Category: Politics

Ruler

Or REULRR. Or the Retained EU Law (Revocation and Reform) Bill, introduced into Parliament on 22 September 2022. A Bill which I was only vaguely aware of until Nicola Gooch’s excellent blog post What Truss did on my holidays: It’s much more than ‘just’ the mini budget….  (26 September 2022). 

As Nicola explains:

 “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:

  1. 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.
  2. 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. 
  3. Repealing directly effective EU law rights and obligations in UK law by the end of 2023; and
  4. 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:

🍎 https://t.co/BaNDFpIlfb

🎧 https://open.spotify.com/episode/0vKryknMBdUBxOdidhTX26

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leaving it to Parliament in due course to determine the extent to which the legislation should subsequently be repealed or amended. 

As explained in the explanatory notes to the REULRR Bill:

”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….

At 6 pm on Wednesday 5 October 2022 we will be having a discussion on Clubhouse with barrister Hashi Mohamed, around the themes of his FT article The housing crisis sits at the centre of Britain’s ills (1 October 2022, behind paywall) and his recent book A home of one’s own, a trenchant and personal look at the politics of planning and housing.

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.

Simon Ricketts, 1 October 2022

Personal views, et cetera

Image courtesy of Estay Lim via Unsplash

What Does The Growth Plan Mean For Development And Infrastructure?

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.”

Investment zones

“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.

There is also this investment zones factsheet.

[Added 24 September 2022] Additional information on investment zones in England has also been published by the Levelling Up Department and HM Treasury: https://www.gov.uk/government/publications/investment-zones-in-england/investment-zones-in-england (24 September 2022). See e.g.

“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.”

Housing

“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.”

Planning

“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.”

Infrastructure

“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.”

The agenda is set…

Simon Ricketts, 23 September 2022

Personal views, et cetera

Fracking

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.”

This was followed through into the Conservative manifesto for the December 2019 general election: 

“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.”

With a new Prime Minister, and a new Business Secretary, a new approach. Remember this for instance? Rees-Mogg downplays fracking risk and eyes ‘every last drop’ of North Sea oil (Evening Standard, 4 April 2022)

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.”

Not at all easy – and fracking is way less popular than on-shore wind. Indeed, there was a fascinating Survation survey last week Polling in every constituency in Britain shows strong support for building wind farms to drive down consumer bills. 34% supported gas from onshore fracking while 45% opposed.

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.”

Simon Ricketts, 10 September 2022

Personal views, et cetera

NB For up to the minute policy commentary on fracking issues I do recommend the Drill or Drop website. 

When Britain Built Something Big

“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 

Simon Ricketts, 27 August 2022

Personal views, et cetera

Extension, Green Belt, Words

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?

Your lawyer now has the very widget to resolve that question, in the form of Warwick District Council v Secretary of State (Eyre J, 12 August 2022).

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.

Simon Ricketts, 20 August 2022

Personal views, et cetera

EZ Does It: Charter Cities, Freeports, Development Corporations

My name is EZymandias, King of Kings;

Look on my Works, ye Mighty, and despair!

Nothing beside remains. Round the decay

Of that colossal Wreck, boundless and bare

The lone and level sands stretch far away

Nothing is new. Least of all the idea that economic activity may be generated by way of a state identifying a zone, whether in its borders or elsewhere, within which more advantageous rules apply for those doing business, for instance in terms of customs, taxes and constraints over development, and within which zone the state gives an organisation (which may be in part or wholly privately owned) a degree of regulatory autonomy.

The idea is topical. I referred in my 16 July 2022 blog post Neutrality to the “charter cities” idea that has been gaining traction in right wing circles and to Liz Truss’ espousal of “low planning zones: new investment zones around key parts of the United Kingdom with much clearer planning rules so people can get on with building straight away to generate those jobs and opportunities.”

To start to get to the root and very starting point of the charter cities concept, last night I watched Nobel Prize laureate and former Chief Economist of the World Bank Paul Romer’s 2009 Ted Talk, Why the world needs charter cities and I read his related paper, Technologies, Rules, and Progress: The Case for Charter Cities (Paul Romer, March 2010). Romer was one of Rishi Sunak’s professors at Stanford University. Sunak has described him as “brilliant and inspiring” .

If you look at what Romer is saying – or dip into the Charter Cities Institute’s website https://chartercitiesinstitute.org/ (the cheer-leading group for the concept) – it could be said to be rather simplistic (not to say colonial), pointing for instance to the success first of Hong Kong and then of the special economic zones established by China along its coastline, and suggesting that an equivalent model could allow first world countries to establish charter cities within developing countries, to mutual benefit and to the benefit of the population of the host country, who would have the “choice” as to whether to move to and subject themselves to the more economically-efficient (my summary) rules of the charter city. 

Of course the usual questions arise: to what extent does such an arrangement impoverish or strip resources from those outside the charter city? How are human rights protected? How is the host country to ensure a fair deal is struck, given the likely inequality of bargaining positions? What of the right to self-determination for those in the area? In the fight against climate change, will this help, or hinder?

Madagascar and Honduras have indeed both explored but not implemented the idea. You may also recall a couple of years ago the media coverage around apparent discussions “between property developer Ivan Ko and the government of Ireland, with the former proposing the construction of a safe haven in the form of a semi-autonomous city in Ireland—one which would allow for the emigration of thousands of Hong Kong residents” (Charter cities: can they solve the world’s problems? (Thomson Reuters, 31 July 2020)).

The charter city label could equally be applied to the proposal/dream/nightmare that was the subject of this 27 July 2022 Guardian piece, Saudi Arabia plans 100-mile-long mirrored skyscraper megacity or indeed to the now abandoned Toronto “smart city” project promoted by Sidewalk Laboratories (part of the Alphabet group which also owns Google) – see Sidewalk Labs folds back into Google. Have “smart cities” had their day? (Verdict, 17 December 2021). Some fundamental issues swirling around those two projects alone for sure, about democracy, sustainability, data privacy and sheer Ozymandian folly. 

Of course it’s not much of a step down from charter cities to freeports – it is all down to the detail of the regulatory arrangements and legal protections, as well as a question of scale. 

Again topically, on 29 July 2022 DLUHC updated its guidance on Freeports although with no new substantive changes of note that I could see anyway. 

From the guidance:

“Freeports are special areas within the UK’s borders where different economic regulations apply. Freeports in England are centred around one or more air, rail, or seaport, but can extend up to 45km beyond the port(s).”

“Our Freeports model will include a comprehensive package of measures, comprising tax reliefs, customs, business rates retention, planning, regeneration, innovation and trade and investment support.

Eligible businesses in Freeports will enjoy a range of tax incentives, such as enhanced capital allowances, relief from stamp duty and employer national insurance contributions for additional employees. These tax reliefs are designed to encourage the maximum number of businesses to open, expand and invest in our Freeports which in turn will boost employment.

Freeports will benefit from a range of customs measures, allowing imports to enter the Freeport custom sites with simplified customs documentation and delay paying tariffs. This means that businesses operating inside designated areas in and around the port may manufacture goods using these imports, before exporting them again without paying the tariff.

Freeports will provide a supportive planning environment for the development of tax and customs sites through locally led measures such as Local Development Orders or permitted development right development.”

The Government’s “Freeport model has 3 objectives:

a) establish Freeports as national hubs for global trade and investment by focusing on delivering a diverse number of investment projects within the Freeport regions, make trade processes more efficient, maximise developments in production and acquire specialist expertise to secure Freeports position within supply chains.

b) create hotbeds for innovation by focusing on private and public sector investment in research and development; by being dynamic environments that bring innovators together to collaborate in new ways; and by offering spaces to develop and trial new ideas and technologies. This will create new markets for UK products and services and drive productivity improvements, bringing jobs and investment to Freeport regions.

c) promote regeneration through the creation of high-skilled jobs in ports linked to the areas around them, ensuring sustainable economic growth and regeneration for communities that need it most. Local economies will grow as tax measures drive private investment, carefully considered planning reforms facilitate construction and infrastructure is upgraded in Freeports”

People of course point to the fact that it was Sunak who as Chancellor in 2021 announced the establishment of the latest round of eight English freeports:

  1. East Midlands Airport
  2. Felixstowe & Harwich including the Port of Felixstowe and Harwich International Port
  3. Humber including parts of Port of Immingham
  4. Liverpool City Region including the Port of Liverpool
  5. Plymouth & South Devon including the Port of Plymouth
  6. Solent including the ports of Southampton, Portsmouth and Portsmouth International Port
  7. Thames including the ports at London Gateway and Tilbury
  8. Teesside including Teesside International Airport, the Port of Middlesbrough and the Port of Hartlepool

How the planning system will operate within them is still uncertain and no doubt will be a patchwork quilt of differing arrangements. The Government’s Freeports bidding prospectus (November 2020) said this on the subject:

“3.6. Planning

Bidders will be able to take advantage of the planning reforms set out in the Consultation Response related to permitted development rights and simpler, area-based planning – in particular Local Development Orders (LDOs).

The government recognises the advantages that wider planning reform can bring to Freeports development. Therefore, as part of a longer-term programme of reform to England’s planning system, the government is exploring the potential to go further in these areas, as well as the potential to test ambitious planning proposals in Freeports, taking advantage of the controlled spaces that they offer.

In addition to the measures set out in the Freeports Consultation, the government is actively exploring a new, simpler framework for environmental assessment, as well as intending to review the National Policy Statement for Ports in 2021.”

(Dear reader, you will have noticed that 2021 has since come and gone). 

For further reading I also recommend the House of Commons library paper, Government policy on freeports (14 February 2022).

I mentioned that this is the latest round of freeports. I’m sure we can expect the incoming prime minister to expand the initiative. But let’s not forget that freeports are nothing new and (aside from some nuanced detail around state aid) they are not really a dividend from our old friend in the corner, Brexit. Seven freeports operated in the UK at various points between 1984 and 2012.

Another great theme of the current prime ministerial tussle has been both candidates’ attempts to emulate their professed idol Margaret Thatcher. As a milk drinker I may be biased – as education minister in 1971 she took away free milk from the over sevens. I was seven. (Rishi and Liz weren’t born).

Shortly after she came to power in 1979, the Local Government, Planning and Land Act 1980 was enacted (“lug plaa” as we all called it) which paved the way for the creation of a new type of urban development corporations, including most notably the London Docklands Development Corporation, which was given wide planning and compulsory land acquisition powers, with the area also given enterprise status under the Act. Here is the rather quaint 26 April 1982 press release.

The Survey of London: Volumes 43 and 44, Poplar, Blackwall and Isle of Dogs gives this account:

“In order to provide substantial inducements for firms to move into Docklands, the Government, with effect from April 1982, designated much of the area centring around the West India and Millwall Docks as an Enterprise Zone, as provided for under the 1980 Local Government, Planning and Land Act, with the intention of encouraging and speeding up development. The boundary was carefully drawn to exclude those sites which had already been, or were in course of being, developed, such as Billingsgate Market (see plan C). (fn. 5) The chief financial concessions were: freedom from local rates for a ten-year period until 1992, no development land tax, and 100-percent capital allowance for new commercial and industrial buildings, to be set against corporation and income taxes. In December 1986 the Financial Times, in announcing the proposed relocation of its printing works to Docklands, calculated that the £20,850,000 cost of the site and building would be reduced to £15,400,000 by the tax concessions offered in the Enterprise Zone. (fn. 6)

In addition, there were simplified planning procedures: the zone was set up with an overall planning scheme, and any proposed development that conformed to that scheme was deemed to have been given planning consent, unless it was considered a particularly sensitive site and therefore specifically excluded from the general planning provision. (fn. 7) Similarly, development within the zone was normally free of ‘use class’ planning controls, so that a structure originally intended to be a factory or warehouse could be converted to office use during the course of construction, without requiring further permission.” 

The House of Commons Library, research briefing Enterprise Zones  (21 January 2020) is a useful summary of where we now are with enterprise zones. 38 Enterprise Zones were designated between 1981 and 1996. When the coalition government came to power in 2010 Chancellor George Osborne announced the creation of further EZs. As at 2020 there were, I think, 44 in England, in Scotland, 7 in Wales and 1 in Northern Ireland.

Again, no doubt additional EZs may be in prospect. 

What of any of this in the Levelling-up and Regeneration Bill – and is it going to be given a Sunakian/Trussian polish in September? The Bill does already provide for locally-led urban development corporations, away from the previous 1980 Act centralised model (how truly local is local depends of course on the carrots and sticks deployed by the centre) but are we going to see any more ambitious/radical ideas come into play? 

This has been an only-scratching-the-surface and leaving-you-to-join-the-dots sort of blog post. Even getting this far has taken me, on-screen at least, all around the world. I don’t have all the answers. Be wary of those, on all sides, who pretend that they do!

Simon Ricketts, 30 July 2022

Personal views, et cetera

Neutrality

That word neutrality. 

I’ll turn in a moment to the Court of Appeal’s 15 July 2022 ruling on nutrient neutrality in R (Wyatt) v Fareham Borough Council and Natural England. 

But first, on political neutrality. I can’t say that there is a political party at the moment I could support. Is that neutrality? It’s certainly depressing. 

This week, in an effort not to waste energy when most of us have no voice in the selection process, I haven’t been tweeting about all the rights and wrongs of the prime ministerial candidates. One of my better decisions. However, it is frustrating to see the usual 2022 Tory comfort food being served up on a plate:

“A Labour solution to housing would concrete over the whole country and leave us with socialist homes, that are owned by the state, that we can rent on a temporary basis” (Tom Tugendhat)

Net zero = “well-meaning regulations” clogging up economic growth (Kemi Badenoch)

“low planning zones: new investment zones around key parts of the United Kingdom with much clearer planning rules so people can get on with building straight away to generate those jobs and opportunities.” (Liz Truss) – possibly a reference to the libertarian “Charter Cities” idea that seems to be gaining some traction in right wing conservative circles – Sunak and Mordaunt being other potential adherents. (For more on charter cities see for instance Ann Moody’s 6 June 2022 piece in Yorkshire Bylines, Brexit benefits: From Honduras to Hull, via Hong Kong).

Is any of this food, no doubt comforting for some, good for you? Are we even able to ask such a “woke” question? 

Deregulation is of course an ever-present theme – Back To (Planning For) The Future, or what. Of course it will end badly, with botched plans and broken promises.

Meanwhile, in the real world, the inability of the Government and its agencies to arrive at any timely solutions is still the reason why Natural England’s approach to nutrient, water and recreational impact neutrality is such a blocker to house building in so many areas of the country. Water companies are failing to meet their obligations (see the Environment Agency’s no holds barred 12 July 2022 report Water and sewerage companies in England: environmental performance report 2021), farmers rail against existing restrictions on fertiliser use, off-site mitigation schemes are slow to gain traction and local planning authorities proceed (or rather don’t proceed) in a state of extreme caution. 

I last blogged on the subject in my 26 March 2022 blog post More On That Natural England Advice.  

Since then the HBF has published two Lichfields reports:

Lichfields modelled five scenarios which estimate different levels of reduction in housebuilding as a result of the nutrients issue, as follows:

1 A 10% reduction in housebuilding;

2 A 25% reduction in housebuilding;

3 A 50% reduction in housebuilding; and,

4 The non-delivery of an estimated c.53,000-60,000 new homes across the (at that point) seven catchment areas.

By way of example:

“A 10% or 50% reduction in the number houses being delivered across the seven catchment areas would equate to a reduction in between 2,540 and 12,700 new homes being built each year. This would have the potential to result in:

1 An annual reduction of between £441.8 million and £2.2 billion economic output produced by builders, their contractors and suppliers;

2 A reduced opportunity to create or support between 8,100 and 40,560, indirect, and induced jobs per annum;

3 A loss of between £2.9 million and £14.7 million in potential Council Tax revenue per annum;

4 A loss of between £17.0 million and £84.9 million in New Homes Bonus payments each year;

5 A missed opportunity to invest between £12.0 million and £59.8 million in essential infrastructure collected from Section 106 and CIL contributions per annum; and,

6 The loss of affordable housing delivery valued at between £48.8 million and £244.2 million per annum.”

This examines whether Natural England’s assumption in its guidance to date of an average occupancy of each new home by 2.4 people is too high, leading to an over-estimate as to the likely effects arising from new development:

“Multiple strands of analysis all point to the fact that the nutrient calculators that have been applied throughout the seven catchments over-estimate significantly the likely additional population that would result from the development of new housing. This will tend to over-estimate the nutrient load associated with new development and expect levels of mitigation that may not be necessary.

By way of solution, we recommend that the nutrient calculator should be amended to adopt a more sensitive assessment of population change. This should reflect the level of households/dwellings associated with a net zero population growth scenario for which no mitigation would be required. Mitigation associated with the provision of new housing to accommodate population growth should be based on the net average household size figure; this will be lower than average household size to take account of the fact that the resident population in the existing stock will be falling going forward.”

The HBF has also continued to bang the drum for a more sensible approach to reserved matters applications and applications for discharge of pre-commencement conditions – all delayed in affected areas. The HBF’s James Stevens said this recently in a LinkedIn post:

“Based on an HBF survey of members 40% of the 38,365 homes delayed in the 42 local authorities newly affected by this issue (since 16 March 2022) are caught at reserved matters and discharge of conditions stages. It is likely that a comparable number of homes are at the same stages among the 60,000 homes delayed in the 32 local authorities initially affected by this issue (for many since 22 July 2019).”

His post included a link to Charlie Banner QC’s updated opinion dated 6 June 2022, which articulates a legal case for regulation 63 of the Conservation of Habitats Regulations not applying at these stages but I’m not aware of any authorities yet adopting that position. We await the inevitable appeal decisions. 

I referred in my 26 March 2022 blog post to Jay J’s first instance ruling in R (Wyatt) v Fareham Borough Council and Natural England, where a claimant failed to persuade the court that Natural England’s previous 2020 advice on achieving nutrient neutrality in the Solent region was, in the light of the precautionary approach, in fact not stringent enough.

The claimant secured permission to appeal to the Court of Appeal. If the court had overturned that ruling that would have put us in an even more difficult place but the court (Lindblom LJ, Singh LJ and Males LJ) dismissed the appeal on 15 July 2022. A bailii transcript is not available but barrister Conor Fegan (who acted for the claimant, assisting Greg Jones QC) has posted a link to the judgment on LinkedIn and, also on LinkedIn, David Elvin QC (who appeared for Natural England, leading Luke Wilcox – Tim Mould appeared for Fareham) has posted an excellent summary. Because it’s a hot Saturday afternoon I’m not embarking on my own summary – please read David’s!

After quite a gap we have another clubhouse Planning Law Unplanned session arranged for 6 pm on 19 July 2022. We were originally going to look at whether or not it is correct that LURB represents a “power grab” by Government, as postulated by some. But in the light of events, we will extend the remit of the discussion to a neutral (of course) evaluation of what the changes within DLUHC and the prospective change of prime minister are likely to mean more fundamentally for our planning system and any potential reform. The speakers so far include Steve Quartermain CBE and Killian Garvey but I’d love to hear your views. Join here.

Simon Ricketts, 16 July 2022

Personal views, et cetera

Summer Of LURB

What progress has there been on the Levelling-up and Regeneration Bill since it was introduced into the House of Commons on 11 May 2022 (see my 14 May 2022 blog post Does LURB Herald A More Zonal Approach to Planning After All?)?

The Second Reading debate was held on 8 June 2022 and I have just been reading the Hansard transcript– it wasn’t particularly edifying and I should just have relied on Nicola Gooch’s excellent summary in her 9 June 2022 blog post Tainted LURB: What can we learn from the Levelling Up & Regeneration Bill’s Second Reading?

I was left feeling that the nuances of how our wretchedly complicated, but still, at some level, functional system are lost in the political chatter. Of course, these sessions aren’t “debates” as such but in large measure a long succession of disjointed interventions and special pleading. Has anyone yet coined the term NIMC? There was certainly a lot of “not in my constituency” and very little discernible appreciation of the utter reliance of this country on private sector risk-taking and funding for most new homes (regardless of tenure) and employment-generating development. How can the development of 300,000 homes a year (confirmed by Michael Gove in Select Committee on 13 June 2022 still to be the target) be remotely possible in this political and fiscal climate? So many MPs assert the case for a lower target for their particular constituency: we know what underlies the clamour against centralisation of power (a theme we’ll come back to shortly). Development is held again and again to be the culprit for failing public services, lack of infrastructure, waiting lists at GPs’ surgeries and so on – ahem, it’s new development that ends up paying for much of this – existing residents should look rather at the ways in which the Government chooses to manage and fund  the provision of health care and other services.  And if the complaint is not that new residents are overwhelming local services (not true) it’s that developers are securing permissions and then choosing not to building them out (not true, although there are certainly unnecessary delays largely caused by the clunkiness of the planning system itself: you want to amend your development proposals to reflect the inevitable market changes or regulatory requirements since you first applied for planning permission years ago? Well that’s not going to be a simple process at all my friend). (Beauty as a way to securing greater acceptance of development? Despite the Government having alighted upon that particular agenda, driving the proposals around local design codes for instance, that issue seemed to receive little airtime).

Rant over. 

The Bill entered Committee stage on 21 June 2022. The Public Bill Committee first heard evidence from various witnesses and then started line by line consideration of the Bill on 28 June 2022. They have not yet reached the planning provisions but the transcript of the discussion so far is here.

The Levelling-up, Housing and Communities Select Committee, chaired by Clive Betts MP, is holding a mini inquiry into the Bill. Michael Gove MP, Stuart Andrew MP and Simon Gallagher all gave evidence on 13 June 2022, which was slightly more illuminating. For instance, an exchange in relation to design codes from the session:

“Chair: Are we going to have the same level of consultation on the supplementary plans and design codes [as on the local plan]?

Simon Gallagher: Yes. One of the objectives of design codes is that they are locally popular, which is going to require a degree of engagement. Supplementary plans are created as one of the vehicles by which there would be opportunity for proper engagement, or legal force design codes. One of the problems with design codes at the moment is that they are often produced as supplementary planning guidance, which has no legal force.

One thing we have done in the Bill, subject to Parliament’s views, is to create something that is a legal device, a supplementary plan, which must be consulted on. Design codes must be provably popular and we are using the Office for Place to champion the best means of that community engagement.”

One of the themes that has dominated discussion of the Bill has been a concern that it could lead to a centralising of power, for instance by way of the requirement that decisions should be made in accordance with national development management policies (as well as local plans), unless material considerations “strongly” indicate otherwise – thereby putting this potentially amorphous concept of national development management policies (the extent of which is for the Government to determine and which can be added to or amended by the Government with as little prior consultation as it chooses) on the same level as statutory local plans. 

Landmark Chambers barristers Paul Brown QC and Alex Shattock have created some waves with their 30 May 2022 briefing note on the provisions in the Levelling Up and Regeneration Bill concerning public participation in the planning system for the campaign group Rights Community Action:

“a) The Bill represents a significant change to the existing planning system. It undermines an important planning principle, the primacy of the development plan, by elevating national development management policies to the top of the planning hierarchy.

b) Unlike development plans, which are produced locally via a statutory process that involves considerable public participation, the Bill contains no obligation to allow the public to participate in the development of national development management policies.

c) The Bill also introduces two new development plan documents, spatial development strategies and supplementary plans. The Bill provides for very limited opportunities for public participation in the production of these documents.

d) The Bill introduces a new mechanism to allow the Secretary of State to grant planning permission for controversial developments, bypassing the planning system entirely. There is no right for the public to be consulted as part of this process.

e) Overall, in our view the Bill radically centralises planning decision-making and substantially erodes public participation in the planning system.”

Clive Betts pursued this theme with the witnesses on 13 June 2022:

“Chair: I am told that this is new in the way it is written into legislation. We have had very interesting legal advice from Paul Brown QC and Alex Shattock from Landmark Chambers, and it might be helpful if the Committee wrote to you with some of the questions that they have raised, which are pretty serious accusations of a centralisation that these measures are bringing about.

Michael Gove: Of course, I would be more than happy to explain the position and, indeed, any distance that these proposals place between themselves and the existing practice. I do not believe that they do significantly, but I am very happy to engage with the advice that the Committee has sought, and with others as well.

Simon Gallagher: Just to add to that, the Secretary of State referred a few minutes ago to the national planning policy framework prospectus that we were going to publish in July. We intend to set out in that how we can use these powers most effectively. That will give us the basis for proper engagement. I accept that, on the face of the Bill, it is a bit hard to read our intentions, so we need a little bit more detail and explanation out there, which will help.”

There was a further session on 20 June 2022, with evidence given by Victoria Hills RTPI), Hugh Ellis ((TCPA)and Chris Young QC. 

Clive Betts’ has subsequently written to Michael Gove asking for his response by 4 July 2022 to a number of points in the “opinion” by Paul Brown QC and Alex Shattock (NB for what it’s worth, it’s not an opinion – barristers are careful in their use of language, it’s just a briefing note). 

This month we can also expect to see the Government’s prospectus as to its intended approach to revising the NPPF as well as how it intends to draw up its national development management policies. 

We are going to be running our own discussion on Clubhouse on the “who will have the power?” question, at 6 pm on 19 July. More details soon but do join here. Indeed, if you would like to speak do let me know – we would like a diverse range of voices and views. 

I will also be speaking at the National Planning Forum event “The good, the bad and the beautiful – the Levelling Up and Regeneration Bill – a planning panacea?” on 5 July and hope to explore the issues a little further alongside an excellent panel of fellow speakers.

Simon Ricketts, 2 July 2022

Personal views, et cetera

Pic courtesy AARP

Does LURB Herald A More Zonal Approach to Planning After All?

I’ll explain what I mean in a moment.

But first some preliminaries.

LURB of course seems to be the now accepted acronym for the Levelling-up and Regeneration Bill, laid before Parliament on 11 May 2022.

The Bill proposes a wide range of legislative measures across local government, regeneration, planning and compulsory purchase.

Aside from the Bill itself it’s worth having to hand:

⁃ the Explanatory Notes

⁃ the Government’s policy paper

⁃ the Government’s response to the Select Committee report on the planning white paper

My Town Legal colleagues have put together a fantastic (I think) 17 page summary of the main planning and compulsory purchase provisions of the Bill. Thanks Safiyah Islam and the following contributors:

• Part 3, Chapter 1 – Planning Data – Aline Hyde

• Part 3, Chapter 2 – Development Plans – Emma McDonald

• Part 3, Chapter 3 – Heritage – Cobi Bonani

• Part 3, Chapter 4 – Grant and Implementation of Planning Permission – Lucy Morton

• Part 3, Chapter 5 – Enforcement of Planning Controls – Stephanie Bruce-Smith

• Part 3, Chapter 6 – Other Provision – Stephanie Bruce-Smith

• Part 4 – Infrastructure Levy – Clare Fielding

• Part 5 – Environmental Outcomes Reports – Safiyah Islam

• Part 6 – Development Corporations – Amy Carter

• Part 7 – Compulsory Purchase – Raj Gupta

* Relevant clauses in Part 2 (Local Democracy and Devolution), Part 8 (Letting by Local Authorities of Vacant High-Street Premises), Part 9 (Information About Interests and Dealings in Land) and Part 10 (Miscellaneous) – Victoria McKeegan

If you would like to receive further detailed updates from time to time please email town.centre@townlegal.com.

I held a Clubhouse session on 12 May 2022 where I discussed the changes and their possible implications alongside Catriona Riddell, Phil Briscoe, Nick Walkley and Meeta Kaur. It is available to listen to here.

For a deeper dive into the compulsory purchase elements, do join our next Clubhouse session at 6 pm on Tuesday 17 May 2022, where my colleagues Raj Gupta and Paul Arnett will be leading a discussion with special guests Charles Clarke (DLUHC, previous chair of the Compulsory Purchase Association), Henry Church (CBRE, and current chair of the Compulsory Purchase Association), Caroline Daly (Francis Taylor Building), Virginia Blackman (Avison Young) and Liz Neate (Deloitte). Some line up! Join here.

Raj and Paul have also started a blog, Compulsory Reading, focused on CPO issues. The first post is here and, guess what, this will be compulsory reading if your work touches at all on the intricate and changing world of compulsory purchase law.

Phew! So what was I getting at in the heading to this post? Surely any fule kno that there was once a government white paper in August 2020 that, amongst other things, proposed a more zonal approach to planning – with local plans throwing all areas into three hoppers: protected, restricted and growth – but that the political lesson learned was that this would be a vote loser and so the zonal approach was abandoned by incoming Secretary of State Michael Gove in the wake of the Chesham and Amersham by-election?

The idea of growth areas (where allocation would amount to automatic development consent) has certainly been abandoned, but the consequence of a number of the proposals in the Bill in my view leads us more towards a system where there is much less decision making flexibility in relation to individual planning applications and appeals. Instead, planning decisions will need to be made in accordance with the development plan and national development management policies “unless material considerations strongly indicate otherwise”.

So developers will need to make sure that:

⁃ development plans (local plans, neighbourhood plans) etc allocate the necessary land.

– the associated mandatory local design codes are workable

⁃ they can work within the constraints of whatever national development management policies the Government arrives at.

If development accords with these requirements, planning permission should be a doddle. If not, you plainly need to overcome a heavy presumption against. Our current flexible system (sometimes good, sometimes bad) will take a big lurch towards being rule-based or, dare I say it, zonal.

This may be a Good Thing or it may be a Bad Thing. Much depends on whether development plans, local design codes and national development management policies are properly tested for their realism. There will be even more focus on testing the soundness of local plans.

However, when it comes to local plan making, there are some major unresolved uncertainties:

⁃ First, what housing numbers do local authorities need to plan for? The Government still aspires to a 30 month local plan preparation to adoption timescale but that is only going to work if you have a largely “plug in and play” approach to the numbers, as was envisaged in the White Paper. What will happen to the standard methodology? We don’t get know. The Government’s policy paper says this:

“The changes in the Levelling Up and Regeneration Bill will require a new National Planning Policy Framework for England. The Government continues to listen to the representations of MPs, councillors and others on the effectiveness not only of the formula but the surrounding policies. Alongside Committee stage of the Bill, it intends to publish an NPPF prospectus setting out further thinking on the direction of such policies.”

What numbers are we planning for as a country? Are we still targeting 300,000 homes a year? The Government’s response to the Select Committee report on the planning white paper says this:

“The Government is determined to create a market that builds the homes this country needs. Our ambition is to deliver 300,000 homes per year on average and create a market that will sustain delivery at this level. There is compelling evidence that increasing the responsiveness of housing supply will help to achieve better outcomes. There seems to be consensus that 250,000 to 300,000 homes per annum should be supplied to deliver price and demand stability. For example, a 2014 joint KPMG and Shelter report highlighted that 250,000 homes per annum were needed to address price and demand pressures.”

⁃ Secondly, what will replace the duty to co-operate, which will be abolished? What will the new duty to assist really amount to? Can authorities adjoining urban areas with high unmet housing needs simply turn away from meeting those needs?

⁃ Thirdly, what if the allocations in the plan prove to be undeliverable or do not come forward? The safety net/potential stick of the five year housing land supply requirement (and presumably the tilted balance) in the case of up to date plans is to be abolished according to the policy paper:

“To incentivise plan production further and ensure that newly produced plans are not undermined, our intention is to remove the requirement for authorities to maintain a rolling five-year supply of deliverable land for housing, where their plan is up to date, i.e., adopted within the past five years. This will curb perceived ‘speculative development’ and ‘planning by appeal’, so long as plans are kept up to date. We will consult on changes to be made to the National Planning Policy Framework.”

Much is to be resolved here before we can begin to work out whether the proposals in the Bill will be an improvement on the present position.

Of course, the Government recognises that more work is needed. The following forthcoming consultation processes are identified:

“Technical consultations on the detail of the Infrastructure Levy and changes to compulsory purchase compensation.

• A consultation on the new system of Environmental Outcomes Reports which will ensure we take a user-centred approach to the development of the core elements of the new system, such as the framing of environmental outcomes as well as the detailed operation of the new system.

• A technical consultation on the quality standards that Nationally Significant Infrastructure Projects will be required to meet to be considered for fast-track consenting and associated regulatory and guidance changes to improve the performance of the NSIP regime.

• Proposals for changes to planning fees.

• Our vision for the new National Planning Policy Framework (NPPF), detailing what a new Framework could look like, and indicating, in broad terms, the types of National Development Management Policy that could accompany it. We will also use this document to set out our position on planning for housing, and seek views on this, as well as consulting on delivering the planning commitments set out in the British Energy Security Strategy.”

I hope this serves as some sort of introduction to the Bill and a taster as to some of the issues which will be occupying so many of us as the Bill passes through its Parliamentary stages. I don’t expect it to be on the statute book before early 2023, with a fair wind, and most of its provisions will not be in force until 2024 at the earliest. Final health warning: Bills change – we can expect plenty of amendments, omissions and additions over coming months.

Aside from my earlier plugs for our newsletters and the Planning Law Unplanned clubhouse sessions, I would also recommend two other blog posts: those of Nicola Gooch and Zack Simons . None of us has come up with a satisfactory LURB pun yet but I’m sure we all have our teams working on it.

Simon Ricketts, 14 May 2022

Personal views, et cetera

Beauty, Infrastructure, Democracy, Environment, Neighbourhoods