Market Value Minus Hope Value = ?

Stop me if you’ve heard this song before but…

The clamour continues for Parliament to revise the principles of compulsory purchase compensation, currently set out in section 5 of the Land Compensation Act 1961.

None of the clamourers have, as far as I know, set out precisely what amendments they would make to section 5, but the concern appears to be that the principles allow land owners to benefit unduly from a windfall, by allowing them in part to be compensated for the hope that planning permission would have been granted for a valuable form of development on the land being acquired, were it not for the compulsory acquisition, and that this is unfair; goes beyond what might be considered to be “market value”, and/or is holding back the development of new homes.

This isn’t a new song. In my 20 May 2017 blog post, Money For Nothing? CPO Compensation Reform, Land Value Capture, I tried to read between the lines of what was being said in the February 2017 housing white paper and in the May 2017 Conservative manifesto on the question of reforming the compulsory purchase compensation process.

But the volume is getting louder.

The issue is being considered by the House of Commons Communities and Local Government Select Committee in its land value capture inquiry, the final session of which is on 5 September 2018, with evidence to be given at that final session by planning minister Kit Malthouse.

A pan-political coalition of 16 NGOs including Shelter, the National Housing Federation, the TCPA, CPRE and Crisis wrote an open letter to the Secretary of State on 18 August 2018 calling for reform. It was reported in absurd terms on the Sun that day:

A little more (but not much more) detail is set out in Shelter’s blog post An unlikely coalition for land reform (21 August 2018). Shelter has been lobbying on this issue, from the time that its head of policy and housing development was Toby Lloyd, now Theresa May’s housing adviser within Number 10.

The IPPR think tank (one of the signatories to the open letter) has also now published a report The Invisible Land: The hidden force driving the UK’s unequal economy and broken housing market (28 August 2018). It has the same tune:

I hesitated before writing this blog because the response is so obvious.

The law does not operate at all in the way that these people assume. No real life examples are given. Indeed, there is no indication that any practising CPO surveyor or lawyer has assisted with either the Shelter-led group’s work or the IPPR’s work. Show of hands?

The law is as set in, for example:

⁃ the written evidence submitted to the Select Committee inquiry by the Compulsory Purchase Association. The evidence includes examples of claims made following the Olympic Park CPO.

⁃ Jonathan Stott’s blog post Land value capture – Wild goose chase could lead to changing compulsory purchase legislation for the worse (11 June 2018)

⁃ Richard Harwood QC’s article (August 2018) (with his April 2018 paper given to the Compulsory Purchase Association on Land Value Capture a useful more detailed and wide ranging read).

It’s odd how the pendulum slowly swings. The refrain always used to be that the compensation system, providing the land owner with equivalence and nothing above that to reflect the compulsory nature of the acquisition, encouraged elongated objections and disputes in a way that apparently was not the case in, for example, France. Parliament (under a Labour Government), sought to address that in the Planning and Compulsory Purchase Act 2004 by introducing home loss payments, for qualifying residential occupiers, amounting to 10% of the market value of their interest up to £61,000 and, for qualifying property investors and business owners, basic loss payments amounting to up to 7.5% of the market value of their interest up to £75,000, together with additional occupier loss payments amounting up to 2.5% of the market value of their interest up to £25,000. In retrospect, the numbers were probably not large enough materially to affect the behaviour of those faced with compulsory purchase but the principle is perfectly logical given the monies to be saved by the public purse in removing or reducing objections to compulsory purchase.

It’s not rocket science to deduce that threatening to acquire land at less than market value (ie less than what the owner could have received for the land if he or she had chose to sell it on the open market – albeit of course the last thing he or she usually wants is to sell it!) would lead to:

⁃ owners being even more likely to hold out against compulsory acquisition in whichever way they can.

⁃ if the hope of securing permission for development is to be ignored (accepting that a land owner can never claim compensation for any value generated by the scheme underlying the compulsory acquisition – we are only talking about the prospect of development in the no scheme world), land owners and promoters of development not risking their own money in the promotion of land for development. Why would they, if the acquiring authority is going to be able to step in and effectively take the benefit of that work for free?

Maybe the problem is one of terminology. Do people think that “hope” value is something that is just that, hope, rather than a forensic examination of whether, and if so, what, development would have been likely to be approved if the scheme underlying the CPO had been cancelled on the valuation date? Maybe they should read some decisions of the Lands Chamber of the Upper Tribunal (the Lands Tribunal, in old money) or of the courts, for instance last year Bridgend County Borough Council v Boland (Court of Appeal, 14 July 2017). Do they think that the Tribunal has ever been over-generous to a claimant in reaching its determination as to what might have been approved in the no scheme world? Examples would at least take the debate forward.

The IPPR paper points to Germany by way of example, where the German zoning system obviously largely removes the concept of hope value – you’re zoned or you’re not. But that is not at all our UK planning system. Should it be? Well that’s another interminable debate and shall we get Brexit out of the way first before, er, we move towards a continental planning system?

Of course, the idea might work as part of a system where all major development is promoted by a public body, whether or not backed by a private sector development partner. But that is a world away from where we are, is alien to our market based economy and likely to lead to long bottle-necks given the lack of suitable resources at present within most local authorities, as well as lead to questionable outcomes in terms of procurement and in terms of sustainable, economically efficient, development. The public sector does not even have the resources to allocate the right land for development without massive input from the private sector in promoting specific sites (terminology problem again – “promoting” isn’t about PR but about spending, at risk, large amounts of money on preliminary technical work, to a significant level of detail, to ascertain constraints, infrastructure requirements and capacity).

And of course, there may be political arguments for acquiring land compulsorily at less than market value. But let’s be clear that such an exceptional political intervention would need to be justified. If the current clamour is in truth a clamour for the state to be able to dispossess people of their property for less than what it is worth, be brave enough to say so, explain why it is necessary in the public interest and then we can have the debate on that footing.

But if the idea is indeed to pick up land at or near existing use value, conceptually that really isn’t difficult under the present system. Be a brave authority by allocating land for a new settlement, covering land in as many ownerships as is necessary, making clear that of course it has to be developed in its entirety to be sustainable and that piecemeal development will not be acceptable. Be clear in your policy making that recourse will be had to compulsory purchase powers where necessary. Set out the extent to which the development is dependent on new infrastructure. Make clear where the new infrastructure would not be coming forward were it not for the new settlement proposal. The practical difficulty lies more with the fact that, for compulsory purchase to be a credible delivery mechanism such that the local plan policy can be shown to be “sound”, most local authorities would need private sector backing and most private sector participants would not underwrite significant compensation liabilities without being pretty certain that there will be planning permission. This is the scratch in the record that you don’t get past. Here’s where you need to lift the stylus and move it on a bit, whether that’s a role for Homes England funding or by allowing significant new settlements to be promoted as an NSIP so that the necessary planning and compulsory purchase steps can take place at the same time.

The frustrating thing is that the compulsory purchase compensation process is far from perfect and much could be done to reduce uncertainty for acquiring authorities and their private sector partners (usually fully underwriting the authority’s liability by way of an uncapped CPO indemnity agreement). The areas where the risk of significant compensation liability can discourage use of compulsory purchase are not questions of what hope value can be attributed to the prospect that the land might have been developed for other valuable purposes in the no scheme world (where the situation arises – not often – the position is usually well documented and can largely be quantified). In my experience the scary risks, where large and unpredictable compensation numbers can in fact arise, are more in such areas as:

⁃ does the land being acquired hold, in the no scheme world, a ransom value over other adjoining land which might have been developed in the no scheme world?

⁃ where business premises are being acquired, is the business likely to claim disturbance compensation on the basis of total extinguishment (by demonstrating that there is not a reasonable relocation opportunity open to it)? If so, the acquiring authority will often have little feel for what the ultimate justifiable compensation figure will be due to lack of access to information that is confidential to the business, other than published accounts.

But my basic pleas are:

⁃ for the Government to take a careful look at how the present system works in practice before making any amendments to section 5.

⁃ for those seeking to justify changes to the system to be more precise about their concerns, based on real examples, and as to what changes they are seeking.

⁃ for Parliament one day to have time to review properly and consolidate compulsory purchase legislation.

Oh and, obviously, the answer to the question was that Market Value minus Hope Value = < Market Value.

Simon Ricketts, 31 August 2018

Personal views, et cetera

The Big Society Theory

We’ve got to have rules and obey them. After all, we’re not savages. We’re English, and the English are best at everything.” (W. Golding, Lord of the Flies)

David Cameron was reported in a Third Sector piece last year as accepting that his Big Society agenda (first set out in detail in his 19 July 2010 Liverpool speech) had its failings. Whilst he did not “accept the criticism that the agenda, which encouraged more voluntary participation in public and community life and services, was simply a cover to disguise public sector funding cuts“, he believed “the fair criticism that was made kind of came in two parts”. The first was that “you can’t expect all of these big society organisations, all of these social entrepreneurs, all of these charities and voluntary bodies to spring into life”.

The second fair part of the criticism, he said, was that “you can’t expect them to be able to cover all of the country, every region of the country, all in one go”.

These organisations were “very often under-capitalised, have problems in replicating their service” and had “difficulties expanding and getting the access to great technology or brilliant management or great systems”, said Cameron.”

Well, plenty of us with practical experience of the Localism Act 2011 would have a few additional comments. It is interesting to look back at what we were predicting when the Bill was going through Parliament – I don’t think I was that far off the mark in a Financial Times piece, Future Plans (27 May 2011, subscription-only). We all had concerns about the complicated procedures within the new legislation, likely to be most used those with the time and money, not always with pro-development objectives in mind. Neighbourhood plans have generated serial litigation, due to their often unhappy fit with other tiers of plan-making. Procedures such as the Community Right To Build have hardly been used. Others, such as the designation of land or property as Assets of Community Value lead to much activity and adversarial process (eg the cases referred to in my 14 July 2018 blog post, 2 ACV Disputes), whilst ultimately being pretty toothless.

Has the Big Society, localism, neighbourhood planning – call it what you will – led to better, more positive, planning outcomes that meet public needs? What should be the respective roles of democratically elected local government and of community-based bodies?

A short LinkedIn post by Nick Dines prompted me to have a quick look at a paper published this week by DCMS, Civil Society Strategy: building a future that works for everyone (9 August 2018).

What is Civil Society for a start?

Civil society refers to all individuals and organisations, when undertaking activities with the primary purpose of delivering social value, independent of state control. The government wants to build a partnership with charities and social enterprises, with volunteers, community groups and faith groups, with public service mutuals, socially responsible businesses and investors, and with the institutions which bring sports, arts, heritage, and culture to our communities.”

The purpose of the strategy is to set out “how the government will work to support and to strengthen civil society, without compromising its independence.”

What caught my eye in Nick’s post was a reference to the possible implications of this for planning. In fact, without any detail, the document drops some pretty worrying hints and one wonders what co-ordination has so far taken place between DCMS and MHCLG:

The government will launch the Innovation in Democracy programme to pilot participatory democracy approaches, whereby people are empowered to deliberate and participate in the public decisions that affect their communities. The government will work with local authorities to trial face- to-face deliberation (such as Citizens’ Juries) complemented by online civic tech tools to increase broad engagement and transparency.”

Public votes on planning decisions? That would be popular no doubt, for those wishing to derail controversial schemes but we may as well tear up the current planning system and NPPF – and forget about meeting any objectively assessed needs. Bottom-up planning? It’s that Big Society Theory, folks.

Furthermore:

The government will continue to encourage communities to use the community rights available to them. We will issue revised guidance to help communities take ownership of local assets. We will signpost support and advice available to communities to improve and shape where they live through the new Community Guide to Action and the MyCommunity website, the licence for which we have recently renewed.

[…] the government is exploring means of ensuring community-led enterprises which take over public assets or services are able to secure the funding they need

I note that this is in a period within which local government struggles to maintain libraries and other public services, with pressure to cut budgets in fact increasing (see for instance a Room 151 piece, Councils anticipate cutting services to ‘legal minimum’ published on 9 August 2018, that reports on a recent survey of council leaders carried out by the New Local Government Network). The very definition of “civil society” by implication excludes local government. Money for “community-led enterprises” rather than democratically-led local authorities? It’s that Big Society Theory, folks.

And:

The government will explore the suggestion that the Social Value Act should be applied to other areas of public decision-making such as planning and community asset transfer.

..which is an enigmatic and rather odd comment. The Public Services (Social Value) Act 2012 imposes a duty on public authorities, in procuring public services, to consider:

(a) “how what is proposed to be procured might improve the economic, social and environmental well-being of the relevant area, and

(b)  how, in conducting the process of procurement, it might act with a view to securing that improvement.

If what is proposed is the extension, beyond contract procurement and into planning, of the duty to consider how the relevant decision “might improve the economic, social and environmental well-being of the relevant area“, this would add nothing of any value whatsoever given, for instance, the very definition of sustainable development at the heart of the old and new NPPF.

Of course let’s do whatever we can to increase people’s engagement with their communities but also, more importantly (in the face of the increasing threat posed by anti-democratic populism – where a large social media following can be more influential than votes in the ballet box), local representative democracy. Neighbourhood planning and localism should not be at the expense of local representative democracy. If district and borough councils are seen as having real clout and the wherewithal to improve the conditions of their constituents, people will turn out to vote and an increasingly wide and talented cross-section of the local community will be prepared to invest time in carrying out roles as elected councillors for their wards. That’s my civil society strategy anyway.

Who wants the conch next?

Simon Ricketts, 12 August 2018

Personal views, et cetera

NB I thought this was a great bit of community enterprise though:

Judicious Review?

It’s the examination season: daughter, university finals; son, A levels; me, asked by a journal for my thoughts on the interim report published by the Raynsford Review (Planning 2020: Interim report of the Raynsford review of Planning in England May 2018). I’m sharing my first thoughts with you so please set me right, because I really don’t want just to write a piece damning the whole process with faint praise.

I wrote a blog post on 28 August 2017, Another Review when the review was announced, instigated by the Town and Country Planning Association “to identify how the Government can reform the English planning system to make it fairer, better resourced and capable of producing quality outcomes, while still encouraging the production of new homes.”

The review’s chair, Nick Raynsford, is the right person for the role. His professional life inside and outside Parliament has focused on planning and housing issues.

However, I was sceptical as to the governmental appetite for further significant reform of the planning system and queried the role of any recommendations without endorsement from the major political parties. That scepticism increased when the next month the Labour party announced its own review of the planning system (see my 30 September 2017 blog post Mending The Planning System (Has Anyone Tried Switching It Off And On Again?). I also queried the role of any fundamental review of the planning system outside any wider political vision:

The planning system is a machine, big cogs, little cogs, to deliver the government of the day’s social, economic and environmental objectives. Unless the review is just to be about process, what objectives are to be assumed in framing recommendations?

Turning to the interim report published last month. It’s all to play for because a “final round of feedback” is sought by 16 July 2018.

The 71 page document is strong on the evolution of the modern planning system from 1947, previous reviews and on summarising the current system. It recounts the numerous public events and meetings held by the review team and the 197 submissions of evidence received, before setting out seven “emerging policy themes“, nine “basic questions which define the direction of reform” and, provisionally, nine “propositions for a new planning system“.

So we have (each accompanied in the document by explanatory text):

Emerging policy themes

• the degree to which the current system is delivering on
its objectives;

• how much power spatial planning should have
(positive and negative);

• how the balance of planning powers should be
distributed between central and local government;

• the right spatial structure for planning, including local
government structure and boundaries;

• the degree to which communities should have
meaningful control over their own local environment,
and the nature of community rights; and

• issues of betterment and fair land taxation.

Basic questions which define the direction of reform

What is the justification for a spatial planning system in

a market economy?

What is purpose of a spatial planning system, and how should this be expressed?

What should the scope and powers of the spatial planning system be?

What should the governance arrangements for these structures and institutions be, and what role, and how much power, should there be for the citizen in decision-making?

What are the basic outcomes that people can expect from the planning process?

Can we simplify the legal structures of planning?
What institutional structures are required to support

spatial planning?
What taxation or charging measures are necessary to

deal with the economic impact of land use regulation?

What sorts of skills, practice and culture do planners

need to support the system?

Propositions for a new planning system

Proposition 1: Planning in the public interest

Proposition 2: Planning with a purpose

Proposition 3: A powerful, people-centred planning system

Proposition 4: A new covenant for community participation

Proposition 5: A new commitment to meeting people’s basic needs

Proposition 6: Simplified planning law

Proposition 7: Alignment between the agencies of English planning

Proposition 8: A fairer way to share land values

Proposition 9: A new kind of creative and visionary planner

The conclusion of the analysis in the work so far is that planning is “at a historically low ebb“. It is in a worse state than it has been for 75 years and that “the last thing that is needed is more short-term tinkering with the nuts and bolts. Instead, what is required is a deep and hard look at the fundamentals – what should be the purpose of planning, how can it best be structured to deliver the outcomes that the country needs, and how can all parties be engaged most constructively in the process?

You begin to see the breadth and ambition of the project. But if wholesale change is to be prompted by a process that is not sponsored by government or government-in-waiting, there is a huge job of work to be done by the review panel between now and the final report, which is to be published in the Autumn for the party conferences.

First, avoid generalities. Set out with quantified evidence why and where the planning system is not delivering. What detailed points were made in the responses and do they reflect the views of all participants in the planning process?

Secondly, bring the issues to life. The interim review in tone is part academic, part old-fashioned tub-thumping, empty of people, empty of place. If you want to see how to do it, read The Secret Barrister’s devastatingly detailed critique of the modern criminal justice system.

Thirdly, set the problems and gripes that we have with our planning system in context. The planning system may appear at times and in places to be on its knees, or dysfunctional in the way that it operates. But in comparison with areas of public administration, whisper it quietly, it may not be so bad. I have mentioned the criminal justice system, but the health service, benefits, the rating system even (having just read Jerry Schurder’s 8 June 2018 blog post What we could learn from the rest of the world – if only the Government was interested). I have practised under every iteration of the planning system since 1985. If there was a golden age, it was before then I assure you. And yet, by and large, outcomes are fair (if slow), people have their say, development happens or doesn’t happen. Let’s also set our system in an international context – how is our English system performing as compared to the rest of the United Kingdom or Europe?

Fourthly, recognise and reflect on the inherent contradictions. The interim report talks of giving the public a greater say in decision-making but then of a new commitment to meeting people’s basic needs such as the right to a home and of the “deployment of modernised Development Corporations to deal with particularly demanding issues such as flood risk, economic renewal, and population change“. It talks of simplified planning laws but then of a four tier system of neighbourhood, local, regional and national alongside development corporations and of new interventions to share land values.

Fifthly, give appropriate emphasis to the need to encourage the production of new homes, specifically referred to in the remit of the review. So far I see little in the interim report that would give that encouragement. Indeed, the document strongly criticises the current permitted development right to convert office uses to residential, without any detailed analysis of whether the disbenefits do indeed outweigh the benefit acknowledged in the report (between 86,665 and 95,045 units delivered between 2010 and 2017).

Sixthly, explain how we are going to get from here to there. The document reports the planning system as having “been in an almost constant state of flux over the past decade and a half” but how would we reform the system to Version Raynsford without equivalent upheavals? And if we assume that there is no prospect of wholesale change within the shelf life of the report, what might be less ambitious, but still helpful, interventions?

Seventhly, acknowledge that the next ten years will see enormous changes, whether economic-political (Brexit, possibly), social (how we live, work, shop) and technological (spatial implications but also the changes that plantech will bring to the very processes of planning and public engagement).

In the meantime, utopian thinking shouldn’t deflect us from events which may have more immediate implications.

First, Sir Oliver Letwin’s build-out review is continuing at pace. It is looking to “explain the significant gap between housing completions and the amount of land allocated or permissioned in areas of high housing demand, and make recommendations for closing it”. Sir Oliver has indicated that he will publish “analytical work by the end of June in the form of a Draft Analysis. This will contain only a description of the problem and of its causes

Secondly, MHCLG will be publishing this month a consultation paper in relation to further potential widening of permitted development rights. The review panel won’t enjoy that I’m sure.

Thirdly, practical thinking continues on land value capture. Commons HCLG Committee on Land Value Capture held an oral evidence session on 4 June 2018 (read the transcript) with a further session on 11 June at which the TCPA’s Hugh Ellis (who should take huge credit for the work that he has put into the Raynsford review process) will appear, alongside others including lawyers Barry Denyer-Green, Stephen Ashworth and Vicky Fowler.

Fourthly, the Labour party continues to announce policy reviews, most recently in April, Housing For The Many.

All of this is interesting of course (and, despite my carping, the Raynsford interim report is an impressive and illuminating piece of work) but until there is a very different political climate (with the time and power to think about big, complicated changes for the public good – and even then town and country planning should take its place in the queue), we plainly will need to carry on making the best of the current system. It creaks, but it isn’t broken. Of course, at the very least, consolidation of the legislation would be helpful, but at present even that seems an impractical dream.

Views?

Simon Ricketts, 9 June 2018

Personal views, et cetera

Nothing Was Delivered

“Nothing was delivered/And I tell this truth to you/Not out of spite or anger/But simply because it’s true” (Bob Dylan)

It was the first meeting on 5 February of the prime minister’s housing implementation taskforce. The subsequent press statement summarises the event as follows:
Today the Prime Minister chaired the first meeting of the Housing Implementation Taskforce at Downing Street.

She stressed the integral role all Government departments have in helping to fix the broken housing market and deliver 300,000 additional homes by the mid-2020s.

The taskforce discussed the steps Government has already taken, including further investment at the Budget, planning reform, releasing land faster, the Housing White Paper and building more affordable housing. They emphasised the key role of Homes England in driving forward change, and also focused on the supply of new housing, public sector land sales, land banking, house-building skills and building the infrastructure needed for new housing developments.

The Prime Minister reiterated that a step change was needed right across Government and that all departments needed to think creatively about how they can contribute to building the homes the country needs.
That “300,000 additional homes by the mid-2020s” reference is an interesting one, reflecting the Government’s previous 11 January 2018 announcement of the creation of Homes England:
Homes England will play a major role in fixing the housing market by helping to deliver an average of 300,000 homes a year by the mid-2020s.
This is surely a tactical step back from the Conservative party’s 2017 manifesto commitment, with no longer any pre-2022 election target:
We will meet our 2015 commitment to deliver a million homes by the end of 2020 and we will deliver half a million more by the end of 2022.”
A significant proportion of the country’s homes will need to come forward in London – the Mayor of London’s draft London Plan sets a target of around 65,000 homes a year, a significant increase from the previous plan figure of 42,000. 
These figures are only going to be achieved with a large degree of consensus between central government, the Mayor, boroughs and local communities. If I were prime minister (perish the thought) I would be worrying that in many areas, but particularly in London, there is increasing “spite or anger” (in the words of Mr Dylan). Inevitably, in any year with borough elections, planning becomes politicised but this year, with the repercussions of the Grenfell tragedy, the predictions of Conservative council losses and the internal battles within the Labour party, this is particularly so. EG has tracked the number of refusals in London up to the end of 2017. It makes for uncomfortable reading and the position will only be worsening. 


Against that background, is there a crisp appeals process? Not at all. The Planning Inspectorate’s performance statistics are still poor:


Anecdotally, many developers and authorities are keeping politically controversial decisions away from committees until the other side of the 3 May local government elections, even though the formal purdah rules, summarised in a useful Local Government Association guide, largely allow for statutory processes to carry on.
The politically charged atmosphere in many boroughs isn’t just leading to refusals of permission against officers’ recommendations – leading in turn to officers having to spend time defending appeals, with inevitable repercussions for capacity to cope with other applications in the system – but it’s impeding the work of boroughs that seek to achieve housing development, particularly in relation to estate regeneration schemes, without which those London numbers are not going to be met. 
Progress on the Haringey Development Vehicle initiative, brought forward by Haringey Council with private sector joint venture partner Lendlease, has now been halted by leader councillor Claire Kober, with no further decisions to be taken before purdah commences on 26 March until after the 3 May local election. Given that, following sustained pressure over the project, she announced on 30 January that she will not be standing for re-election, its long term future may be in doubt. This was a strategy to bring about widespread development on sites in the council’s ownership, including the proposed delivery of up to 6,400 homes. The HDV would in due course formulate development proposals for sites and make planning applications, applications which would be assessed as against planning policy, with the power for the Mayor to intervene in the usual way, but plainly in Haringey even the nature of the vehicle to be used to bring about development, presumably because of the role to be played in it by a private sector developer, was seen by objectors as unacceptable. 
There is room for debate in a democracy as to the form that regeneration should take and the extent and types of affordable housing to be provided but if the HDV is not to happen, what will? In current political and financial reality, my fear is that an opportunity to increase housing at scale, including affordable housing, will be lost. It is vital that affordable housing, with tenures to meet needs, is provided. Will the collapse of the HDV render this more or less likely? What’s the alternative? What’s the objectors’ plan? To continue this position until a 2022 general election? 
Whilst the politics played out, unpleasantly according to Councillor Kober’s account, Ouseley J was writing his judgment in Peters v London Borough of Haringey. This was a crowdfunded judicial review that had been brought on behalf of campaign group Stop HDV, seeking to establish that the council had acted outside its powers in proceeding with the project. The hearing had taken place over two days in October 2017 but Ouseley J’s judgment, over 50 pages long, was only handed down on 8 February 2018. 
The main ground of challenge was a legalistic one if ever one there was: that the council had acted outside its powers in establishing with Lendlease a limited liability partnership as the vehicle to take forward its strategic aims, on the basis that section 4(2) of the Localism Act 2011 provides that where “a local authority does things for a commercial purpose, the authority must do them through a company“. The judge rejected the argument:
To my mind, there is no doubt but that the Council’s purpose in entering into the arrangements setting up the HDV and governing its operation, including the relationship between the two partners, cannot be characterised as “a commercial purpose” within the scope of the Localism Act. Even more clearly is its dominant purpose not commercial. Any commercial component is merely incidental or ancillary, and not a separate purpose.”

“…the phrases to which Mr Wolfe took me do not show a separate commercial purpose, whether minor or not. It is important to examine why this is all being done. The purpose behind the Council’s entering into the HDV and associated arrangements is not that of a property investor, simply seeking to make a profit or to achieve a return on development or improved rentals. The purpose of the Council is to use and develop its own land to its best advantage so that it can achieve the housing, employment and growth or regeneration objectives that it has laid down. In order to achieve as much as it can, it has to achieve the best consideration on any disposal of its land; and it must be in other respects financially prudent, to produce returns in various ways which can be used to further its policy objectives. Achieving the return is neither the activity nor its purpose of itself.”

“The acquisition of other land in the context of regenerating a large estate is a commonplace, and, backed by compulsory purchase powers, it demonstrates not one whit that a separate activity of property development is being undertaken.”
In any event, the judge considered that the challenge in relation to this ground and others (lack of consultation, Equality Act) had been brought out of time. I understand that the claimant is likely to seek permission to appeal. 
In another part of London, progress is still slow on another regeneration project that has been to the High Court and back, the Aylesbury Estate. I covered in my blog post Regeneration X: Failed CPOs the decision of the Secretary of State to decline to confirm Southwark Council’s CPO based on his concern as to the effects of acquisition on leaseholders, a decision which was subsequently quashed by consent following a challenge brought by the council. A second inquiry that has been taking place into the order was adjourned on 31 January 2018 to resume for a further two weeks on 17 April. Judging from a ruling by the inspector prohibiting further filming at the inquiry it has been a lively event so far. 

According to the council’s statement of case:
The acquisition of the Order Land will enable demolition of the existing buildings in order to replace the 566 existing units of social and privately owned housing with a mixed tenure development comprising 830 homes. Of these, 304 will be social rent, 102 will be intermediate (affordable homes available as shared ownership or shared equity) and 424 will be private (of which 48 will be for open market rent and the remainder for sale). Included in the social rent homes are 50 extra care units and 7 units for people with learning difficulties.”
Inevitably, whatever the gains in housing numbers to be achieved (and indeed the affordable housing of all tenures to be provided), there will be legitimately held concerns on the part of residents directly affected. The Mayor announced on 2 February 2018 “mandatory ballots of residents for schemes where any demolition is planned as a strict condition of his funding“. 
Meanwhile, elsewhere in Southwark, Delancey has continued to face resistance in relation to its proposed redevelopment of the Elephant and Castle centre. At a committee meeting on 16 January, members overturned an officer’s recommendation to grant planning permission. A final decision has now been deferred, following a revised offer as to affordable housing and other commitments reportedly made by the developer. 
Delivery of the right schemes, in a way which maximises the potential for affordable housing and the wide range of other requirements set out in the draft London Plan will not be easy. How will land owners and developers respond? Will the Mayor continue to intervene to direct refusal where the affordable housing proportion offered is considered to be less than the maximum reasonably achievable? Will he use his call-in powers where boroughs unreasonably withhold permission for schemes which would deliver homes at scale? The Government had proposed back in 2015 reducing the threshold above which the Mayor could intervene on planning applications from 150 to 50 homes but unless the Mayor is seen as using his existing powers regularly and proactively to increase housing delivery, this may remain on the Government’s to-do list. 
The housing numbers that the Government is targeting will not be achieved without an active and engaged private sector. What if land owners choose not to release their land? There is a remarkable degree of consensus between the Conservative and Labour parties as to the desirability of using compulsory purchase powers. I covered the Conservative party’s manifesto thinking in my blog post Money For Nothing? CPO Compensation Reform, Land Value Capture (20 May 2017), in which I tried to set out some of the complexities arising from any proposal to change CPO compensation principles so as to strip out planning “hope” value (as opposed to just being smarter about using CPO powers in a way that hope values haven’t arisen in the first place). There was much publicity this month arising from an announcement from Labour shadow minister John Healey reported in the Guardian on 1 February that “Labour is considering forcing landowners to give up sites for a fraction of their current price in an effort to slash the cost of council house building“. 
Landowners currently sell at a price that factors in the dramatic increase in value when planning consent is granted. It means a hectare of agricultural land worth around £20,000 can sell for closer to £2m if it is zoned for housing.

Labour believes this is slowing down housebuilding by dramatically increasing costs. It is planning a new English Sovereign Land Trust with powers to buy sites at closer to the lower price. 

This would be enabled by a change in the 1961 Land Compensation Act so the state could compulsorily purchase land at a price that excluded the potential for future planning consent.”
I haven’t seen any more detailed analysis of the proposal or indeed any fleshing out of the idea of an English Sovereign Land Trust. Personally I would prefer to see Homes England grasp the nettle, with their existing wide compulsory purchase powers, to acquire sites at a scale which would be difficult to achieve without compulsory purchase, thereby minimising “no scheme world” values. Labour’s English Sovereign Land Trust concept sounds very rural in concept and not a substitute for facing up to difficult challenges about maximising use in cities of public sector land, about densifying suburbs and about effective approaches to estate renewal. 
And given the supposed cross-party support for increasing housing delivery, wouldn’t it be good to try to depoliticise the process where we can, rather than demonise the participants whether from public or private sector? I’ve previously blogged about the multiplicity of reviews being undertaken, to which list can now be added the CLG Commons Select Committee’s land value capture inquiry, for which the deadline for evidence is 2 March 2018). What scope can we find for consensus, about priorities, about the respective roles of the public and private sector, about funding of social housing and about the appropriate use of compulsory purchase?
Simon Ricketts, 10 February 2018
Personal views, et cetera

Green Belt Policy: Will It Change?

In all the noise and spin ahead of the Autumn budget on 22 November, I would be wary of reading anything substantive into stories such as these:
Telegraph 4 November 2017 Philip Hammond risks Tory backlash with gamble on opening up the green belt 

Times 30 October 2017 Hammond rebuffed over budget plan for green belt housing
 I don’t believe that there will be anything to change the current policy direction. This Government surely does not have the strength, the resolve or the thinking space. The existing tests in the NPPF for reviewing green belt boundaries and for determining applications for planning permission in the green belt will be retained, with the minor changes that have previously been announced. In my view the real action isn’t around what the policies say, but how they are applied. 

Local plans
At present, green belt boundaries may be reviewed as part of local plan processes. Established green belt boundaries should only be changed in “exceptional circumstances”. Boundaries are intended to be long term, capable of enduring beyond the plan period. 
The Government’s February 2017 Housing White Paper proposes, at paragraph 1.39, embellishing that “exceptional circumstances” test:
“Therefore we propose to amend and add to national policy to make clear that: 

* authorities should amend Green Belt boundaries only when they can demonstrate that they have examined fully all other reasonable options for meeting their identified development requirements, including: 

    * making effective use of suitable brownfield sites and the opportunities offered by estate regeneration; 


    * the potential offered by land which is currently underused, including surplus public sector land where appropriate; 


    * optimising the proposed density of development; and 


    * exploring whether other authorities can help to meet some of the identified development requirement.”


* and where land is removed from the Green Belt, local policies should require the impact to be offset by compensatory improvements to the environmental quality or accessibility of remaining Green Belt land. We will also explore whether higher contributions can be collected from development as a consequence of land being released from the Green Belt. ”

Wording along these lines is likely to be added to the draft revised NPPF, promised early in 2018, but will make no material difference in practice – the additional guidance may look like tough talk but is largely a statement of the present position. 
Statistics can be used in various ways. At one end of the spectrum there is concerted lobbying by CPRE (see for instance their paper Green Belt Under Siege 2017). But the Government’s own figures DCLG statistical release Local Planning Authority Green Belt: England 2016/17 7 September 2017 sets the issue in context:
Overall there was a decrease of 790 hectares (less than 0.05%) in the area of Green Belt between 31 March 2016 and 31 March 2017. In 2016/17, eight local planning authorities adopted new plans which resulted in a decrease in the overall area of Green Belt compared to 31 March 2016.”


Regardless of how “exceptional circumstances” are defined, it is presently too easy either for local planning authorities to delay their plan making or to seek to justify not meeting their objectively assessed housing needs on the basis of green belt constraints. Threats of intervention on the part of the DCLG have come to nothing and the duty to cooperate (even when elevated to a duty to provide statements of common ground) is still too far too uncertain as to its effect, allowing local politicians to justify to themselves not assisting with adjoining authorities’ unmet requirements. Furthermore, the Government’s previous politically driven interventions such as in delaying for some time the Birmingham Development Plan at the request of local Conservative MP Andrew Mitchell hardly promote a positive approach. 
The problem isn’t so much specifically about green belt policy but more generally about how effectively to penalising authorities that do not properly plan – and surely about how positively to encourage authorities on every local plan review to consider whether boundaries should be reviewed – possibly even ahead of looking outside their boundaries where adjoining authorities are not readily in a position to pick up their unmet needs? The prolonged delays to plan making in green belt areas such as parts of Hertfordshire and Bedfordshire are a serious indictment of the present system. 
If the imminent draft London Plan as expected fails to encourage the boroughs to review their green belt boundaries, will that not be an opportunity missed? By all means require exceptional circumstances, but rigid adherence to the status quo for political reasons has social, environmental and economic costs. 

(map from LSE paper A 21st Century Metropolitan Green Belt 2016)

Planning applications and appeals
Green belt designation has never been an absolute bar to development. There are two main routes to consent:
First, is the proposal not “inappropriate development” within the meaning of paragraph 89 and 90 of the NPPF? For residential and commercial development the most main potential exemptions are:
* “the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;

* the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces; 


* limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; 


* limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.

Secondly, even if the proposal is for “inappropriate development”, can the applicant demonstrate “very special circumstances”? The guidance is unspecific as to what will amount to very special circumstances: “Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.” The balancing of considerations is left to the decision maker. 

By way of recent example, the Secretary of State allowed an appeal on 1 November 2017 for a proposed development by Oaklands College and Taylor Wimpey comprising “new and refurbished college buildings, enabling residential development of 348 dwellings, car parking, associated access and landscaping.” His decision letter concluded as follows:
“35. The Secretary of State agrees with the Inspector (IR 248) that the proposal is inappropriate development in the Green Belt, which is harmful by definition. He further agrees there would be additional harm by reason of a reduction in openness and by virtue of encroachment into the countryside. Therefore he attributes substantial weight to the harm to the Green Belt caused by the proposed development. 

36. The Secretary of State agrees with the Inspector that there would be some limited harm to the character and appearance of the area (IR249) and he gives limited weight to this harm. 

37. The Secretary of State agrees with the Inspector that the delivery of significant improvements to the College weighs very heavily in favour of the proposal (IR 251). The Secretary of State gives the educational benefits significant weight in favour of the proposal. He also agrees with the Inspector that in light of the lack of a five year housing land supply, the proposed market and affordable housing is a significant benefit (IR 252) that carries significant weight in favour of the proposal. Additionally, the Secretary of State agrees that the enhancement of beneficial Green Belt uses carry moderate weight in favour of the proposal. The Secretary of State gives limited weight to improvements to the non- designated heritage assets (IR 253). 

38. The Secretary of State shares the Inspector’s view that the effect on protected trees in Beaumont Wood, the relationship with the policies related to the Watling Chase Community Forest, and the effect on traffic and flooding in the Sandpit Lane area are neutral factors in the planning balance (IR 254). 
39. Overall, the Secretary of State agrees with the Inspector that the considerations summarised above clearly outweigh the harm to the Green Belt, justifying the proposal on the basis of very special circumstances (IR 255). He therefore concludes that relevant policies relating to development in the Green Belt do not indicate that the proposed development should be restricted. The Secretary of State also concludes that the adverse impacts of the proposed development would not significantly and demonstrably outweigh the benefits.

40. Overall, the Secretary of State agrees with the Inspector that there are persuasive material considerations which warrant a decision other than in accordance with the development plan (IR255).”
The application of the NPPF’s tests in relation to plan making and decision taking inevitably gives rise to disputes both as to interpretation (see the many court rulings listed by Landmark Chambers in relation to each of the relevant paragraphs of the NPPF) and as to the weight to be applied to the various material considerations (meaning unpredictability, together with many speculative applications). But with even greater inflexibility (after all the policy hurdles are already extremely high) there would be another set of problems. 

Any politician is going to be cautious about a major policy shift. It is an open question as to whether the public understands the policy basis for green belt – the way in which, often vast, swathes of land around our cities have been identified as an ad hoc series of urban containment zones:
“- to check the unrestricted sprawl of large built-up areas;

– to prevent neighbouring towns merging into one another; 


– to assist in safeguarding the countryside from encroachment; 


– to preserve the setting and special character of historic towns; and 


– to assist in urban regeneration, by encouraging the recycling of derelict and other urban land

However, free market solutions advocated by the likes of the IEA and the Adam Smith Institute are wide of the mark. The idea of the green belt, albeit largely abstract, albeit largely restrictive and not driven by specific landscape, environmental or conservation attributions, has captured the public imagination like no other planning invention – perhaps, in a very British way, because it simply carries the expectation of being left alone. The challenge is how, without watering down existing green belt principles, to prevent the designation being used for local political purposes as an argument that increases inequality, renders housing unaffordable, increases commuting distances and drives urban development to unacceptable densities or sensitive non green belt locations? 
In the same way as in its early years the objective of green belt designation moved away from providing open space for recreation and towards a more restrictive role, over time can it move again towards a positive role more closely aligned with other landscape, land use or nature conservation designations?
Another eighty years or so should crack it. 
Simon Ricketts, 11 November 2017
Personal views, et cetera

Everyone Knows This Is Nowhere: Devolution

The prospect of devolution can perhaps cause people to get too excited (Brexit; Catalonia) or perhaps not excited enough (the last Labour Government’s experiment with regional assemblies; the current roll-out of combined authorities). Predictably, this blog post focuses on the latter category. 
First of all, in order to understand planning in Great Britain you need to understand its post-devolution administrative structure, following the enormous changes of the last 20 years. 
It is now 20 years since referendums in Scotland and Wales led to the creation of the Scottish Parliament and National Assembly for Wales, with the Good Friday Agreement and Northern Ireland Act 1998 following a year later, leading to the creation of the Northern Ireland Assembly. 
Slowly but surely, four different planning systems have developed, summarised in a January 2016 House of Commons library briefing paper, Comparison of the planning systems in the four UK countries.
In relation to English devolution issues, perhaps dull is good, with arguments often focusing on worthy but dull questions of efficiency of administration and decision making, and the unlocking of funding streams. 

Directly elected regional administration of London was reintroduced in 2000 following a referendum in May 1998, in which there was a 72% majority vote (out of a 34% turnout) for the establishment of the Greater London Authority, to be led by an elected Mayor. Despite the low turnout, the size of the “yes” vote did seem to recognise the need for a unified voice for London that had been missing since the abolition of the Greater London Council in 1986. 
The Labour Government of the time attempted to use elements of the London model to introduce directly-elected regional assemblies across England. However, it became plain that there simply was not the public appetite. Voters rejected the proposal for a regional assembly for the North East 77.9% to 22.1%, on a turnout of 48% in November 2004 and other proposed referendums for the North West and for Yorkshire and the Humber were then dropped. Whilst there is still some nostalgic harking back to the regional planning of the time, the ridiculously complicated structure in the Planning and Compulsory Purchase Act 2004 took the form of regional spatial strategies, prepared by ‘regional planning bodies’, comprising regional assemblies of co-opted local authority members. The process was closely overseen by central Government and indeed each final regional spatial strategy was published by the Government. So, hardly devolution – and with regional boundaries that often had no historic or emotional basis – although a potentially helpful administrative structure for coordinating local authorities and determining local authority housing targets.
Regional spatial strategies, along with all mentions of the “r” word including the regional planning boards, regional assemblies and regional development agencies (save for the London Development Agency, which survived a little longer) were swept away following the coalition Government coming into power in 2010. The new mantra of localism dictated the removal of top-down targets in favour of the bottom-up idea that it would be more effective for local authorities to determine how to meet their and their neighbours’ housing needs via the Localism Act 2011’s “duty to cooperate”, a Cheshire cat’s smile if ever one there was. Coordinated investment into the regions, including application of EU structural funds, became more difficult following the abolition of the regional development agencies, a vacuum only partly filled by LEPs (voluntary local economic partnerships between local politicians and business people). 
But local politicians (the public? I’m not so sure) continued to press for greater devolution of powers to the regions, particularly against the background of the greater autonomy given to Scotland in particular in the run-up to the 2014 Scottish independence referendum (where there was a 55% vote against independence on an 85% turnout – that was clearly a vote that clearly did matter to its electorate). The Government embarked on negotiating a series of ‘devolution deals’ with groups of local authorities. The first deal, to create the Greater Manchester Combined Authority, was announced in November 2014. 
The Cities and Local Government Devolution Act 2016 was, as set out its explanatory notes, “intended to support delivery of the Government’s [2015] manifesto commitment to “devolve powers and budgets to boost local growth in England”, in particular to “devolve far-reaching powers over economic development, transport and social care to large cities which choose to have elected mayors” and “legislate to deliver the historic deal for Greater Manchester”. The Act takes forward a number of reforms which are intended to allow for the implementation of devolution agreements with combined authority areas and with other areas. It is enabling legislation which provides a legislative framework which can be applied flexibly to different areas by secondary legislation.” 

The devolution deals to date are listed on the Local Government Association’s website. The powers agreed to be devolved have been different in each case. The position is well summarised in a House of Commons library briefing paper, Devolution to local government in England (23 November 2016):


It will be seen that some deals include the power to create a spatial plan for the area, and/or the power to establish Mayoral Development Corporations. Some deals will also permit the combined authority to use compulsory purchase orders, with the consent of the local authority in which the land or property is located.

I looked specifically at the West Midlands Combined Authority in my blog post Devo West Mids (24 October 2016). 
So far we have had mayoral elections for six combined authorities, which all took place in May 2017. Turnouts were all very low indeed:

Whilst regional devolution may not capture the attention of voters (in fact I’m sure it is utterly confusing to most), undoubtedly it presently brings the promise of significant funding streams from Government. Professor Janice Morphet has also pointed in her 2016 book Infrastructure Delivery Planning to the work of economist Paul Krugman in showing the growth in national GDP that can result from investment decisions being made at a sub-national level. More practically, big personalities are important. That has been the experience in London – and Greater Manchester and the West Midlands both now have strong Mayors, in the shape of Andy Burnham and Andy Street respectively, who will undoubtedly drive those great city regions in an equivalent way. 

A further election, in the Sheffield City Region, is due to be held in May 2018. Why the delay in Sheffield? The city region, which will control additional spending of £30m a year over the next 30 years, was originally going to include Chesterfield and Bassetlaw (which authorities would thereby be able to participate in the significant government funding available). However, Derbyshire County Council (which would automatically thereby be drawn into the arrangement and which opposed “powers for key services in the town being handed to a Sheffield City Region Mayor”) successfully judicially reviewed the process, alleging consultation flaws in R (Derbyshire County Council) v Barnsley, Doncaster, Rotherham and Sheffield Combined Authority, Secretary of State and Chesterfield Borough Council (Ouseley J, 21 December 2016). Chesterfield is in the county of Derbyshire and Bassetlaw is in the county of Nottinghamshire. Ouseley J accepted that the views of the public should have been, but were not, specifically sought as to whether Chesterfield Borough Council should be a part of the combined authority. The case led first to the Sheffield City Region mayoral election being delayed by a year and then to Chesterfield and Bassetlaw withdrawing their applications for full membership (in the case of Chesterfield after Derbyshire had resolved in June 2017 to carry out a full referendum of all Chesterfield residents). 
The momentum generally appears to have paused. Section 1 of the Cities and Local Government Devolution Act 2016 places a duty on the Secretary of State to provide annual reports to Parliament setting out progress on devolution across England as soon as practicable after 31 March each year. The Local Government Association is concerned that this year’s report has not yet been published.   
We are at an interesting point. 

First, am I being too downbeat about the benefits of further devolution? I see that Lord Heseltine and Ben Rogers are speaking on Giving Power to the People: The Future of Devolution at the Future City Festival on 19 October 2017. Is there currently the political, or public, will?
Secondly, what now for London? In my view, the devolution of power to London (including reducing to an extent the powers of individual boroughs) has been a success. The moves towards greater powers for the Mayor of London have continued, which is welcome, but should there be more? Ben Rogers wrote an interesting FT piece Would more independence for London benefit the nation? on 3 October 2017.

Thirdly, and most importantly, what changes will Brexit bring? For a start we will see an end to EU structural funding, much of which was to be passed to local areas, although the Government has guaranteed any spending of these funds that is agreed before the UK leaves the EU. But more fundamentally, as again Professor Janice Morphet has pointed out, in her 2017 paper (not yet published) to the Oxford Joint Planning Law Conference we risk losing part of the drive towards devolution that arises from the EU’s principles of subsidiarity and fairness, which translate into for instance the application of structural funds and the development of the Trans European Networks which have been an impetus for transport infrastructure investment. 
Ultimately, might it be the case that some devolution is ruled by the heart and some by the head? English devolution may be in the latter category, described indeed this week in EG this week by Jackie Sadek as a “fragile flower”. Let’s hope it’s not trampled upon by politicians with only a March 2019 deadline in mind. 
Simon Ricketts, 6.10.17
Personal views, et cetera

Mending The Planning System (Has Anyone Tried Switching It Off And On Again?)

When I recently blogged about the Raynsford review of the planning system, I really wasn’t expecting shadow CLG Secretary of State Roberta Blackman-Woods to announce yet another one at the Labour party conference, at a CPRE fringe event. This is CPRE’s write-up. It will be called “People and Planning”. According to Building magazine we can expect proposals to streamline the compulsory purchase system and “tougher measures to stop developers sitting on sites“, as well as a rethink on CIL and on the Government’s recently announced OAN methodology consultation. 
Labour leader Jeremy Corbyn had the following passages in his conference speech, leading on from references to the Grenfell Tower tragedy:
We have a duty as a country to learn the lessons from this calamity and ensure that a changed world flowers . I hope that the public inquiry will assist. But a decent home is a right for everyone whatever their income or background. And houses should be homes for the many not speculative investments for a few. Look at the Conservative housing record and you understand why Grenfell residents are sceptical about their Conservative council and this Conservative government.

Since 2010: homelessness has doubled, 120,000 children don’t have a home to call their own, home ownership has fallen, thousands are living in homes unfit for human habitation. This is why alongside our Shadow Housing minister John Healey we’re launching a review of social housing policy – its building, planning, regulation and management.

We will listen to tenants across the country and propose a radical programme of action to next year’s conference. But some things are already clear tenants are not being listened to.
We will insist that every home is fit for human habitation, a proposal this Tory government voted down. And we will control rents – when the younger generation’s housing costs are three times more than those of their grandparents, that is not sustainable.

Rent controls exist in many cities across the world and I want our cities to have those powers too and tenants to have those protections. We also need to tax undeveloped land held by developers and have the power to compulsorily purchase. As Ed Miliband said, “Use it or lose it”. Families need homes.

After Grenfell we must think again about what are called regeneration schemes.

Regeneration is a much abused word.

Too often what it really means is forced gentrification and social cleansing, as private developers move in and tenants and leaseholders are moved out. 

We are very clear: we will stop the cuts to social security.

But we need to go further, as conference decided yesterday.

So when councils come forward with proposals for regeneration, we will put down two markers based on one simple principle:
Regeneration under a Labour government will be for the benefit of the local people, not private developers, not property speculators. 

First, people who live on an estate that’s redeveloped must get a home on the same site and the same terms as before.

No social cleansing, no jacking up rents, no exorbitant ground rents. 

And second councils will have to win a ballot of existing tenants and leaseholders before any redevelopment scheme can take place.

Real regeneration, yes, but for the many not the few.

That’s not all that has to change.”

Liberal Democrats’ leader Vince Cable took a similar theme in his own party conference speech:
“If there is any single lesson from the Grenfell disaster, it is that people in poverty aren’t listened to. Nowhere is inequality more marked than in the housing market. Property wealth for the fortunate coexists with growing insecurity and homelessness for many others. Home ownership, which spread wealth for generations, is no longer a realistic prospect for younger people with moderate means.

To put this right, we must end the stranglehold of oligarchs and speculators in our housing market. I want to see fierce tax penalties on the acquisition of property for investment purposes, by overseas residents. And I want to see rural communities protected from the blight of absentee second home ownership, which devastates local economies and pushes young people away from the places where they grew up. 

Homes are to live in; they’re not pieces on a Monopoly board. But whatever we do with existing homes will not be enough. A doubling of annual housing supply to buy and rent is needed. 

For years politicians have waffled about house building while tinkering at the edges of the market. I want to recapture the pioneering spirit that in the mid-20th century brought about developments like Milton Keynes and the new towns…I want to see a new generation of garden cities and garden villages spring up in places where demand presently outstrips supply.

But we know that private developers alone will not make this happen.Just as social reformers in the 1950s and 60s saw government roll up its sleeves and get involved with building, government today has a responsibility to be bold…and to build more of the homes we need for the 21stcentury. It is utterly absurd that councils are allowed to borrow to speculate in commercial property…but are stopped from borrowing to build affordable council houses.”

The shadow of Grenfell of course looms over the politics of planning and social housing. Secretary of State for Communities and Local Government, Sajid Javid, had earlier in the month announced a “green paper on social housing“:
A wide-ranging, top-to-bottom review of the issues facing the sector, the green paper will be the most substantial report of its kind for a generation.

It will kick off a nationwide conversation on social housing.

What works and what doesn’t work.

What has gone right and what has gone wrong,

Why things have gone wrong and – most importantly – how to fix them.”
Shelter also put out a press release, big on hyperbole, short on analysis, referring to the ‘legal loophole’ of ‘secret viability assessments’, focusing on the reduced levels of affordable housing achieved in Kensington and Chelsea compared to the borough’s 50% policy target and making the explicit link to Grenfell:
New research from Shelter reveals that a legal loophole has been used by housing developers to avoid building 706 social homes in Kensington and Chelsea – more than enough to house families made homeless from the Grenfell tower fire.”

How is the government’s position on the role of viability in planning (set out in paragraph 173 of the National Planning Policy Framework, a non-statutory, hardly obscure, planning policy document, now over five years’ old) a “legal loophole“?
Poor Raynsford review, is planning is too political for whatever emerges from it to gain traction? Its recommendations are due to be presented to next year’s party conferences. I hope that clear distinctions are drawn between changes to be made to the basic legislative hardware of the system (is it resilient, efficient, clear for users?) and to be made to the software (the NPPF, PPG structure – is it kept up to date to reflect the Government’s policy priorities and guiding users’ behaviour appropriately?), the purpose of the changes being to influence the content, scale, quality and pace of the data processing: individual plans and decisions actually coursing through the system, leading most importantly to delivery of political priorities, whatever they may be for the next Government. The review is somewhat hamstrung by not being able to set out those priorities as its starting point. 
So, what of the Government’s position? Regardless of what will be said at the forthcoming Conservative party conference, surely the current Government is not currently in a strong position to make further major changes. However, there is much unfinished legislative business, arising from:
– partly implemented enabling legislation (Housing and Planning Act 2016, Neighbourhood Planning Act 2017)

– uncompleted consultation processes (the Housing White Paper and associated documents, February 2017; Planning For The Right Homes In The Right Places, September 2017)

– other previously floated initiatives (for instance in the Conservative Party’s 2017 general election manifesto)

– other previous initiatives, partly overlapping with the above (a House of Commons library briefing paper dated 12 July 2017 lists 22 pre-June 2017 announcements that have not yet been implemented, or cancelled). 

 I have tried to take stock of where we are in terms of legislative as opposed to policy changes. This is a list of where I believe we are with the main planning law provisions of the 2016 and 2017 Acts (with relevant commencement dates indicated, although check the detail: in many cases a provision in primary legislation may have been switched on but still requires further secondary legislation for it to have any practical effect):

 Housing and Planning Act 2016 

 * Starter homes – providing a statutory framework for the delivery of starter homes – not in force, not really needed since the Housing White Paper u-turn

* Self-build and custom housebuilding – requiring local authorities to meet demand for custom‐built and self‐built homes by granting permissions for suitable sites – from 31 October 2016

* Neighbourhood planning changes – from 12 May 2016

* Permission In Principle/Brownfield Land Registers

    * Housing and Planning Act 2016 (Permission in Principle etc) (Miscellaneous Amendments)(England) Regulations 2017 – 6 March 2017

    * Town and Country Planning (Permission in Principle) Order 2017 – 15 April 2017

    * Town and Country Planning (Register of Previously Developed Land) Regulations 2017 – 16 April 2017

* Extension of Government’s ability to designate poorly performing LPAs such that non-major applications can be made direct to the Planning Inspectorate – from 12 July 2016

* Planning freedoms schemes – from 13 July 2016

* Resolution of disputes about planning obligations – not in force

* NSIPs including a housing element where functional link or close geographical link – from 6 April 2017

* Powers for piloting alternative provision of processing services – from 12 May 2016 (but no pilots yet)

* Urban Development Corporations/designation of new town areas – from 13 July 2016

* Compulsory purchase changes – mostly from 3 February 2017

Neighbourhood Planning Act 2017 
 * Neighbourhood planning changes – (partly) from 19 July 2017, subject of a previous blog post)

* Power to direct preparation of joint local development documents – not yet in force

* Restrictions on pre-commencement planning conditions – from 19 July 2017 (although Regulations not yet made)

* Restriction on PD rights re drinking establishments

    * Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 2017 from 23 May 2017 (subject of a previous blog post)

* More compulsory purchase changes – partly in force, various commencement dates

 And these are the limited areas where we can expect further legislation:

* CIL reform (probably limited reform in this Parliament)

* Further PD rights? Maybe not. There has been silence in relation to upwards extensions in London and further rural PD rights, although limited light industrial to residential PD rights come into force for three years from 1 October 2017, following amendments to the General Permitted Development Order last year. 

* 20% increase in planning application fees (definitely)

* Completion notices reform (maybe, floated in Housing White Paper, subject of a previous blog post)

* Statutory three month deadlines for Secretary of State decisions (maybe, floated in Housing White Paper)

* Planning appeal fees (maybe, floated in Housing White Paper). 

* Regulations as to the “technical details” procedure for permissions in principle (definitely)

 I had to get my head round all of this in preparing to speak at Conference.*

*The RTPI’s Planning Issues For The Housing Agenda conference on 4 October.

Simon Ricketts, 30.9.17

Personal views, et cetera