I mentioned in the blog post a letter which he had written to all MPs the previous day which had gone into more detail that the statement. I hadn’t included a link to the letter. It is here. What is even more interesting is that there is another letter, of the same date, written just to Conservative MPs. The link to that one is here.
The introduction to the letter to Conservative MPs makes the intended policy direction very clear. For instance:
“Whatever we do at a national level, politics is always local and there is no area that demonstrates this more than planning. Through reforms made by Conservative-led governments since 2010, we have a locally-led planning system – for instance, by scrapping policies like top-down regional targets that built nothing but resentment – and introducing neighbourhood planning. These reforms have delivered a record of which Conservatives can be proud. I also do not need to remind you that under the last Labour government, housebuilding reached its lowest rate since the 1920s.
But there is much more to do to ensure we can build enough of the right homes in the right places with the right infrastructure, and to ensure that local representatives can decide where – and where not – to place new development. As Conservatives, we recognise both the fundamental importance of home ownership and that we can only deliver the homes we need if we bring the communities we represent with us. These are the promises on which we stood in our manifesto and ones that I and the Prime Minister are determined to deliver.
I am therefore writing to set out the further changes I will be making to the planning system, alongside the Levelling Up and Regeneration Bill, which address many colleagues’ concerns. They will place local communities at the heart of the planning system.
As you know I share the views of many colleagues about the current system. That it does not provide the right homes in the right places, and at its worst risks imposing ever more stretching housing targets that are out of touch with reality – leading to developers taking advantage through planning by appeal and speculative development. Communities feel that they are under siege, and I am clear that this approach will never be right or sustainable if we want to build the homes that our communities want and need.”
This Government weaves around planning reform like Kylian Mbappe. First the 2020 white paper, then the u-turn after the Chesham and Amersham by-election, then the Kwarteng “growth growth growth” plan – and now placing house-building delivery firmly in the hands of “communities” – in reality, at root, existing home owners – with a weakened process for local plan examination:
“I will ensure that plans no longer have to be ‘justified’, meaning that there will be a lower bar for assessment, and authorities will no longer have to provide disproportionate amounts of evidence to argue their case.”
Is all of this just another feint, a shimmy past the Tory rebel MPs to ensure that planning reform can actually progress? Or genuine capitulation – genuflection to the election pamphlet needs of political colleagues? Zack Simons doesn’t mince his words in his 8 December 2022 blog post Notes on reform: the Government gives up – essential reading.
The matters to be consulted upon in the forthcoming prospectus are numerous. Steve Quartermain and I were counting them this week and ran out of fingers – the letters include commitments to consultation as to at least the following matters:
Changes to the method for calculating local housing need figures
Dropping the requirement for a 20% buffer to be added to housing land supply numbers for both plan making and decision taking
What should be within the scope of the new National Development Management Policies
Each new National Development Management Policy before it is brought forward
Detailed proposals for increases in planning fees
A New planning performance framework that will monitor local performance across a broader set of measures of planning service delivery, including planning enforcement
Further measures (i) allowing local planning authorities to refuse planning applications from developers who have built out slowly in the past and (ii) making sure that local authorities who permission land are not punished under the housing delivery test when it is developers who are not building
A new approach to accelerating the speed at which permissions are built out, specifically on a new financial penalty
How to address the issue of the planning system being “undermined by irresponsible developers and landowners who persistently ignore planning rules and fail to deliver their commitments to the community”.
Amending national policy to support development on small sites, particularly with respect to affordable housing
Further measures that would prioritise the use of brownfield land
Details of how a discretionary registration scheme for short term lets in England would be administered
Reviewing the Use Classes Order so that it “enables places such as Devon, Cornwall and the Lake District to better control changes of use to short term lets if they wish“.
There is a lot to take in here – both what is written and what is between the lines. To try to help make sense of the prospectus when it lands, there will be a special Planning Law Unplanned clubhouse discussion at 4pm on 4 January 2023 featuring various planners and planning lawyers, including myself, Zack, Steve and many more. Join the event via this link – do RSVP in the link and get it in your diaries.
A deal has been reached between the Government and those rebel MPs who had threatened to derail the Levelling-up and Regeneration Bill. And so we have Michael Gove’s written statement to the House of Commons today 6 December 2022, in the wake of a letter written to all MPs on 5 December 2022 and a 5 December 2022 press statement. Of course, when we talk about the Bill, that is short-hand for the reform package as a whole, including most crucially the proposed amendments to the National Planning Policy Framework.
Those proposed amendments are soon to be fleshed out in the National Planning Policy Framework prospectus, “which will be put out for consultation by Christmas” (i.e. by the time that the Commons rises on 20 December 2022). It is going to be thin gruel for those of us who believe that this country has a housing crisis and that part of the solution to that crisis is to build more homes, where they are most needed.
I’ll just summarise here what the written ministerial statement covers. The letter to MPs goes into further detail.
There will be an amended method for calculating local housing need, which will be “advisory”. “It will be up to local authorities, working with their communities, to determine how many homes can actually be built, taking into account what should be protected in each area – be that our precious Green Belt or national parks, the character of an area, or heritage assets. It will also be up to them to increase the proportion of affordable housing if they wish.”
Of course it is not currently mandatory that local authorities plan for the level of local housing need arrived at via the current standard method, but there is a heavy onus on authorities to justify departures.
Paragraph 35 of the current NPPF sets out the “soundness test”, including that plans are “positively prepared”, meaning that they are “providing a strategy which, as a minimum, seeks to meet the area’s objectively assessed needs; and is informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated where it is practical to do so and is consistent with achieving sustainable development.”
Paragraph 61 of the current NPPF says this:
“To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.”
It is plain that those circumstances are now to be widened, in ways which are more subjective, eg relying on perceived capacity constraints based on “the character of an area” (the letter to MPs gives the example of for instance “new blocks of high-rise flats which are entirely inappropriate in a low-rise neighbourhood” and talks of the need for “gentle densities”). It will be open season for authorities and/or local campaigners to press the case for lower numbers to be adopted and/or for the required proportion of affordable housing to be set at such a financially onerous level that in practice chokes off the prospect of development. The proposed abolition of the duty to cooperate and its replacement by an “alignment” mechanism yet to be articulated just increases the plain jeopardy here. Open question: how will the Government be able to hold to its 300,000 homes a year target if significant numbers of authorities adjust their numbers downwards? Another open question: how important is mitigating the housing crisis to the Government versus fending off internal rebellions and having constituency-friendly developer-phobic policies?
Five year housing land supply requirement:
“We will end the obligation on local authorities to maintain a rolling five-year supply of land for housing where their plans are up-to-date. Therefore for authorities with a local plan, or where authorities are benefitting from transitional arrangements, the presumption in favour of sustainable development and the ‘tilted balance’ will typically not apply in relation to issues affecting land supply.
I also want to consult on dropping the requirement for a 20% buffer to be added for both plan making and decision making – which otherwise effectively means that local authorities need to identify six years of supply rather than five. In addition, I want to recognise that some areas have historically overdelivered on housing – but they are not rewarded for this. My plan will therefore allow local planning authorities to take this into account when preparing a new local plan, lowering the number of houses they need to plan for.”
“…Where authorities are well-advanced in producing a new plan, but the constraints which I have outlined mean that the amount of land to be released needs to be reassessed, I will give those places a two year period to revise their plan against the changes we propose and to get it adopted. And while they are doing this, we will also make sure that these places are less at risk from speculative development, by reducing the amount of land which they need to show is available on a rolling basis (from the current five years to four).”
“I will increase community protections afforded by a neighbourhood plan against developer appeals – increasing those protections from two years to five years…”
Ensuring timely build out:
“I already have a significant package of measures in the Bill to ensure developers build out the developments for which they already have planning. I will consult on two further measures:
i) on allowing local planning authorities to refuse planning applications from developers who have built slowly in the past; and
ii) on making sure that local authorities who permission land are not punished under the housing delivery test when it is developers who are not building.
I will also consult on our new approach to accelerating the speed at which permissions are built out, specifically on a new financial penalty.”
Character of a developer:
“I have heard and seen examples of how the planning system is undermined by irresponsible developers and landowners who persistently ignore planning rules and fail to deliver their legal commitments to the community. I therefore propose to consult on the best way of addressing this issue, including looking at a similar approach to tackling the slow build out of permissions, where we will give local authorities the power to stop developers getting permissions.”
“I will consult to see what more we can do in national policy to support development on small sites particularly with respect to affordable housing and I will launch a review into identifying further measures that would prioritise the use of brownfield land. To help make the most of empty premises, including those above shops, I am reducing the period after which a council tax premium can be charged so that we can make the most of the space we already have. I will also provide further protection in national policy for our important agricultural land for food production, making it harder for developers to build on it.”
Tourist accommodation/short-term lets
“I intend to deliver a new tourist accommodation registration scheme as quickly as possible, working with DCMS, starting with a further short consultation on the exact design of the scheme. I will also consult on going further still and reviewing the Use Classes Order so that it enables places such as Devon, Cornwall, and the Lake District to control changes of use to short term lets if they wish.”
Since then the antagonism seems to have increased and areas of common ground seem to reduced. Planning and heritage processes are frequently just another battleground in this time of global and cultural division.
But I’m just going to pick the most recent item from this week’s news. It’s possible that politics played as much a role as planning in the decision on 1 December 2022 by the London Borough of Tower Hamlets’ Strategic Development Committee, against officers’ recommendations, to refuse planning permission for the redevelopment of Royal Mint Court, near the Tower of London, to establish a new Chinese Embassy (replacing its existing embassy on Portland Place), including “the refurbishment and restoration of the Johnson Smirke Building (Grade II listed), partial demolition, remodelling and refurbishment of Seaman’s Registry (Grade II listed), with alterations to the west elevation of the building, the retention, part demolition, alterations and extensions to Murray House and Dexter House, the erection of a standalone entrance pavilion building, alterations to the existing boundary wall and demolition of substation, associated public realm and landscaping, highway works, car and cycle parking and all ancillary and associated works.”
51 objections had been received, raising a range of planning and non-planning objections. One has a sense of non-planning issues swirling around from the officer’s report which, after summarising the various planning and heritage based objections received, sets out the “non-material considerations” raised by objectors as including:
“Concerned about the building becoming a secret police station
Concerned about the violent assault of protesters at the Manchester Chinese Consulate
Concerned about the actions of the Chinese government in relation to other countries and human rights record
All phone calls and fibre optic cables will be listened to as the site is adjacent to a BT telephone exchange”.
The minutes are not yet available but I understand that the Committee resolved that the proposals would “affect the ‘safety and security’ of residents, such as those at next-door Royal Mint Estate, cause harm to heritage assets, impact the quality of the area as a tourist destination and have an impact on local police resourcing.”
What is going to happen next? The People’s Republic of China has owned the site outright since 2018 and they are hardly going to walk away from the project. Michael Gove could conceivably call the application in before the refusal notice is issued, or China could appeal against the refusal and the appeal would presumably be recovered for his determination following recommendations from an inspector who would hold a public inquiry.
The political sensitivities are surely going to ramp up, no matter what. Perhaps this application should have been called in by the Government at an earlier stage rather than leave committee members with (1) such a difficult decision, balancing local concerns against international diplomatic responsibilities, and (2) such power. But I’m sure the government would have loved to have left this particular hot potato well alone. And they thought that juggling an appearance of dealing with the housing crisis with an appearance of leaving communities in control of local housing numbers was difficult….
Commentary about the Government’s adjusted direction for planning reform has been running on mist and speculation since Michael Gove’s return as Levelling Up Secretary of State on 25 October 2022, pending the Chancellor’s Autumn Statement on 17 November 2022.
But now it’s all systems go. As well as the Autumn Statement we now have:
The Secretary of State is due to appear before the LUHC Select Committee on 21 November and the Bill will have its report and third reading stages on 23 and 28 November before heading to the Lords.
The Autumn Statement itself contained little in relation to planning reform, other than to “refocus” investment zones:
“3.16 The government will seek to accelerate delivery of projects across its infrastructure portfolio, rather than focus on the list of projects that were flagged for acceleration in the Growth Plan. The government will continue to ensure that all infrastructure is delivered quickly through reforms to the planning system, including through updating National Policy Statements for transport, energy and water resources during 2023, and through sector-specific interventions.”
“3.25 The government will refocus the Investment Zones programme. The government will use this programme to catalyse a limited number of the highest potential knowledge-intensive growth clusters, including through leveraging local research strengths. The Department for Levelling Up, Housing and Communities will work closely with mayors, devolved administrations, local authorities, businesses and other local partners to consider how best to identify and support these clusters, driving growth while maintaining high environmental standards, with the first clusters to be announced in the coming months. The existing expressions of interest will therefore not be taken forward. The government is grateful to local authorities for their work to develop proposals.”
I recommend two good commentaries on the Autumn Statement:
The amendments tabled to the Levelling-up and Regeneration Bill are potentially significant. To quote from the 18 November 2022 press statement:
“Amendments being tabled will:
Tackle slow build out by developers to make sure much needed new homes are delivered. Developers will have to report annually to councils on their progress and councils will have new powers to block planning proposals from builders who have failed to deliver on the same land.
Improve our environment and enshrine in law an obligation on water companies to clean up our rivers by upgrading wastewater treatment works. Considering all catchments covered by the amendment, our initial estimates indicate that there will be around a 75% reduction in phosphorus loads and around a 55% reduction in nitrogen loads in total from wastewater treatment works, although this will vary between individual catchments. These upgrades will enable housebuilding to be unlocked by reducing the amount of mitigation developers must provide to offset nutrient pollution. This will be accompanied by a Nutrient Mitigation Scheme that will make it easier for developers to discharge their mitigation obligations.
Give residents a new tool to propose additional development on their street, like extensions to existing homes, through ‘street votes’. Planning permission will only be granted when an independent examiner is satisfied that certain requirements, such as on design, have been met and the proposal is endorsed at a referendum by the immediate community. Pilot Community Land Auctions – testing a new way of capturing value from land when it is allocated for development in the local plan to provide vital infrastructure, including schools, roads, GP surgeries, and the affordable housing that communities need.
Enhancing powers for mayors to support them to managing their key route networks and increase transport connectivity across their area.
Help Nationally Significant Infrastructure Projects such as wind farms and new major transport links be delivered more quickly, by enabling a small number of public bodies to charge for their statutory services to help them provide a better, reliable, quality of advice to developers and support faster planning decisions.”
There are some potentially controversial proposals here, for instance local planning authorities would be able to decline to determine an application for planning permission of any prescribed description if the application has been made by someone who “has a connection with” earlier development which “has begun but has not been substantially completed” and where the “local planning authority is of the opinion that the carrying out of the earlier development has been unreasonably slow”.
Begun but not substantially completed, unreasonably slow – sounds to me like the Government’s performance in relation to planning reform….
The press statement doesn’t mention an additional tabled amendment, which would empower the Secretary of State to make such amendments and modifications to existing planning, development and compulsory purchase legislation as in the Secretary of State’s opinion facilitate or are otherwise desirable in connection with their consolidation. That’s one hell of a Henry VIII clause! A Town Legal colleague commented to me that the Delegated Powers and Regulatory Reform Committee will certainly be interested in this one if it reaches the Lords.
More from me on a number of the proposals in due course. In particular, I had really hoped I would never have to tackle community land auctions (again) or street votes.
We still await any announcements about planning policy reform, including as to changes to the NPPF and the future of the standard method for calculating local housing needs. We were left to read between the lines of what was said by Levelling Up Under Secretary of State Dehenna Davison in a Westminster Hall 30 minute debate earlier in the week on housing targets (15 November 2022):
“I know I am preaching to the converted when it comes to the need to modernise our planning system, and I think all MPs understand and get that we need a planning regime that is fit for 2022. […] I also understand that Members are frustrated—they are right to be frustrated—that this has been under discussion not just for months, but for years. We need more houses, and that obviously brings with it an obligation on us in Government to be frank and straight with people that building more houses has implications, both positive and sometimes negative. In some places, it will cause tension, and in some places, it will be a source of relief, but it is our job to be willing to have that dialogue, regardless of how difficult it may be. I am not sure that Governments of all colours have always approached these kinds of conversations in the most productive way. The inconvenient truth is that, for the best part of two decades, demand has outstripped the supply of homes.“
“…If we can get our planning regime right, we can unlock a huge amount of economic growth locally. We want to help local authorities to adopt and implement the best planning approaches for their areas. To achieve that, local authorities will need to be able to better attract and retain planners […] and we want to work further with the sector on that. He was right to highlight that as one of the major challenges facing authorities at the moment.
To incentivise plan production and to ensure that newly produced plans are not undermined, the Government intend to make it clear that authorities do not have to maintain a five-year supply of land for housing where they have an up-to-date plan. As Members would expect, we plan to consult on that. The new measures should have a minimal impact on housing supply, given that newly produced plans will contain up-to-date allocations of land for development, but that will also send a signal that the Government are backing a plan-led approach, provided that those plans are up to date.
There is no getting around the fact that we are in a difficult economic time. We face headwinds from all angles—energy, inflation and interest rate rises—and those have knock-on implications for everything that the Government do, but to my mind, they only serve to underline the need to build more homes and to give generation rent the chance to become generation buy. That is why we have to stand by our commitment to dramatically ramp up housing supply and our manifesto pledge to build a million new homes within the first term of this Parliament”
For additional political colour (blue) see also Michael Gove’s keynote speech at the Centre for Policy Studies’ Margaret Thatcher Conference on growth (16 November 2022)
Resignation of Rishi Sunak as chancellor – 5 July 2022
Resignation of Boris Johnson as prime minister – 7 July 2022
Replacement of Boris Johnson by Liz Truss as prime minister – 6 September 2022
Death of Her Majesty – 8 September 2022
Mini-budget and publication of growth plan – 23 September 2022
Resignation of Liz Truss as prime minister – 20 October 2022
Replacement of Liz Truss by Rishi Sunak, Boris Johnson or AN Other as prime minister – October 2022
A lot has happened. Or perhaps, in our planning world, nothing has happened.
We briefly had a prime minister who talked of abolishing “top-down, Whitehall-inspired Stalinist housing targets” and indeed the Levelling Up Secretary of State Simon Clarke (who incidentally came out publicly today as a backer of Boris Johnson) spoke about those targets as if they had already been abolished. But of course, as we wait for the mythical NPPF changes prospectus (delayed to November even before the Truss resignation which could lead to further delay), formal policy remains as is. The only effect of the loose talk was to give cover to local authorities anxious for an excuse to pause their local plan making. Thanks Liz – it wasn’t just the markets that you spooked.
No doubt the change is on its way regardless but, honestly, how idiotic it would be to give up on having a methodology that identifies each local planning authority’s local housing needs, for which they should usually plan. The likely consequences of removing the targets are clear:
longer plan-making processes, particularly the examination stage
fewer homes delivered
more planning by appeal
plan-making increasingly largely driven by promises of funding to be provided and threats of funding to be removed. We can try to forget about that “pork markets” Truss quote but I suggest you retain at hand a much older phrase: “pork barrel politics”.
And what is wrong with top down targets anyway? Our health and education systems for instance are full of the things.
Away from housing, the announcements in the growth plan in relation to, for instance, fracking (pro – despite the planning minister Lee Rowley being strongly against) and solar energy (anti) have not get found their way into any formal policy changes.
I have scrolled through the amended Bill and aside from the detailed changes to schedule 11 (which relates to the infrastructure levy) mentioned by Nicola, and other minor tweaks, I would only draw attention to the following new provisions:
clause 111 – power to shorten the deadline for examination of DCO applications
clause 112 – additional powers in relation to non-material changes to DCOs
clause 152 – prospects of planning permission for alternative development [in the context of CPO compensation]
Next up will be Report stage and a debate on the Third Reading of the Bill and we shall see if any further amendments are tabled by the Secretary of State, whoever he or she may be at that stage.
“If passed, REULRR will effectively sweep away any and all EU laws that the Government hasn’t actively decided to keep.
It does this by:
Repealing EU derived laws by the end of 2023. The government will be able to extend that deadline to 23 June 2026 (the tenth anniversary of the Brexit referendum) but can’t further extend it.
Repealing the principle of supremacy of EU law by the end of 2023. Currently, any EU decision reached before 1 January 2021 is binding on UK courts unless the government departs from it. However, this bill will subjugate all EU law in favour of UK law by default.
Repealing directly effective EU law rights and obligations in UK law by the end of 2023; and
Establishing a new priority rule requiring retained direct EU legislation to be interpreted and applied consistently with domestic legislation.”
She discussed this further at our clubhouse Planning Law Unplanned session last week on the Growth Plan, which Sam Stafford has now trimmed neatly into a 50 Shades of Planning podcast:
You will remember that the European Union Withdrawal Act 2018 had the effect of retaining, post Brexit, EU-derived domestic legislation such as the regulations in relation to environmental impact assessment, strategic environmental impact and conservation of habitats, leaving it to Parliament in due course to determine the extent to which the legislation should subsequently be repealed or amended.
”The REUL [retained EU-derived law] framework established by EUWA, however, was not intended to be maintained indefinitely on the UK statute book and now the Government is in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens.”
The Bill now places a firm deadline on that process:
“The Retained EU Law (Revocation and Reform) Bill facilitates the amendment, repeal and replacement of REUL by the end of 2023, and assimilates REUL remaining in force after that date by removing the special EU law features attached to it.”
The end of 2023 deadline can only be extended, to 23 June 2026 “should a lack of parliamentary time, or external factors, hinder progress towards reform of retained EU law prior to the 2023 sunset date.”
Is this of concern?
In short, yes of course. It may be said that the Government is committed to a principle of non-regression from current environmental standards, but given the current political pinball and the lack of relevant ministers with any real experience of the sheer complexity and nuances of what they are dealing with, frankly anything is possible. Campaign groups are certainly on edge: Brexit freedoms bill’ could abolish all pesticide protections, campaigners say (Guardian, 29 September 2022).
To an extent, at a high level, the principle of non-regression is built into the trade and co-operation agreement between the UK and EU which was signed on 30 December 2020 and came into force on 1 May 2021. The UK gave various, at least theoretically, binding commitments in the agreement as to non-regression from environmental levels of protection, which I describe in my 27 December 2020 blog post Brexit & Planning: An Update.
There are also generalised commitments within the Environment Act 2021 (which of course Parliament is always of course at liberty to amend or repeal as it chooses). The Government consulted in May 2022 in relation to its draft environmental principles statement. The statement has not yet been finalised and there is not yet any duty upon ministers to take it into account in their policy making. This may not be until summer 2023 at the earliest! The Office for Environmental Protection (a body established pursuant to the 2021 Act) has criticised the statement for “a relatively limited degree of ambition”. The OEP has similarly criticised as unambitious the Government’s draft environmental targets, also consulted upon pursuant to the 2021 Act.
As against these inchoate commitments to environmental standards, what is going to give in the face of a Government which, according to its Growth Plan, will be “disapplying legacy EU red tape where appropriate” in the investment zones it is proposing, and which proposes a Planning and Infrastructure Bill which will be:
“reducing the burden of environmental assessments
reducing bureaucracy in the consultation process
reforming habitats and species regulations”?
Genuine improvements to the processes are certainly possible. But do we trust the Government to strike an appropriate balance, hurtling towards a self-imposed December 2023 deadline and (at the latest) 2024 general election? In the coming year, most of our environmental legislation, and planning legislation to the extent that it is intertwined, will need to be reviewed, line by line, and, given that most of it is in the form of secondary legislation (and the sheer lack of time – after all the REULRR Bill covers all EU derived legislation!), there will be relatively limited Parliamentary scrutiny of that process. Even with the best of intentions, how is this timescale even going to be possible if we are to avoid a complete bodge-up? We have been treading (often polluted) water for so long and we still have no sense whatsoever of what the long trumpeted “outcomes focused” approach will look like in practice – eg see my 2 April 2022 blog post Is the Nature Recovery Green Paper The Answer? (& If So What Was The Question?)
On a slightly different, although possibly related, note….
Join via this link. If you use the link to RSVP in advance (you don’t have to) you’ll get a reminder when we start – and we can get a feel for likely numbers.
What is needed to calm the nerves all round – on planning, on housing, on environmental protection – is detail. When are we going to get it? HM Treasury announced on 26 September 2022:
“Cabinet Ministers will announce further supply side growth measures in October and early November, including changes to the planning system, business regulations, childcare, immigration, agricultural productivity, and digital infrastructure.”
Always just another month or so to wait, every time.
HM Treasury published its Growth Plan 2022 on 23 September 2022. There is so much to take in, this initial blog post simply sets out all of the key passages. A panel including Samuel Stafford, Shelly Rouse, Nicola Gooch, Iain Thomson and myself will be discussing all of this in detail on clubhouse at 6pm on Tuesday 27 September 2022 and we would love to hear your views too. Join the session here (and nowadays if you RSVP within the app you can diarise it, get notified when the session starts etc).
All I would say at this point is that:
I’m not sure whether it’s right to assume that this means the end of the road for the Levelling-up and Regeneration Bill in its entirety? Along the way there is reference to a proposed Planning and Infrastructure Bill but there is no detail yet as to its contents and whether of the LURB will be retained or recycled.
There are some eye catching proposals here and the direction of travel is clear, although in most instances of course what we need is a further layer of detail.
From the executive summary
“The Growth Plan 2022 makes growth the government’s central economic mission, setting a target of reaching a 2.5% trend rate.”
“To drive higher growth, the government will help expand the supply side of the economy. The Growth Plan sets out action to unlock private investment across the whole of the UK, cut red tape to make it quicker to deliver the UK’s critical infrastructure, make work pay, and support people to get onto the property ladder. New Investment Zones will provide time-limited tax reliefs, and planning liberalisation to support employment, investment, and home ownership.”
Chapter 2, “tackling energy prices”
“To increase energy resilience, the North Sea Transition Authority will shortly launch a new oil and gas licensing round. This is expected to deliver over 100 new licenses. The government has also announced an end to the pause on extracting reserves of shale. The government is driving the development of home-grown nuclear – including Small Modular Reactors – hydrogen, Carbon Capture, Utilisation and Storage and renewable technologies. The government will unlock the potential of onshore wind by bringing consenting in line with other infrastructure. The UK is a world-leader in offshore wind, with 8GW of offshore wind currently under construction. By 2023 the government is set to increase renewables capacity by 15%, supporting the UK’s commitment to reach net zero emissions by 2050.”
Chapter 3, “growth”
“…the government must cut taxes, streamline the public sector, and liberate the private sector, by making Britain the place for:
• investment: creating the right conditions and removing barriers to the flow of private capital – whether taxes or regulation
• skilled employment: helping the unemployed into work and those in jobs secure better paid work
• infrastructure: accelerating the construction of vital infrastructure projects by liberalising the planning system and streamlining consultation and approval requirements
• home ownership: getting the housing market moving
• enterprise: cutting red tape and freeing business to grow and invest.”
“The government will work with the devolved administrations and local partners to introduce Investment Zones across the UK. Investment Zones aim to drive growth and unlock housing. Areas with Investment Zones will benefit from tax incentives, planning liberalisation, and wider support for the local economy. The specific interventions in Investment Zones will include:
• Lower taxes – businesses in designated sites will benefit from time-limited tax incentives.
• Accelerated development – there will be designated development sites to deliver growth and housing. Where planning applications are already in flight, they will be streamlined and we will work with sites to understand what specific measures are needed to unlock growth, including disapplying legacy EU red tape where appropriate. Development sites may be co-located with, or separate to, tax sites, depending on what makes most sense for the local economy.
• Wider support for local growth – for example, through greater control over local growth funding for areas with appropriate governance. Subject to demonstrating readiness, Mayoral Combined Authorities hosting Investment Zones will receive a single local growth settlement in the next Spending Review period.
Specified sites in England will benefit from a range of time-limited tax incentives over 10 years. The tax incentives under consideration are:
• Business rates – 100% relief from business rates on newly occupied business premises, and certain existing businesses where they expand in English Investment Zone tax sites. Councils hosting Investment Zones will receive 100% of the business rates growth in designated sites above an agreed baseline for 25 years.
• Enhanced Capital Allowance – 100% first year allowance for companies’ qualifying expenditure on plant and machinery assets for use in tax sites.
• Enhanced Structures and Buildings Allowance – accelerated relief to allow businesses to reduce their taxable profits by 20% of the cost of qualifying non-residential investment per year, relieving 100% of their cost of investment over five years.
• Employer National Insurance contributions relief – zero-rate Employer NICs on salaries of any new employee working in the tax site for at least 60% of their time, on earnings up to £50,270 per year, with Employer NICs being charged at the usual rate above this level.
• Stamp Duty Land Tax – a full SDLT relief for land and buildings bought for use or development for commercial purposes, and for purchases of land or buildings for new residential development.
The Department for Levelling Up, Housing and Communities will shortly set out more detail on the planning offer. This will include detail on the level of deregulation and the streamlined mechanism for securing planning permission.
The government will deliver Investment Zones in partnership with Upper Tier Local Authorities and Mayoral Combined Authorities in England, who will work in partnership with their relevant districts and/ or constituent councils. All Investment Zone agreements will contain tax and development sites. Areas will be responsible for putting forward sites and demonstrating their potential impact on economic growth, including by bringing more land forward and accelerating development.
Investment Zones will only be chosen following a rapid Expression of Interest process open to everyone, and after local consent is confirmed. However, examples of illustrative sites that may have the potential to accelerate growth and deliver housing in the way the Investment Zone programme envisages can be found in Annex A.
The government is in early discussions with 38 Mayoral Combined Authorities and Upper Tier Local Authorities who have already expressed an initial interest in having a clearly designated, specific site within their locality. A full list of these 38 authorities is available in Annex A.
The government will deliver Investment Zones in Scotland, Wales and Northern Ireland and intends to work in partnership with the devolved administrations and local partners to achieve this. The government will legislate for powers to create tax and development sites in Investment Zones where powers are reserved.
The government remains committed to the progress of the Freeports programme. The government will work with local partners involved in current and prospective Freeports to consider whether and how the Investment Zones offer can help to support their objectives, as part of the wider process for identifying Investment Zones. This will ensure that both programmes complement one another.”
Annex A lists 24 examples of “illustrative sites that may have the potential to accelerate growth and deliver housing in the way the Investment Zone programme envisages” and 38 authorities with which the government is in early discussions with a view to establishing an investment zone in their area.
“The government envisages that Investment Zones will be one or more specific sites within an MCA or UTLA where a variety of tax, regulatory innovations and flexibilities, and planning simplifications will apply within those site’s boundaries.
As MCAs and UTLAs consider coming forward to express interest in pursuing Investment Zones with the government, they should consider which sites will best drive a substantial contribution to the UK’s economic growth and a significant acceleration of delivery of additional housing. There is a strong expectation that Investment Zones will bring forward additional development, and that they bring forward a mix of both commercial and residential development. Both of these will be considered in the EOI assessment process.
Sites may be aligned with existing local growth strategies and transport plans. Sites that already have a masterplan, development order or outline permission could be considered by MCAs and UTLAs as a potential Investment Zone, as could sites where planning consents are not yet in place. Development sites where planning simplifications apply may be co-located with, or separate to, tax sites, depending on what makes most sense for the local economy.”
“To make buying a home a reality, the government must accelerate housing delivery. Planning permission was granted for more than 310,000 homes last year, up 10% on the year before,10 but further reform is needed. Later this autumn, the government will set out its vision to unlock homeownership for a new generation by building more homes in the places people want to live and work and by getting our housing market moving. This will boost growth across the UK helping more people afford to live near good jobs. The government’s full proposal will be set out in due course.
The government will promote the disposal of surplus public sector land by allowing departments greater flexibility to reinvest the proceeds of land sales over multiple years. This will encourage the sale of more public land for housing and allow departments and the NHS to reinvest in public services. Devolved administrations have bespoke flexibilities to move funding between financial years and the government will discuss the implications of this change with them in due course.”
“The UK’s planning system is too slow and too fragmented. For example, an offshore wind farm can take four years to get through the planning process and no new substantive onshore wind farm has received planning consent since 2015.”
“The Growth Plan announces that new legislation [the Planning and Infrastructure Bill] will be brought forward in the coming months to address […] barriers by reducing unnecessary burdens to speed up the delivery of much-needed infrastructure. This includes:
• reducing the burden of environmental assessments
• reducing bureaucracy in the consultation process
• reforming habitats and species regulations
• increasing flexibility to make changes to a DCO once it has been submitted.”
“The Growth Plan also announces further sector specific changes to accelerate delivery of infrastructure, including:
• prioritising the delivery of National Policy Statements for energy, water resources and national networks, and of a cross-government action plan for reform of the Nationally Significant Infrastructure planning system
• bringing onshore wind planning policy in line with other infrastructure to allow it to be deployed more easily in England
• reforms to accelerate roads delivery, including by consenting more through the Highways Act 1980 and by considering options for changing the Judicial Review system to avoid claims which cause unnecessary delays to delivery
• amendments to the Product Security and Telecommunications Infrastructure Bill to give telecoms operators easier access to telegraph poles on private land, supporting the delivery of gigabit capable broadband.”
“The Growth Plan also sets out the infrastructure projects that the government will prioritise for acceleration, across transport, energy and digital infrastructure. This non-exhaustive list is set out in Annex B and reflects projects which have particularly high potential to move to construction at an accelerated pace. The government will also continue to focus on delivering its wider infrastructure priorities, from major projects such as HS2, to its wider nuclear strategy.”
Much has happened since my last blog post two weeks ago. Eclipsing all else has been the death on 8 September 2022 of Her Majesty Queen Elizabeth II – surely one of our greatest Britons. It is right that we mourn as a country as if a family. If anyone deserves that, she does.
What is appropriate in this period of mourning? Hashi Mohamed and I decided to postpone our clubhouse chat about his new book A home of one’s own that was due to take place this Monday. It will now happen at 6 pm on Wednesday 5 October 2022 and we hope that you can join us. It felt wrong to be promoting the event actively this weekend and having what I hope will turn out to be a lively, no holds barred, discussion on what is wrong with our approach to housing.
However, it feels equally wrong to pretend that everything else of concern in the world is on hold. There was literally no other news on the BBC last night.
And yet, these are momentous times. Liz Truss became prime minister on 6 September 2022 and on the morning of 8 September 2022, opening a debate on energy policy, she announced an energy price guarantee for individuals and businesses as wider energy policy changes (see Government announces Energy Price Guarantee for families and businesses while urgently taking action to reform broken energy market (press statement, 8 September 2022)). The energy price guarantee (a matter that is literally of life or death to many people, and a matter of survival or not for many businesses) needs to be fleshed out and of course one of the controversial aspects of the measure is the decision not to impose any further windfall tax on energy suppliers. Another controversial aspect is the unsurprising announcement by Truss that the Government would resume its support for fracking:
“We will end the moratorium on extracting our huge reserves of shale, which could get gas flowing in as soon as six months, where there is local support.”
Fracking proposals have effectively been on hold since November 2019, following this announcement by Andrea Leadsom and Kwasi Kwarteng: Government ends support for fracking (press statement, 2 November 2019)
“On the basis of the current scientific evidence, government is confirming today that it will take a presumption against issuing any further Hydraulic Fracturing Consents. This position will be maintained unless compelling new evidence is provided. While future applications for Hydraulic Fracturing Consent will be considered on their own merits by the Secretary of State, in accordance with the law, the shale gas industry should take the government’s position into account when considering new developments.
The OGA has advised the government that until further studies can provide clarity, they will not be able to say with confidence that further hydraulic fracturing would meet the government’s policy aims of ensuring it is safe, sustainable and of minimal disturbance to those living and working nearby.
The Infrastructure Act 2015 included the requirement for operators to obtain Hydraulic Fracturing Consent which ensures that all the necessary environmental and health and safety permits have been obtained before activities can commence. The Consent process also includes the requirement for an independent financial analysis of the operator to be carried out to ensure they can meet their licence obligations, including decommissioning.”
“We placed a moratorium on fracking in England with immediate effect. Having listened to local communities, we have ruled out changes to the planning system. We will not support fracking unless the science shows categorically that it can be done safely.”
By way of contrast, as quoted by Sir Keir Starmer in his response to Truss’ speech, this was Kwarteng from March 2022 when he was Business Secretary:
“Even if we lifted the fracking moratorium tomorrow, it would take up to a decade to extract sufficient volumes – and it would come at a high cost for communities and our precious countryside.
Second, no amount of shale gas from hundreds of wells dotted across rural England would be enough to lower the European price any time soon.
“And with the best will in the world, private companies are not going to sell the gas they produce to UK consumers below the market price.”
Surely there are at least five questions at large:
Is there now adequate scientific evidence that fracking is safe?
We are waiting for the publication of a review by the British Geological Survey of the science of fracking, commissioned in April by BEIS, which has apparently had it since early July. Its publication is apparently imminent.
Have we any headroom within the “net zero by 2050” target to allow us to continue relying on extracting and burning hydrocarbons and what example does this set?
A bigger question but surely this is a big step away from where we should be heading.
Is it feasible in any event to extract meaningful levels of shale gas which would have any meaningful effect either on energy security or energy prices?
Maybe circumstances have changed so radically since Kwarteng’s March 2022 comments such that current gas prices suddenly make fracking a potentially economic proposition? We don’t have the data but what a u-turn that would be from that March statement. In any event is there the evidence that as a country we do even have large amounts of shale gas to extract? The quantities would surely need to be enormous to have any economic impact.
Given the technical and planning processes involved, and widespread public opposition, how will projects secure local support such that gas can be flowing within six months?
It’s interesting to compare with the on-shore wind policy position – still restrictive, the killer restriction being, by way of footnote 54 of the NPPF, that “a proposed wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified as suitable for wind energy development in the development plan; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing.”
Who knows, perhaps we will see a return to the idea of a “shale wealth fund” for the benefit of local communities that I have just remembered that I was writing about in my 8 August 2016 blog post Back Yard Back Handers?
So is this all largely about anti-woke political positioning – and, as with the decision not to impose any further windfall tax on them, about signalling to energy companies that the UK is still open for (fossil fuel) business?
In the words of our fictional Prime Minister Francis Urquhart: “You might very well think that; I couldn’t possibly comment.”
“When Britain built something big” is the sub-title to Dave Hill’s book Olympic Park, which tells the story of how an Olympic park was created in London’s Lower Lea Valley in time for London 2012. It is a detailed factual account, not just of the politics, planning, infrastructure engineering and deal-making that led up to that event, but of its implications in terms of urban regeneration and legacy.
I’m interviewing Dave about the book and its themes at 6 pm on Tuesday 30 August 2022 on the audio social-media app Clubhouse, and you’re welcome to listen in here and indeed we’d love to here your own accounts.
A number of things are striking to me, looking back.
The first is that huge things can be achieved if individuals and institutions collectively grasp a vision and secure the necessary buy-in. At a time when this country had perhaps lost its self-belief in being able to deliver a project successfully and on time, here we were setting ourselves up to fail – but we didn’t. By luck there was a new system of London regional government in place to facilitate London’s bid for the games (Ken Livingstone as mayor, not a sports fan at all but persuaded as to the regeneration potential of a London Games) with the full support (not easily secured by the indefatigable Tessa Jowell) of the Blair government, and with the individual host boroughs, with capable leaders, willing to come together as a Joint Planning Applications Team to determine massively complex planning applications within tight timescales.
The second is that there are inevitable trade-offs if a project such as the transformation of this huge area of east London was to be achieved by what was an immovable deadline. When London secured the Games, the London Olympic Games and Paralympic Games Act 2006 gave significant powers to unelected bodies, which has continued with the creation of the London Legacy Development Corporation in 2012. Many people’s homes and businesses were the subject of a compulsory purchase order, which was confirmed after a 41 day inquiry and which survived at least three legal challenges in the High Court. Should we have done it? Or should we have let community politics take their course?
The third is that whilst it is important to have the necessary statutory processes and a strategy, so much comes down to problem-solving, creativity and negotiation. Whilst the right calls may have been made in the negotiations necessary with the Stratford City development partners (at times a fragile partnership due to the takeover of Chelsfield during the process), was money wasted in deciding to proceed with a stadium design that did not easily allow for West Ham’s subsequent use – and just how good was West Ham’s eventual deal?
The fourth is that engineering constraints and their lead-in periods can cause headaches – for example the huge commercial, logistical and regulatory challenge of undergrounding electricity lines and removing pylons – achievements which we then utterly take for granted.
The fifth is the need for cross-party consensus – long-term projects can’t be the punchbag of short-term party politics. So there was the unholy alliance between Livingstone, expelled from the Labour party, and the New Labour government, both then replaced before the Games themselves by Johnson and the Conservative/Lib Dem coalition and now the approach to various legacy aspects being the domain of Sadiq Khan.
The sixth is that surely we need to learn from what went well and what perhaps didn’t, and to apply it to the immediate challenges around us: climate change, including renewables and making existing buildings more energy-efficient; and indeed the challenge of delivering a new generation of affordable homes. What more broadly should we learn about how our planning system needs to adapt?
There is so much more to talk about. Do join us, or read the book, or both.
Then do join us again a couple of weeks later for another book club special! At 6 pm on Monday 12 September 2022, we have barrister and broadcaster Hashi Mohamed, to talk about his book, A home of one’s own – his very personal take on the housing crisis, its causes and some possible solutions. Invitation here.
You can RSVP for the events on the clubhouse app via the links so as to be reminded when the event is starting, or just log in when the time comes
My ear-worm for this blog post is a 40 year old song by Spandau Ballet. Possibly not originally about home improvements in the green belt, with one word changed its chorus goes like this:
Reasons, reasons were here from the start,
It’s my extension,
It’s my extension.
Reasons, reasons are part of the art,
It’s my extension,
It’s my extension.
Words are important. If you engage a competent lawyer, their toolbox will be full of precise words, as short as possible for the job, together with the necessary interpretation widgets, i.e. case law.
If you engage a competent builder and say to them that you would like an extension to your house, would you both be assuming that, inherent in the word the word “extension”, it would need to be attached to the house rather than, say the replacement of an outbuilding by a larger structure down the garden 20 metres away from your house?
It’s a really important question if your house is in the green belt, because you don’t have to demonstrate “very special circumstances” where specific exceptions in paragraph 149 of the NPPF apply. Two of the exceptions are as follows:
“c) 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;
d) the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;”
If an out-building falls within (d), the size of its replacement is obviously constrained by the fact that must be “not materially larger than the one it replaces”. But what if the replacement were actually to be interpreted as an extension to the house itself, such that you just have to show that the replacement “does not result in disproportionate additions over and above the size of the original” house? Gold!
Over to Eyre J in the Warwick case:
“The Second Defendant’s property is in Vicarage Road in Stoneleigh. The village of Stoneleigh is “washed over” by the West Midlands Green Belt. The Second Defendant’s property consists of a Grade II timber-framed cottage (“the Cottage”), a garden, a garage, and a currently disused timber structure.
That structure has a footprint of 10.2m2 and appears to have been originally used as the garage for the property but that use has been superseded by a more recently-built garage. This timber structure is in the garden of the Cottage but is approximately 20m from the Cottage itself. The Second Defendants sought permission to demolish the timber structure and to replace it with a garden room/home office with a footprint of 16m2.”
Warwick District Council had refused the application, taking the position that paragraph 149 (c) did not apply. On appeal, the inspector disagreed:
“9. Framework paragraph 149 (c) permits 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 existing building was the original garage to the house and as such could reasonably be considered to have been a normal domestic adjunct to it. Likewise, the proposed outbuilding would be used for purposes clearly related to the occupation of the dwelling. It would be in the same location on the site, relatively close to the dwelling and within a group of buildings closely associated with it. Therefore, I am satisfied that the proposed out building can be considered as an extension to the dwelling.
10. The evidence before me is that there have been various extensions to the original building and a detached garage. Planning permission has recently been granted to replace the rear single storey extension with something similar in scale and the garage is relatively small in relation to the dwelling. The proposed outbuilding would be located behind this building and would be much smaller in scale compared with the host dwelling. Given the modest scale of these existing additions and the limited additional footprint from the proposed outbuilding, I find that the proposal, in combination with previous additions, would not result in disproportionate additions to the host dwelling.”
The inspector allowed the appeal and the Council challenged the decision. Eyre J concluded as follows, after analysis as to the normal meaning of the word “extension” and then the policy context within which it is used in paragraph 149 (c) (the Council = Claimant, the Secretary of State = First Defendant):
“Looking at the matter in the round no one of the points advanced is conclusive by itself but I am persuaded by the combined weight of the points advanced by the First Defendant. It is right to note that if the language of [149(c)] were to be considered in isolation from its context then the Claimant’s interpretation of the words used would be the more natural reading of those words. It is not, however, the only legitimate reading of the words and the First Defendant’s interpretation that an extension of a building can include a physically detached structure is also a tenable reading of the words used. The First Defendant’s interpretation is, in my judgement, the reading which accords considerably more readily with the content and purpose of the relevant part of the NPPF. While the Claimant’s interpretation has the potential to lead to artificial distinctions which would do nothing to further the purposes of the Green Belt whereas that advanced by the First Defendant would remove the risk of that artificiality without jeopardising those purposes. Accordingly, I am satisfied that [149(c)] is not to be interpreted as being confined to physically attached structures but that an extension for the purposes of that provision can include structures which are physically detached from the building of which they are an extension.
If, as I have found, an extension can be detached from the building of which it is an extension the Inspector did not err in law in granting planning permission and this claim fails.”
I don’t know if Warwick will be applying for permission to appeal. As a humble jobbing planning lawyer I’m not sure I would have predicted the conclusion to which Eyre J came. Surely an “extension” to something is by definition connected to that thing? Isn’t that so unambiguous that you do not then look at the policy ramifications? But my views are irrelevant and I suspect we shall be seeing an increase in proposals by the owners of large homes in the green belt for the construction of out-buildings, relying full square on this case. And the larger the house, the easier it will be to show that the “extension” is not a “disproportionate addition” – it’s the planning law equivalent of regressive taxation!
Of course any politician’s toolbox is also full of words, there to serve a different purpose: not to define, but to win elections – and the two words “green belt” are right there near the top.
Does Rishi Sunak for instance really believe, or understand the real-world implications of, what he has been saying in relation to the green belt, in terms of tightening current restrictions? See e.g. Rishi Sunak: I’ll save Britain’s ‘precious’ green belt (Telegraph, 27 July 2022).
Or last week, according to twitter:
“We will stop urban mayors trying to push development out to the Greenbelt in largely Conservative areas. I will stop that from happening.”
Odd isn’t it? Owners of large homes in the green belt will be cock-a-hoop over the Warwick ruling (the larger the home, the more advantageous the ruling) and yet, without drawing breath, no doubt fully behind politicians who say no development in the green belt. Or at least, whether or not Sunak wins, (back to my ear-worm – take it away Tony Hadley…) it’s my instinction.
NB On the subject of words, spoken and written, we have two clubhouse Planning Law Unplanned sessions of interest coming up fast:
At 6 pm on Tuesday 30 August 2022, we have Dave Hill, who of course runs On London and is one of the leading commentators on London planning and development issues, to talk about his recent book, Olympic Park – a fascinating story of the politics, deal-making and sheer collective endeavour that delivered London 2012. Invitation here.
At 6 pm on Monday 12 September 2022, we have barrister and broadcaster Hashi Mohamed, to talk about his forthcoming book, A home of one’s own – his very personal take on the housing crisis, its causes and some possible solutions. Invitation here.