Parliament, Purdah, Planning

The pre- general election “purdah” period starts at midnight tonight (21 April). What this means is set in Cabinet Office guidance published yesterday, 20 April.
The guidance says:

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

So don’t hold your breath for any decision letters to be issued. 
In relation to current consultation processes, the guidance says:

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


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


– prolonging the consultation period; and


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

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

There are currently six DCLG consultation processes which are still open:

* Review of park homes legislation: call for evidence

* Running free: consultation on preserving the free use of public parks

* Banning letting agent fees paid by tenants

* 100% business rates retention: further consultation on the design of the reformed system

* Fixing our broken housing market: consultation

* Planning and affordable housing for Build to Rent

the last two of course being particularly important for us in the housing and planning sector. 

The Department for Transport is currently consulting on its draft Airports National Policy Statement in relation to the expansion of Heathrow and on reforming policy on the design and use of UK airspace.

Surely these consultation processes will all now be extended. Can any of them be said to be “aimed solely at professional groups”?
The Government faces an interesting dilemma in relation to its awaited consultation draft air quality plan. Garnham J had ordered on 21 November 2016 that the draft be published by 24 April 2017 following previous deadline breaches summarised in my 4.11.16 blog post. The announcement of the election and consequent purdah period does not automatically extend that deadline. Will we see a draft by the deadline or will ClientEarth be back before the court?
Notwithstanding purdah, Parliament will continue to sit until 2 May 2017. The outstanding Bills are:
• Bus Services Bill

• Children and Social Work Bill 

• Digital Economy Bill 

• Health Services Supplies Bill

• Higher Education and Research Bill 

• National Citizen Service Bill

• Pension Schemes Bill

• Technical and Further Education Bill

and of course the Neighbourhood Planning Bill, which is at its final stages, with final consideration by the House of Lords on 25 April 2017 of amendments made by the Commons. Whilst technically there is therefore the time available before Parliament dissolves, the BBC website  has an interesting analysis of the practical constraints that there will be on Parliamentary time during this final period. My understanding is that public Bills cannot be held over and so the Bill would fall. 
Finally, as we wait for the parties’ manifestos and various pressure groups compose their letters to Santa, this is a collection of some of the commitments which some Town Legal colleagues would personally like to see (tongue in cheek – what votes in many of these one wonders?). We will be jotting up the scores once the manifestos are published but a more than a 10% convergence would be doing pretty well I suspect…
1. Revised NPPF as previously signalled, but with consultation on final wording.

2. Real sanctions for local planning authorities which continue to delay in preparing plans or which do not plan adequately to meet housing requirements. Statutory duty to make local plans every 10 years. 

3. Review of green belt boundaries in the south east should be obligatory at least every 20 years. Where there are no green belt boundaries fixed because there are no local plans in place , the Secretary of State should appoint PINS to lead a plan making exercise at the expense of the defaulting council with step in rights if the Council wants to come back into the fold.

4. Review of effectiveness of Localism Act 2011 procedures, including neighbourhood plan making.

5. No weakening of environmental protections via Great Repeal Bill.

6. Urgent conclusion to CIL review, with short-term remedial measures, including greater flexibility for local planning authorities and developers in relation to strategic sites.

7. Enabling urban extensions and new settlements of true scale (eg 10,000 to 15,000 homes plus associated infrastructure and development) to proceed by way of NSIP.

8. Introduction of duty to cooperate to apply as between the London Mayor and local planning authorities.

9. Reform of rights to light law to reflect modern realities.

10. Greater flexibility for local authorities to dispose of land for less than best consideration.

11. Require better coordinated forward planning with statutory undertakers and infrastructure providers.

12. General commitment to consultation and piloting prior to legislative changes in relation to planning.

13. Increased resourcing in relation to the planning system so as to achieve better quality, more consistent, more timely and more efficient outcomes.

14. High speed Broadband and electric car charging should be a standard requirement.

15. Clarity on approach to viability and review mechanisms.

16. A more stable system with no more changes for the next two years at least (save for these ones!)

Back to the day job…

Simon Ricketts 21 April 2017

Personal views, et cetera

Five Problems With Neighbourhood Plans

The real effects of neighbourhood plan making on housing delivery and on the efficient, democratic operation of the planning system are hard to pin down and yet the Government continues to champion its role. Are we really heading in the right direction? After all, despite the positivity of government sponsored initiatives such as mycommunity.org.uk  it isn’t all sweetness and light. Here is my personal worry list:
1. Neighbourhood Plans are usurping the role of local plans, whilst being subject to a lighter-touch examination process
The Court of Appeal, in R (DLA Delivery Ltd) v Lewes District Council  (10 February 2017), has now confirmed that a neighbourhood plan may be made without there being an up to date local plan. Until such time as the local plan comes forward, as the only up to date development plan, the neighbourhood plan’s policies will benefit from the statutory presumption in section 38(6) of the Planning and Compulsory Purchase Act 2004 and from paragraph 198 of the NPPF: “[where] a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted”.
This gives neighbourhood plans a role which was surely not foreseen by Parliament. Neighbourhood plans are intended to be in general conformity with the local plan’s strategic policies. But instead any policy vacuum can be filled by the neighbourhood plan’s own strategic policies. Whilst the Planning Practice Guidance urges collaborative working between neighbourhoods and local planning authorities, this does not prevent problems from arising which are exacerbated by two further factors:
–  in order to survive the ‘relatively limited‘ (Court of Appeal in DLA Delivery, para 5) examination process, neighbourhood plans only have to satisfy the ‘basic conditions’ set out in the paragraph 8(2) of Schedule 4B to the Town and Country Planning Act 1990 as applied to neighbourhood plans by section 38A of the Planning and Compulsory Purchase Act 2004, rather than the wider and more rigorous soundness test applicable to local plans. 
–  the Neighbourhood Planning Bill proposes to accelerate the process, by deeming post-examination pre-referendum neighbourhood plans to be a material consideration in the determination of planning applications (clause 1) and by deeming post-referendum neighbourhood plans to be treated as part of the statutory development plan ahead of formally being made by the district or borough council (clause 2). It will be easier for the Secretary of State to dismiss appeals on the basis of inconsistency with emerging neighbourhood plans (a sensitive subject for DCLG given for example Holgate J’s quashing in Woodcock Holdings Limited v Secretary of State, 1 May 2015 and a series of examples of the Secretary of State having consented to judgment in similar circumstances). 
2. The Neighbourhood Plan process is “complex and burdensome”
Not my words but a description given by participants, according to recent research by the University of Reading: Neighbourhood Planning Users Research Revisited.  
Any community embarking on a neighbourhood plan has to be ready for the long haul. Because policies within the plan can have real consequences for communities and developers alike, it is no surprise that the process can be litigious. 
R (Crownhall Estates Limited) v Chichester District Council  (Holgate J, 21 January 2016) was the third (third!) judicial review in relation to the Loxwood Neighbourhood Plan, with the claimant developer seeking unsuccessfully to challenge the plan’s provision for only 60 homes against a background of a failure of the district council to meet its obejectively assessed housing needs. 

I do not believe that there is a transcript of Dove J’s rejection in Swan Quay LLP v Swale Borough Council on 31 January 2017 of a challenge to the Faversham Creek Neighbourhood Plan which contained a policy preventing redevelopment of the claimant’s property on the basis that it would lead to ‘gentrification’. The ruling is summarised by the Faversham Creek Trust in a press release.  
Challenges commonly focus on whether there has been compliance with the requirements of the Strategic Environmental Assessment Directive, another unsuccessful ground of challenge in DLA Delivery. R (Stonegate Homes Limited) v Horsham District Council (the late, missed, Patterson J, 13 October 2016) was an example of a successful challenge on this basis. The Haddenham Neighbourhood Plan is another, where Aylesbury Vale District Council consented to judgment.
3. Neighbourhood Plans dissipate the local planning authority’s resources

Parish councils such as Haddenham are unlikely to have the resources to resist a legal challenge, leaving the responsibility to the local planning authority which, under the legislation, formally “makes” the plan. How much say will they have over the way in which the defence case is brought and, as importantly, why should the local planning authority’s resources be stretched in this way?

We also have of course dissipation of CIL proceeds, with 15% of CIL proceeds available to be spent by parish councils, increased to 25% where a neighbourhood plan is in place – proceeds that would otherwise have applied towards infrastructure projects required to deliver development. 
4. Neighbourhood Plans are unnecessary and marginalise the role of the local planning authority

District and borough councils are designed to operate down to ward level. We elect ward councillors to represent our local interests – that is to say, the things we care about in relation to our home environment, our neighbourhood. Local plans can and do include policies at neighbourhood level. Additionally, there is scope for area action plans to provide more detailed site-specific policies where justified. 

We should all engage more with local plan making. Does the distraction of neighbourhood planning fuel the inaccurate sense that what happens at district or borough level is remote and not to do with us? What if the energy that one sometimes sees expended on neighbourhood planning were to be properly harnessed at local planning authority level, with proper access to officers and with consistency of plan making over a strategically sensible area?
5. Neighbourhood Plans are not fit for the further roles that Government continues to give them
Neighbourhood planning is of course voluntary. It is more prevalent in affluent areas and its heartland is in the south east (Turley research, 2014). In unparished areas it is the preserve of unelected groups. And yet the Government intends it to play a grown up role alongside local plans. Indeed, given that they have statutory force, unlike the NPPF, have neighbourhood plans in fact become more important than the Government’s own planning policies?
Gavin Barwell’s 12 December 2016 written ministerial statement (see my blog post That Ministerial Statement) set out that relevant policies for the supply of housing in a neighbourhood plan that is part of the development plan should not be deemed to be ‘out-of-date’ under paragraph 49 of the National Planning Policy Framework where the following circumstances arise at the time a planning decision is made: 
* the written ministerial statement making the policy change on 12 December 2016 is less than 2 years old, or the neighbourhood plan has been part of the development plan for 2 years or less;

* the neighbourhood plan allocates sites for housing; and

* the local planning authority can demonstrate a three-year supply of deliverable housing sites. 

The statement is of course the subject of a judicial review. In the meantime, the Government’s Housing White Paper has added the further qualification that neighbourhoods should be able to demonstrate that their site allocations and housing supply policies will meet their share of local housing need and that the local planning authority should be able to demonstrate through the White Paper’s housing delivery test that, from 2020, delivery has been over 65% (25% in 2018; 45% in 2019) for the wider authority area (to ensure that delivery rates across the area as a whole are at a satisfactory level). 
 The White Paper also proposes changes to the NPPF to “highlight the opportunities that neighbourhood plans present for identifying and allocating small sites that are suitable for housing, drawing on the knowledge of local communities”.

Finally, local planning authorities will now be “expected to provide neighbourhood planning groups with a housing requirement figure, where this is needed to allow progress with neighbourhood planning. As part of the consultation on a new standard methodology for assessing housing requirements, we will seek views on whether a standard methodology could be developed for calculating housing need in a neighbourhood plan area“.
Let us remember that these are voluntary plans, prepared by parish councils and community groups. Are we not seeing, yet again, a relentless move towards process and complexity, in an effort to make running repairs to a mechanism that was not designed for this function? 
Simon Ricketts 19.2.17
Personal views, et cetera

What Happened To The Beautiful Jigsaw? Government Policy v The Plan-Led System

“If we are doing things in parallel, it does mean when we get towards the summer we can make sure these things are knitting together properly and actually bring them together, with those pieces of the jigsaw starting to come together as one whole piece—hopefully, one whole beautiful piece as well” – Brandon Lewis, then minister for housing and planning, 24 February 2016, in evidence to the Commons CLG Select Committee – responding to concerns as to the various changes to the planning system then (and still) underway, including proposed changes to the NPPF, LPEG review and the Housing and Planning Bill (now an Act but still inchoate). (And he was referring to summer 2016…)
Of course a few other things happened to knock summer 2016 off course. But still we wait for the full picture and hence the growing frustration over continued delays to the Housing White Paper and speculation as to its contents.
“OK, that’s politics”, we may say, but is there a more fundamental, longterm, problem to be tackled?
“[M]inisters cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual operation” (Supreme Court in R (Miller) v Secretary of State for Exiting the European Union 24 January 2017, para 51). 
On reading this, it struck me that there is a logical disconnect at the heart of the modern planning system. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that decisions be taken in accordance with the statutory development plan “unless material considerations indicate otherwise”. However, the Government’s non-statutory NPPF, despite an amorphous status as a “material consideration”, somehow often ends up trumping the statutory plan (for example – currently – by way of para 49 deeming policies for the supply of housing to be regarded as out of date in defined circumstances, triggering the para 14 presumption and – under the changes consulted upon last year – by way of the proposed housing delivery test). From where does the NPPF gain its authority in our statutory plan-led system? What is to prevent an LPA from deciding to give its policies little weight and how does the resultant uncertainty help anyone?
The Court of Appeal in Suffolk Coastal District Council v Hopkins Homes, Richborough Estates v Cheshire East Borough Council  (Court of Appeal, 16 March 2016) set out the position as follows:
“The NPPF is a policy document. It ought not to be treated as if it had the force of statute. It does not, and could not, displace the statutory “presumption in favour of the development plan”, as Lord Hope described it in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447 at 1450B-G). Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, government policy in the NPPF is a material consideration external to the development plan. Policies in the NPPF, including those relating to the “presumption in favour of sustainable development”, do not modify the statutory framework for the making of decisions on applications for planning permission. They operate within that framework – as the NPPF itself acknowledges, for example, in paragraph 12 (see paragraph 12 above). It is for the decision-maker to decide what weight should be given to NPPF policies in so far as they are relevant to the proposal. Because this is government policy, it is likely always to merit significant weight. But the court will not intervene unless the weight given to it by the decision-maker can be said to be unreasonable in the Wednesbury sense”
Whilst the statutory role of government guidance is clear in relation to plan-making (section 19 of the Planning and Compulsory Purchase Act 2004 provides that “in preparing a local development document the local planning authority must have regard to…national policies and advice contained in guidance issued by the Secretary of State”) there is no such statutory signposting in relation to decision-making. 
It didn’t have to be this way. Consideration was indeed given to giving the NPPF statutory status as the Localism Act went through Parliament. The then minister of state for decentralisation Greg Clark stated in Public Bill Committee on 15 February 2011:
“There are some suggestions that a reference to the significance of the NPPF would be helpful. Against that, however, I have heard some concerns in our discussions that link to the points made by the right hon. Gentleman the Member for Greenwich and Woolwich about not taking a year zero approach to things and completely designing the system from scratch. One of the features of the present regime with which the right hon. Gentleman is familiar is the importance of section 38(6) of the Planning and Compulsory Purchase Act 2004. That provision establishes the primacy of the development plan, which obviously needs to be consistent with national policy. If we were to establish in the Bill a new primacy for national policy that is different from how we have managed in recent decades, I would want to be cautious that we did not introduce something, albeit with the best of intentions, that changed the accepted understanding of the importance of the primacy of the development plan and that, in effect, interferes with section 38(6) without good purpose. If there is a balance of advantage in the approach, I think we can contemplate it, but it behoves us to reflect carefully on the representations that have been made, which I undertake to do.

Scotland’s National Planning Framework has statutory effect pursuant to section 1 of the Planning etc (Scotland) Act 2006
In relation to infrastructure, we of course have a statutory regime of national policy statements  to set the framework for decisions in relation to development consent orders, with ten NPSs having been prepared so far pursuant to section 5 of the Planning Act 2008.
In contrast to these regimes, the NPPF can be amended with little Parliamentary scrutiny. 
The position is even worse in relation to written ministerial statements on planning policy matters, when one recalls, for example:
– Eric Pickles’ 20 May 2010 statement that the then intended abolition of regional strategies was to be a material planning consideration in decision-making, which led to Cala Homes (South) Limited v Secretary of State  (Court of Appeal, 27 May 2011). The court concluded that “…it would not be safe for the Court to assume that at this stage there are no circumstances in which any decision-maker could rationally give some weight to the proposed abolition of regional strategies. In view of the uncertainty created by the legal obstacles…[the need for Parliamentary process to be undergone and SEA]… and any decision-maker who does think it appropriate to give some weight to the Government’s proposal when determining an application or an appeal would be well-advised to give very clear and cogent reasons for reaching that conclusion, but that does not mean that there could be no case whatsoever in which any decision-maker might be able to give such reasons.

– Eric Pickles’ 28 November 2014 statement introducing the vacant building credit and small sites affordable housing threshold, which led to West Berkshire Council v Secretary of State  (Court of Appeal, 11 May 2016). Despite the absolute wording of the statement, it was interpreted by the court as necessarily admitting of exceptions, leading now to a mess of conflicting appeal decisions by inspectors, well documented by Planning magazine (27 January 2017 issue).
– Gavin Barwell’s 12 December 2016 statement amending (without prior consultation) the five year housing land supply threshold in para 49 of the NPPF, which has recently led to a judicial review being brought by a group of no fewer than 25 housebuilders and developers. 
Brandon Lewis’ statement at the outset of this post is quoted in the Commons CLG Select Committee’s review of consultation on national planning policy  published on 1 April 2016. The Committee responded to his optimism as follows:
“We welcome the Minister’s indication that any changes to the NPPF resulting from this consultation will be made during summer 2016, and that he intends to draw together the outcomes of the consultation with those of the other changes affecting the sector“. 

The Committee’s formal recommendations included: 

“As a priority the Department should publish clear timescales for the next steps for this consultation, including timescales for the Government’s response, implementation, and suitable transitional arrangements. If the changes to the NPPF are delayed beyond summer 2016, we expect the Minister to write to us to explain the reasons and provide updated timescales”

” As a matter of principle, we believe that when changes are made to the wording of a key policy framework such as the NPPF, there should be a two-stage consultation process: first on the overall policy, and subsequently on the precise wording which will give effect to the change. If there is no further consultation on the specific wording of the consultation proposals, it is essential that the Department listens carefully to concerns about ambiguity or lack of clarity in the revised NPPF, and provides clarification where required”

“To ensure that proper consideration is given to the impact of changes resulting from this consultation, and from other developments in the housing and planning sector, the Department should carry out a comprehensive review of the operation of the NPPF before the end of this Parliament. The review must include sufficient opportunity for appropriate consultation with stakeholders, and should follow a two-stage approach to consulting, first on general principles, and subsequently on precise wording.”
All sensible, but what a waste of energy. Nine months after the report there has been no Government response!

How are decision-makers meant to balance non-statutory, unstructured interventions from ministers with the outcomes pointed to by statutory planning policies? This surely a very difficult task for decision-makers and with the constant risk of unwelcome surprises for those at the sharp end. Personally, I would go further than the Select Committee’s recommendations and instil basic, legally binding, procedural discipline into ministers’ approach to policy making, given the risk that the statutory planning system is otherwise frustrated, emptied of content or prevented from effective operation (to use the words of the Supreme Court). 
Simon Ricketts 28.1.17
Personal views, et cetera

4 Possible Improvements To The Planning System Using Black Box Thinking

If you’ve read Matthew Syed’s Black Box Thinking  , which you probably have, you’ll know that the theme is that people, teams and systems perform at their best when they learn continuously from mistakes and failures. The more complex the system, the more important it is that there is an open loop rather than closed loop culture. 

How to apply this to the planning system?
1. The Government should clarify the NPPF whenever necessary

I get it that consistency in overall policy direction is important. But it is scandalous that the ambiguities of this one document have caused and continue to cause such scope for disputes. Landmark Chambers keep a very useful digest of court rulings in relation to the interpretation of the NPPF. Just look at the hundreds of cases listed and reflect on the time, cost and delay that each has caused to public sector and private sector alike. 

Three examples, each of which could be immediately resolved with the insertion of a classificatory footnote:

– I am obviously pleased to be one of numerous lawyers acting in the Hopkins Homes v Suffolk Coastal; Cheshire East v Secretary of State and Richborough Estates litigation, to be heard in the Supreme Court in February 2017. But why is this hearing even necessary? The case turns upon whether the Court of Appeal was correct when it ruled on 17 March 2016 that when the Secretary of State wrote in para 49 of the NPPF “relevant policies for the supply of housing” this is to be properly interpreted as “relevant policies affecting the supply of housing”.

– Heading towards the Court of Appeal is Dartford Borough Council v Secretary of State  (Deputy High Court Judge Charles George QC, 21 January 2016), the issue being whether the court was right to conclude, from the inclusion of “residential gardens” in “built up areas” from the definition of “previously developed land” or “brownfield land” within the NPPF, that residential gardens in outside built up areas are not to be regarded as previously developed land. 

– Similarly currently heading to the Court of Appeal is R (DLA Delivery) v Lewes District Council  (Foskett J, 31 July 2015), on the question whether a neighbourhood plan can precede an up to date local plan. 

These are narrow points that do not require any wholesale re-writing of the NPPF. 

It is ironic that the gestation of the NPPF lies in the conservative party’s 2010 Open Source Planning document. This is far from open source planning.

Isn’t it also odd in the extreme for so many lawyers and planners to be attempting to make sense of what the NPPF really means, when this document is no Oracle of Delphi: it is a practical plan written on behalf of Government to express its desired political direction and the current Secretary of State no doubt has a view which can be simply expressed by way of footnoting the document!
2. Learn from experience



Legislative changes commonly are brought about with little by way of initial experimentation in pilot areas – save where the proposal is so outlandish (such as the idea of alternative providers of planning application processing services) that one suspects the pilot has been offered as a political compromise or to enable tactical retreat. 
The outcomes of pilots need to be rigorously reviewed, without preconception – and the pilot authorities need to be selected randomly, rather than those who volunteer. Would we have got into our current CIL mess with this approach? The more complex the system, the greater the inevitability of unanticipated outcomes. 
3. A more transparent system



I would hope that the Government’s chief planner Steve Quartermain receives on a say monthly basis a summary of:
– all Planning Court rulings which have found against the government

– all PINS reports where interpretation of government guidance, or application of procedure, has led to material uncertainty or problems

together with focused recommendations as to the corrections to policy or legislation that might as a result be made to stop that uncertainty or problem arising again. 

Does he?
Where problems are identified, they need to be addressed far more quickly. The current delay in relation to the CIL working party’s report is inexcusable. Furthermore, when changes are made they should always be made by way of consolidation of previous legislation. Anyone without a paid subscription to Westlaw or similar is at a complete loss in relation to the various iterations of the CIL Regulations. 
Equivalently, on a local basis why don’t LPAs have to consider, openly, what changes in policy or approach may be needed as a result of adverse appeal outcomes in their district or borough? Do members even regularly learn, on an impartial basis, of the reasons why appeals have been lost?
More broadly, there is little systematic transparency so that all can learn from each other’s experiences. Whilst individual reports and decisions can be found, one looks long and hard for any national list of inspectors’ reports on plans (including, as importantly, notes of preliminary meetings and correspondence with the LPA raising issues) and, for appeal decisions falling back on Compass (a premium rate service!), the planning press and word of mouth. How can this help drive understanding, change or consistency?
4. Allow schemes to improve during the application and appeal process



We are moving increasingly to a system where applicants are encouraged to have their schemes fully designed and “oven ready” at the outset of the formal application process, with amendments, particularly during the appeal stage, frowned upon. The PINS planning appeals procedural guide  says that amendments should only be made “exceptionally” at the appeal stage:
“If an appeal is made the appeal process should not be used to evolve a scheme and it is important that what is considered by the Inspector is essentially what was considered by the local planning authority, and on which interested people’s views were sought.”

But hang on – as long as interested people’s views are indeed sought, isn’t it a good thing if a scheme evolves, for the better, as a result of prolonged exposure to opposing views or further information that comes to light? Of course it may be administratively inconvenient but won’t it often lead to a better outcome? Yes, that may lead to delays during the application or appeal stage but that should be something for the applicant or appellant to take on board.

End of polemic. It was a good book anyway. 

Simon Ricketts

Personal views, et cetera

How To Predict, How To Advise

Don’t believe anyone today who confidently predicts what any particular political outcome will be. There are currently too many variables. What does this mean for planners, and planning lawyers, whose roles largely entail predicting and helping  to influence the future? Practical outcomes flow from our advice. Our collective success rate is usually fair to middling at best (although it’s usually difficult to envisage the counter-factual so thankfully who can say!?) and the political and economic uncertainties are obviously currently heightened.

In the short-term, what will be the outcome of any particular decision that is before the Government or any Secretary of State? What will be the trajectory of previously announced changes (for example the forthcoming Neighbourhood Planning and Infrastructure Bill, the Regulations to give life to the Housing and Planning Act, changes to the NPPF) and those anticipated, for example the reform of CIL? What appetite will there be for call-ins or local plan interventions? All valuable information. Wouldn’t we love to be able to advise!
In the longer-term, will we see a Government with a changed policy agenda? Will the populist appetite for localism on a national scale mean greater emphasis over time on the rather different localism espoused by the Localism Act? What now for devolution? How soon will we see changes that water down environmental or competition law protections? Again, a big temptation to jump right in with answers.
Maybe we can. Hopefully in the short-term the changes for planning will be minimal – development activity has a way of going forward whatever the political climate. But that’s my emotional response, partly based on experience, partly based on the need to be positive – after all let’s not talk ourselves into a negative situation.
However, before we give any prediction or advice that is to be relied upon, a few principles:
– the more controversial the political decision the more unpredictable its outcome is (as minds will need to be engaged that are currently applied elsewhere) and the more likely it is to be postponed, but (to add to the uncertainty) always with the counter possibility that it may be announced quickly to be “got out of the way” in all the hubbub, if the real work has already been done (Heathrow anyone? The reality is that we are all guessing, but surely it would take a Cabinet meeting and can we see that on the agenda in coming weeks? My guess is no).

– the more longer-term the question, the more difficult it is to answer, because the uncertainties increase exponentially.

– don’t underestimate the random element in politics: for example, people (who will the decision maker actually turn out to be?); something that happens; something that goes viral and expresses a mood; interactions with economics and markets.

So how to advise and predict? I would suggest that some fundamental rules apply:
– gather all relevant current information and use it to arrive at, rather than corroborate, your conclusions.

– advise based on the facts and as to what constraints there are to political and legal procedures – believe in the rule of law and uphold it. Predictions as to court outcomes are likely to be more reliable (because there are narrower tramlines), although see also the next point.

– be careful not to oversell as to the certainty of anything (I’ve heard QCs advise there’s an 80% prospect of a particular court outcome, when even with a legally ‘certain’ position I would guess that the litigation risk of something completely unpredicted happening is always at least 20%) – the more experienced we are, the more compelling we can sound to others as well as to ourselves.

– don’t be afraid to postulate alternative outcomes and to sensitivity-test (“What if I’m wrong and x happens?”).

– ignore your personal wishes or fears and those of the person asking the question: sub-consciously we all want to reassure. There’s always a positive way of saying “no”.

– don’t assume that things will happen in the way that they usually do: the past is an uncertain predictor of the future and there are fewer reliable patterns “in the moment” than with the benefit of hindsight.

– don’t be a sheep/lemming – the consensus view isn’t necessarily the correct one.

– be clear: unclear advice is no advice; waffled advice is wasting someone’s time and (probably) hiding the fact that the answer is that…you don’t know the answer.

These thoughts were partly sparked by Dan Gardner’s brilliant and unwittingly topical 2011 book, Future Babble (see this Guardian review).
Simon Ricketts 26.6.16
Personal views, et cetera

Short-term implications for planning of that vote

This blog post was going to be about class C of the Use Classes Order.Instead here’s my personal take on the short-term implications for planning of that referendum vote. The most immediate implications are nothing about planning or planning law at all.

1. Obviously market volatility and uncertainty. Many investors and developers will batten down the hatches and proceed with extreme caution. But planning is a long-term activity and sensible investment in the planning process will continue

2. Others with appropriate funding may see pricing opportunities due to the strength of the immediate market reaction. So there will be some quick transactions.

3. Viability on many schemes will have changed overnight although we need to get over the initial shock wave.

4. LPAs may wish to grasp those schemes that will proceed notwithstanding the market disruption – they will be at a premium.

5. Mayor Sadiq Khan has a huge role to play. His mandate in London has been reinforced and he will represent stability in contrast to the confusion and chaos of central government, which will be distracted away from the big planning law issues.

6. A question mark now against at least the timing of some major infrastructure projects, including HS2, until we see the new Cabinet and until the economic implications of the referendum decision play out.

7. Delays to current planning law reforms where any significant ministerial thinking is required. Brains are otherwise engaged.

8. Ages until those big picture changes in relation to EU environmental and competition law – but discussion, debate and speculation on all that will be a continung distraction.

Simon Ricketts 24.6.16

Personal views, et cetera