build to rent) by reference to the rate in force when planning permission is granted.  This would have to be paid before occupation.

c. Local authorities would be able to borrow against Infrastructure Levy revenues so that they could forward fund infrastructure.

d. The London Mayoral Community Infrastructure Levy and similar strategic Community Infrastructure Levies in combined authorities could be retained.

e. The Infrastructure Levy Could be extended to capture changes of use without additional floor area and through permitted development.

f. The new levy would be extended to fund affordable housing.  Allowance would be made for in-kind delivery on-site, which could be made mandatory where an authority has a requirement, a capability to deliver on site and wishes to do so. In those circumstances local authorities would be able to specify the form and tenure of the on-site provision.  The Government anticipates that there would need to be a considered policy approach to the risk of imbalance between the value of the agreed in-kind delivery and the fluctuating nature of the levy liability, contingent as it will be on the development value.

g. Local authorities could be given more freedom on how they spend the levy.

There is a lot of detail to be worked through here.  Setting the new levy at a level which does not deter development (and indeed land supply through the price paid by developers) will be key and a difficult issue to judge.  

The Government will also need to be scrupulous in ensuring that affordable housing continues to come forward using levy funds and still comes forward as part of mixed and balanced communities.

The removal of the blunt and inflexible tool that we have come to love or hate in the form of CIL is welcome in our view and with it the removal of a considerable amount of confusing and time-consuming red tape.  For practical reasons – not least delivering site-specific solutions for development – we are not sure we are witnessing the end of S106 obligations or an equivalent just yet but they will undoubtedly be slimmed down.

5. Delivery

The consultation document ends with a few final proposals and thoughts from Government on the delivery of a new planning system:

a. As a first step there is a parallel consultation on changes to the current system including extension of Permission in Principle (by application to major development), the standard method for assessing local housing need, First Homes and supporting SME builders by temporarily lifting the small sites threshold below which developers do not need to contribute to affordable housing. More here: https://www.gov.uk/government/consultations/changes-to-the-current-planning-system

b. The Government sees a potential delivery role for development corporations.

c. The reforms are considered likely to reduce judicial review risk.

d. The need for resources and skills is recognised and will be addressed through a comprehensive strategy.  In principle, the Government’s view is that the cost of operating the new planning system should be principally funded by the beneficiaries of planning gain – landowners and developers – rather than the national or local taxpayer.  Funding may also be achieved through application fees and potentially the new infrastructure levy or- to a limited extent – general taxation.

e. The Government intends to strengthen the powers for local planning authorities to enforce against breach of planning control and provide incentives for enforcement action to be taken.  

To end where this overview began, resources are key and a comprehensive strategy to ensure the sufficiency of funding and skills will be very welcome, as long as it does what it says on the tin. This will be vital to the success of the new system.

We know now what the Government wants to achieve. It is up to all of us in the sector to help them make it work and if parts of the system are worthy of retention for their “architectural” merit, to explain why that is, with reference to the Government’s objectives.

Thanks Duncan.

Simon Ricketts, 7 August 2020

Personal views, et cetera

Blue Christmas

Duncan Field, Victoria McKeegan and I were speculating in our 16 December 2019 planorama vlog as to what the new Government’s legislative programme and policy priorities are likely to be in relation to planning, infrastructure and the environment

We now have the blueprint, in the form of the Queen’s Speech on 19 December 2019 and particularly the 151 pages of background notes published the same day.

There is going to be an “ambitious” planning white paper in due course, but what is promised in the meantime in this very blue paper that these notes represent? The government has little excuse not to deliver on what it has set out, given the size of its majority. The most relevant references are as follows:

Housing (pages 48 to 50):

My government will take steps to support home ownership, including by making homes available at a discount for local first-time buyers.”

The Government will support people to realise the dream of homeownership. One of the biggest divides in our country is between those who can afford their own home and those who cannot.

The Government will shortly launch a consultation on First Homes. This will provide homes for local people and key workers at a discount of at least 30 per cent – saving them tens of thousands of pounds.

The discount on First Homes will be secured through a covenant. This means these homes will remain discounted in perpetuity, supporting people now and in the future who aspire to own a home of their own.

The Government will also renew the Affordable Homes Programme, building hundreds of thousands of new homes for a range of people in different places. This will help us prevent people from falling into homelessness while also supporting further people into homeownership.

We will introduce a new, reformed Shared Ownership model, making buying a share of a home fairer and more transparent. This new model will be simpler to understand and better able shared owners to buy more of their property and eventually reach full ownership.

To deliver on the homes this country needs, the Government is committed to building at least a million more homes over this Parliament. In the coming months we will set out further steps to achieve this, including an ambitious Planning White Paper and funding for critical infrastructure.

The Planning White Paper will make the planning process clearer, more accessible and more certain for all users, including homeowners and small businesses. It will also address resourcing and performance in Planning Departments.

The new £10bn Single Housing Infrastructure fund will provide the roads, schools and GP surgeries needed to support new homes. Alongside First Homes, this will ensure local people truly benefit from house building in their area and build support for new developments

To help those who rent, the Government will build a rental system that is fit for the modern day – supporting landlords to provide high quality homes while protecting tenants. The Government’s Better Deal for Renters will fulfil our manifesto commitments to abolish ‘no fault’ evictions and to introduce lifetime deposits, alongside further reforms to strengthen the sector for years to come.

The Government is taking forward a comprehensive programme of reform to end unfair practices in the leasehold market. This includes working with the Law Commission to make buying a freehold or extending a lease easier, quicker and more cost effective – and to reinvigorate commonhold and Right to Manage.

The Government will ensure that if a new home can be sold as freehold, then it will be. We will get rid of unnecessary ground rents on new leases and give new rights to homeowners to challenge unfair charges. The Government will also close legal loopholes to prevent unfair evictions and make it faster and cheaper to sell a leasehold home.

For those in the social rented sector, we will bring forward a Social Housing White Paper which will set out further measures to empower tenants and support the continued supply of social homes. This will include measures to provide greater redress, better regulation and improve the quality of social housing.

This Government has committed to end rough sleeping by the end of this Parliament. The Government will continue to invest in key rough sleeping interventions, building on the progress that we made last year in reducing rough sleeping numbers. The Government will also continue to support those at risk of homelessness and rough sleeping through the continued enforcement of the Homelessness Reduction Act.

Building Safety Bill (pages 51 to 53):

New measures will be brought forward…to improve building safety.

An enhanced safety framework for high-rise residential buildings, taking forward the recommendations from Dame Judith Hackitt’s independent review of building safety, and in some areas going further by:

Providing clearer accountability and stronger duties for those responsible for the safety of high-rise buildings throughout the building’s design, construction and occupation, with clear competence requirements to maintain high standards.

Giving residents a stronger voice in the system, ensuring their concerns are never ignored and they fully understand how they can contribute to maintaining safety in their buildings.

Strengthening enforcement and sanctions to deter non-compliance with the new regime, hold the right people to account when mistakes are made and ensure they are not repeated.

Developing a new stronger and clearer framework to provide national oversight of construction products, to ensure all products meet high performance standards.

Developing a new system to oversee the whole built environment, with local enforcement agencies and national regulators working together to ensure that the safety of all buildings is improved.

We will also legislate to require that developers of new build homes must belong to a New Homes Ombudsman.

Fire Safety Bill (pages 54 to 55):

New measures will be brought forward…to improve building safety.”

Clarifying that the scope of the Fire Safety Order includes the external walls of the building, including cladding, and fire doors for domestic premises of multiple occupancy.

Strengthening the relevant enforcement powers to hold building owners and managers to account.

Providing a transitional period for building owners and managers (the “responsible person”) and Fire and Rescue Services to put in place the infrastructure for these changes.”

National Infrastructure Strategy (pages 90 to 91):

My government will prioritise investment in infrastructure…”

The National Infrastructure Strategy will be published alongside the first Budget, and will set out further details of the Government’s plan to invest £100 billion to transform the UK’s infrastructure.

The Strategy will set out the Government’s long-term ambitions across all areas of economic infrastructure including transport, local growth, decarbonisation, digital infrastructure, infrastructure finance and delivery.

The Strategy will have two key aims:

To unleash Britain’s potential by levelling up and connecting every part of the country. Prosperity will be shared across all of the UK, and long- standing economic challenges addressed, through responsible and prudent investment in the infrastructure.

To address the critical challenges posed by climate change and build on the UK’s world-leading commitment to achieve net zero emissions by 2050.

The Strategy will also provide the Government’s formal response to the National Infrastructure Commission’s 2018 National Infrastructure Assessment, which made a series of independent recommendations to government across all sectors of economic infrastructure (transport, energy, digital, waste, water and flood management).”

Rail reform and High Speed Rail 2 (West Midlands – Crewe) Bill (pages 101 to 103)

Last year the Government launched a ‘root and branch’ review of the railways led by Keith Williams. The Review is the first comprehensive assessment of the rail system in a generation and is tasked with making ambitious proposals to reform the rail industry.

The Review is focused on reforms that will put passengers at the heart of the railway, provide value for taxpayers and deliver economic, social and environmental benefits across Britain.

The Government will publish a White Paper informed by the recommendations next year. Among other things, this will end the complicated franchising model to create a simpler, more effective system.

The Government has also committed to a number of major investments in the railway, including:

o Midlands Rail Hub, to improve services around Birmingham and throughout the West and East Midlands;

o Northern Powerhouse Rail;

o Reopening a number of the lines and stations closed under the

Beeching cuts in the 1960s; and,

o Significant upgrades to urban commuter and regional services outside London.

Separate to the wider review of the railway system, the Government awaits the review, of the High Speed Two (HS2) network led by Doug Oakervee which is looking at whether and how to proceed with HS2, including the benefits and impacts; affordability and efficiency; deliverability; and scope and phasing, including its relationship with Northern Powerhouse Rail.

Without prejudice to the Oakervee Review’s findings and any Government decisions that follow, it is expected that the High Speed Rail (West Midlands – Crewe) Bill will be revived in this Parliament. The Bill was first introduced in Parliament in July 2017 and will enable Phase 2a of HS2. The Bill passed through the House of Commons and had completed Second Reading in the House of Lords before the dissolution of the previous Parliament. Following revival it would begin its next stages in the House of Lords.

English Devolution (pages 109 to 110):

My government…will give communities more control over how investment is spent so that they can decide what is best for them.”

We are committed to levelling up powers and investment in the regions across England and allowing each part of the country to decide its own destiny.

This means proposals to transform this country with better infrastructure, better education, and better technology.

We will publish a White Paper setting out our strategy to unleash the potential of our regions, which will include plans for spending and local growth funding.

It will provide further information on our plans for full devolution across England, levelling up powers between Mayoral Combined Authorities, increasing the number of mayors and doing more devolution deals.

These increased powers and funding will mean more local democratic responsibility and accountability.

We remain committed to the Northern Powerhouse, Midlands Engine, and Western Gateway strategies.

Business rates (page 111):

To support business, my government will…bring forward changes to business rates.

The Government is committed to conducting a fundamental review of business rates.

The Government recognises the role of business rates as a source of local authority income and will consider input from the sector as part of the review of business rates. Further details on the review will be announced.

We are committed to increasing the retail discount from one-third to 50 per cent, extending that discount to cinemas and music venues, extending the duration of the local newspapers discount, and introducing an additional discount for pubs.

We will also progress legislation to bring forward the next business rates revaluation by one year from 2022 to 2021 and move business rates revaluations from a five-yearly cycle to a three-yearly cycle. This will allow the Government to press ahead with delivering an important reform that has been strongly welcomed by business.

More frequent revaluations will ensure that business rates bills are more up- to-date reflecting properties’ current rental values. Moving to three-yearly revaluation will make the system more responsive to changing economic conditions.

Environment Bill (pages 112 to 114):

To protect and improve the environment for future generations, a bill will enshrine in law environmental principles and legally-binding targets, including for air quality. It will also ban the export of polluting plastic waste to countries outside the Organisation for Economic Co-operation and Development and establish a new, world-leading independent regulator in statute.

Establishing new long term domestic environmental governance based on: environmental principles; a comprehensive framework for legally-binding targets, a long term plan to deliver environmental improvements; and the new Office for Environmental Protection.

Improving air quality by setting an ambitious legally-binding target to reduce fine particulate matter (PM2.5), the most damaging pollutant to human health. The Bill also increases local powers to address sources of air pollution and brings forward powers for the Government to mandate recalls of vehicles when they do not meet legal emission standards.

Protecting nature by mandating ‘biodiversity net gain’ into the planning system, ensuring new houses aren’t built at the expense of nature and delivering thriving natural spaces for communities. We will improve protection for our natural habitats through Local Nature Recovery Strategies and give communities a greater say in the protection of local trees.

Preserving our resources by minimising waste, promoting resource efficiency and moving towards a circular economy. These measures include extended producer responsibility, a consistent approach to recycling, tackling waste crime, introducing deposit return schemes, and more effective litter enforcement. We will also ban the export of polluting plastic waste to non- OECD countries, consulting with industry, NGOs, and local councils on the date by which this should be achieved.

Introducing charges for specified single use plastic items. This will build on the success of the carrier bag charge and incentivise consumers to choose more sustainable alternatives.

Managing water sustainably through more effective legislation to secure long- term, resilient water and wastewater services. This will include powers to direct water companies to work together to meet current and future demand for water, making planning more robust, and ensuring we are better able to maintain water supplies.

Climate change (pages 115 to 118):

My government will continue to take steps to meet the world-leading target of net zero greenhouse gas emissions by 2050. It will continue to lead the way in tackling global climate change, hosting the COP26 Summit in 2020.”

We will build on our progress with an ambitious programme of policy and investment, with our first Budget prioritising the environment. This will help deliver the green infrastructure needed to improve lives and achieve Net Zero, including by investing in carbon capture, offshore wind, nuclear energy, and electric vehicle infrastructure so that individuals are always within 30 miles of a chargepoint. We will make sure we help lower energy bills investing in the energy efficiency of homes, schools and hospitals. And away from home, we will use our £1 billion Ayrton Fund to develop affordable clean energy for developing countries.

The government will continue to use our position as a global leader in this area by hosting the UN Climate Change Summit in Glasgow in 2020 (COP26). We will ask our partners to match the UK’s ambition.

With a focus on nature based solutions at our upcoming COP summit, at home we will be substantially increasing our tree-planting commitment and creating a £640 million new Nature for Climate fund.

Our natural environment is one of our greatest assets, and can play a crucial role in the fight against climate change. This government will:

introduce a landmark Environment Bill – the first one in twenty years – that will create an ambitious environmental governance framework for post Brexit, as well as banning the export of plastic waste to non-OECD countries;

establish a new £500 million Blue Planet Fund to help protect our oceans from plastic pollution, warming sea temperatures and overfishing;

lead diplomatic efforts to protect 30 per cent of the world’s oceans by 2030; and,

in our trade negotiations, never compromise on our high environmental protection

We will also ensure that we are protecting our citizens by investing £4 billion in flood defences and lowering energy bills by investing £9.2 billion in the energy efficiency of homes, schools and hospitals.

We will increase our ambition on offshore wind to 40GW by 2030, and enable new floating turbines.

We will support decarbonisation of industry and power by investing £800 million to build the first fully deployed carbon capture storage cluster by the mid-2020s; and £500 million to help energy-intensive industries move to low-carbon techniques.

Constitution and democracy (pages 126 to 127):

A Constitution, Democracy and Rights Commission will be established. Work will be taken forward to repeal the Fixed-term Parliaments Act.”

Setting up a Constitution, Democracy & Rights Commission that will:

Examine the broader aspects of the constitution in depth and develop proposals to restore trust in our institutions and in how our democracy operates. Careful consideration is needed on the composition and focus of the Commission. Further announcements shall be made in due course.

It’s a blue, blue, blue, blue Christmas.

The usual askew perspectives and commentary will continue here in 2020.

Simon Ricketts, 21 December 2019

Personal views, et cetera

Dial P For Purdah

Parliament will dissolve just after midnight on 6 November 2019, allowing the required 25 working days before a general election on 12 December. In accordance with the Prime Minister’s 28 October statement the new Parliament will first meet “before 23 December.”

So we will have a period of “purdah” from 6 November to 12 December. What does that mean in practice? Well because, elections come around so frequently these days, my 21 April 2017 blog post Parliament, Purdah, Planning remains pretty much up to date.

Central government

The blog post sets out the Cabinet Office guidance issued the day before start of the 2017 election period. Updated guidance will probably be issued in the next few days but I don’t expect major changes. It included the following:

During the election period, the Government retains its responsibility to govern, and Ministers remain in charge of their departments. Essential business must be carried on. However, it is customary for Ministers to observe discretion in initiating any new action of a continuing or long term character. Decisions on matters of policy on which a new government might be expected to want the opportunity to take a different view from the present government should be postponed until after the election, provided that such postponement would not be detrimental to the national interest or wasteful of public money.”

It will be interesting to see if there will be a final spurt of decision letters being issued in the next couple of days (so far just the Secretary of State’s overturning on 31 October 2019 of the Mayor of London’s direction of refusal for proposals by Harrow School, awarding costs against the Mayor, ouch).

If a consultation is on-going at the time this guidance comes into effect, it should continue as normal. However, departments should not take any steps during an election period that will compete with parliamentary candidates for the public’s attention. This effectively means a ban on publicity for those consultations that are still in process.

As these restrictions may be detrimental to a consultation, departments are advised to decide on steps to make up for that deficiency while strictly observing the guidance. That can be done, for example, by:

– prolonging the consultation period; and

– putting out extra publicity for the consultation after the election in order to revive interest (following consultation with any new Minister).

Some consultations, for instance those aimed solely at professional groups, and that carry no publicity will not have the impact of those where a very public and wide-ranging consultation is required. Departments need, therefore, to take into account the circumstances of each consultation.”

Wouldn’t it have been nice if there were plenty of consultations underway!

As for public Bills, they automatically fall from the date of dissolution – so farewell the Environment Bill. It will be for the new Parliament to determine whether to reintroduce it and in what form.

Local government

So how does this period of purdah affect local government activity? For the purposes of the Government’s code of recommended practice on local government publicity this is a period of “heightened sensitivity”.

Local authorities should pay particular regard to the legislation governing publicity during the period of heightened sensitivity before elections and referendums […]. It may be necessary to suspend the hosting of material produced by third parties, or to close public forums during this period to avoid breaching any legal restrictions.

During the period between the notice of an election and the election itself, local authorities should not publish any publicity on controversial issues or report views or proposals in such a way that identifies them with any individual members or groups of members. Publicity relating to individuals involved directly in the election should not be published by local authorities during this period unless expressly authorised by or under statute. It is permissible for local authorities to publish factual information which identifies the names, wards and parties of candidates at elections.

In general, local authorities should not issue any publicity which seeks to influence voters…”

However, it is important to note that, as set out in the Local Government Association’s 2017 guidance Purdah: A short guide to publicity during the pre-election period, the election is not an excuse not to determine planning applications:

Local government sometimes views this period as a time when communications has to shut down completely. This is not the case, and the ordinary functions of councils should continue, but some restrictions do apply, by law, to all councillors and officers.”

Planning Inspectorate

During the purdah period, I do not expect the Planning Inspectorate to be issuing any decisions or reports in relation to controversial proposals which may be used for electoral advantage by any party.

Going to be nice and quiet isn’t it?

Simon Ricketts, 1 November 2019

Personal views, et cetera