I mentioned in last week’s blog post that the Government has of course now published its consultation on the environmental outcomes reports system (17 March 2023) which is proposed to replace environmental impact assessment and strategic environmental assessment, as per the enabling provisions in the Levelling-up and Regeneration Bill. Consultation responses are due by 9 June 2023.
This is going to be a fundamental change to our plan-making and decision-making process.
We are going to dive into the detail in a Clubhouse session arranged for 4 pm on 30 March, led by my Town Legal partner Duncan Field, with other panellists including Riki Therivel (Levett-Therivel), Juliette Callaghan and Venessa Thorpe (Trium) and Elin Fradgley (Quod). So that we have an idea of likely numbers and so you receive a reminder when the event starts, do RSVP here.
By way of reminder, Part 6 of the LURB (clauses 138 to 152) sets out the legislative framework for environmental outcomes reports.
The “non-regression” duty set out in clause 142(1) is an important protection:
“The Secretary of State may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed.”
The consultation paper sets out a number of the issues arising from the present system, all of which I’m sure we can all recognise:
• inefficiency
• duplication
• risk aversion
• loss of focus
• issues with data
Under “risk aversion”, Sullivan LJ is quoted from his 2004 Court of Appeal judgment in Blewett:
“It would be no advantage to anyone concerned […] if Environmental Statements were drafted on a purely “defensive basis” mentioning every possible scrap of information […] Such documents would be a hindrance, not an aid, to sound decision-making by the local planning authority since they would obscure the principal issues with a welter of detail”.
(Personally I would expand the comment: this is the direction that the whole planning system has gone, not just in relation to environmental statements, but the whole gamut of application documents, (particularly design and access statements), planning committee reports and planning permissions themselves often with 50 or more conditions imposed where the permission relates to development of any scale or complexity).
I read the consultation document with a view to summarising the main changes from the current system but can’t improve on this pithy summary by Duncan:
“EORs are expected to act as a translator of technical assessment work and only address performance against outcomes in a concise and publicly accessible way; in doing so EORs will need to identify necessary mitigation and/or compensation.
– The range of possible topics (outcomes) to be covered by EORs is likely to be slimmed down to avoid duplication with other assessments required in the planning process.
– Although Government will maintain a distinction between projects where EORs are always required and projects where they may be required, there should be fewer discretionary decisions around screening due to the inclusion of more directive screening criteria.
– On changes to scoping there seems likely to be less of a focus on scoping outcomes in or out and more of a focus on assessing scoped in outcomes in a proportionate way (so some outcomes may be included but assessed in less detail).
– Outcomes will be measured by reference to data-based indicators, and these will be developed at a national level to ensure consistency.
– The Government acknowledges that there needs to be better alignment between assessments at a strategic (plan) level and those at a project level so that they speak to each other; it is hoped that the focus of EORs on the same outcomes and the application of nationally determined indicators will help with this.
– Guidance on alternatives will be developed to focus assessment on realistic/credible options. However, this will need to include an analysis of the alternatives by reference to the mitigation hierarchy (avoidance-mitigation-compensation).
– There will be a greater emphasis on adaptive management of mitigation and monitoring/enforcement of measures after decisions have been taken.
– There is recognition that there needs to be better access to and collection of environmental data to assist with EORs.”
The Government envisages that an EOR at the project stage under the Town and Country Planning Act would be structured as follows:
• a short introduction (which references the project details in the accompanying Planning Statement)
• a short, high level, summary of how reasonable alternatives and the mitigation hierarchy were considered early in the development of the project
• an assessment of contribution towards achieving an outcome supported by the indicators set out in guidance – this will include
• the residual effects on the environment identified through the underlying technical work, with relevant conclusions in the technical work clearly pinpointed
• the current baseline and relevant trend data, similarly identified
• commentary on levels of uncertainty for that data or indicator set
• proposed mitigation, and
• monitoring proposals
• a summary of the contribution of the cumulative effects of the project as a whole on outcomes and how this relates to the conclusions of any strategic or plan level assessment.
Outcomes (to be consulted upon in coming months), measured by reference to a national data set, will need to be set out for at least the following:
• biodiversity
• air quality
• landscape and seascape
• geodiversity, soil and sediment
• noise and vibration
• water
• waste
• cultural heritage and archaeology
The idea is promising. The real challenge, not referred to in the consultation paper? How to discourage the sorts of legal challenges which have caused our current processes to be so bloated, whilst ensuring that unjustified assessment short cuts cannot be taken.
The LURB is currently making slow progress through its Lords Committee stage, due to the hundreds of amendments tabled, some of them by the Government, such as (see amendment 412D) the proposed change to the compulsory purchase system that would allow acquiring authorities in some circumstances to seek a direction, when making a compulsory purchase order, disapplying any entitlement to hope value on the part of the land owner. This could have huge implications on the the land promotion and development market – in that the risk of compulsory purchase at an under-value may well prove a significant potential disincentive to development promoters and those funding them. As usual it was a bit chaotic to begin with but we had a good and sparky discussion on the issue on Clubhouse last week, with the basic concept being defended by Shelter’s Venus Galarza, against an array of compulsory purchase surveyors and lawyers (none of whom were objecting to the objective of enabling greater delivery of housing, including affordable housing – rather the way it being done!). Shelter have their own slightly different amendment, amendment 414, narrow than that of the Government. You can hear it all here.
Looking further ahead, we now have a Clubhouse session on the dreaded Infrastructure Levy arranged for 2pm on 19 April, to be led by another of my Town Legal partners, Clare Fielding. If you would like to join the panel for that one do let me know.
“If passed, REULRR will effectively sweep away any and all EU laws that the Government hasn’t actively decided to keep.
It does this by:
Repealing EU derived laws by the end of 2023. The government will be able to extend that deadline to 23 June 2026 (the tenth anniversary of the Brexit referendum) but can’t further extend it.
Repealing the principle of supremacy of EU law by the end of 2023. Currently, any EU decision reached before 1 January 2021 is binding on UK courts unless the government departs from it. However, this bill will subjugate all EU law in favour of UK law by default.
Repealing directly effective EU law rights and obligations in UK law by the end of 2023; and
Establishing a new priority rule requiring retained direct EU legislation to be interpreted and applied consistently with domestic legislation.”
She discussed this further at our clubhouse Planning Law Unplanned session last week on the Growth Plan, which Sam Stafford has now trimmed neatly into a 50 Shades of Planning podcast:
You will remember that the European Union Withdrawal Act 2018 had the effect of retaining, post Brexit, EU-derived domestic legislation such as the regulations in relation to environmental impact assessment, strategic environmental impact and conservation of habitats, leaving it to Parliament in due course to determine the extent to which the legislation should subsequently be repealed or amended.
”The REUL [retained EU-derived law] framework established by EUWA, however, was not intended to be maintained indefinitely on the UK statute book and now the Government is in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens.”
The Bill now places a firm deadline on that process:
“The Retained EU Law (Revocation and Reform) Bill facilitates the amendment, repeal and replacement of REUL by the end of 2023, and assimilates REUL remaining in force after that date by removing the special EU law features attached to it.”
The end of 2023 deadline can only be extended, to 23 June 2026 “should a lack of parliamentary time, or external factors, hinder progress towards reform of retained EU law prior to the 2023 sunset date.”
Is this of concern?
In short, yes of course. It may be said that the Government is committed to a principle of non-regression from current environmental standards, but given the current political pinball and the lack of relevant ministers with any real experience of the sheer complexity and nuances of what they are dealing with, frankly anything is possible. Campaign groups are certainly on edge: Brexit freedoms bill’ could abolish all pesticide protections, campaigners say (Guardian, 29 September 2022).
To an extent, at a high level, the principle of non-regression is built into the trade and co-operation agreement between the UK and EU which was signed on 30 December 2020 and came into force on 1 May 2021. The UK gave various, at least theoretically, binding commitments in the agreement as to non-regression from environmental levels of protection, which I describe in my 27 December 2020 blog post Brexit & Planning: An Update.
There are also generalised commitments within the Environment Act 2021 (which of course Parliament is always of course at liberty to amend or repeal as it chooses). The Government consulted in May 2022 in relation to its draft environmental principles statement. The statement has not yet been finalised and there is not yet any duty upon ministers to take it into account in their policy making. This may not be until summer 2023 at the earliest! The Office for Environmental Protection (a body established pursuant to the 2021 Act) has criticised the statement for “a relatively limited degree of ambition”. The OEP has similarly criticised as unambitious the Government’s draft environmental targets, also consulted upon pursuant to the 2021 Act.
As against these inchoate commitments to environmental standards, what is going to give in the face of a Government which, according to its Growth Plan, will be “disapplying legacy EU red tape where appropriate” in the investment zones it is proposing, and which proposes a Planning and Infrastructure Bill which will be:
“reducing the burden of environmental assessments
reducing bureaucracy in the consultation process
reforming habitats and species regulations”?
Genuine improvements to the processes are certainly possible. But do we trust the Government to strike an appropriate balance, hurtling towards a self-imposed December 2023 deadline and (at the latest) 2024 general election? In the coming year, most of our environmental legislation, and planning legislation to the extent that it is intertwined, will need to be reviewed, line by line, and, given that most of it is in the form of secondary legislation (and the sheer lack of time – after all the REULRR Bill covers all EU derived legislation!), there will be relatively limited Parliamentary scrutiny of that process. Even with the best of intentions, how is this timescale even going to be possible if we are to avoid a complete bodge-up? We have been treading (often polluted) water for so long and we still have no sense whatsoever of what the long trumpeted “outcomes focused” approach will look like in practice – eg see my 2 April 2022 blog post Is the Nature Recovery Green Paper The Answer? (& If So What Was The Question?)
On a slightly different, although possibly related, note….
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.
Wouldn’t it be good if Government plans were proper plans, subject to detailed assessment of their environmental effects, including formal assessment of reasonable alternatives and with the requirement for further assessment of material changes? But we lost that argument a long time ago, in R (HS2 Action Alliance) v Secretary of State for Transport (Supreme Court, 22 January 2014). The Supreme Court held that the Government’s January 2012 white paper “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” was not subject to any requirement for strategic environmental assessment as it was not a plan that “set the framework” for subsequent decision making.
“DNS is an elaborate description of the HS2 project, including the thinking behind it and the government’s reasons for rejecting alternatives. However, it does not constrain the decision-making process of the authority responsible, which is Parliament. Formally, and in reality, Parliament is autonomous, and not bound by any “criteria” contained in previous Government statements.”
So we were to take it all with a pinch of salt, including images such as this, showing the proposed “Y” route, to Manchester (and ultimately Glasgow) and Leeds (and ultimately Edinburgh via Newcastle):
Department for Transport, January 2012
Bear all this in mind when you read the Department for Transport’s Integrated Rail Plan for the North and Midlands published on on 18 November 2021. The plan “confirms” £54bn of spending on rail and local transport in the Midlands and North in addition to the £42bn already included for HS2 Phases 1 and 2a between London, the West Midlands and Crewe and has these images showing the journey time savings proposed:
What an opportunity to make good promises as to Levelling Up and Building Back Better.
The accompanying press statement summarises the proposals as follows:
“It is a £96 billion plan that outlines how major rail projects, including HS2 Phase 2b, Northern Powerhouse Rail and Midlands Rail Hub, will be delivered sooner than previous plans so that communities, towns and cities across the North and Midlands are better connected with more frequent, reliable and greener services and faster journey times.
The plan confirms that the government will:
• build 3 new high-speed lines including:
• HS2 from Crewe to Manchester
• HS2 from the West Midlands to East Midlands Parkway, enabling HS2 trains to join existing lines to serve Nottingham and Derby city centres (unlike original plans)
• a new high-speed line between Warrington, Manchester and Yorkshire, as part of Northern Powerhouse Rail
• electrify and/or upgrade 3 existing main lines including:
• the Transpennine Main Line between Manchester, Leeds and York
• the Midland Main Line between London St Pancras, the East Midlands, and Sheffield
• upgrading and improving line speeds on the East Coast Main Line
The plan also confirms that the government will progress options to complete the Midlands Rail Hub and spend £100 million to look at how best to take HS2 trains to Leeds, including assessing capacity at Leeds station and starting work on the West Yorkshire mass transit system.”
Piecing together the implications one sees that the previous commitment to build HS2 to Leeds in accordance with that 2012 plan has now become simply an extension to East Midlands parkway with HS2 trains then able to go on existing lines to Nottingham and Derby. The long anticipated “Y” becomes a “\”. As recently as 28 May 2021, New Civil Engineer had reported the Transport Secretary saying exactly the opposite: DfT commits to HS2 eastern leg after months of uncertainty.
There is much else to unpack. Those maps stress journey time reductions (which is of course not the only factor at all in securing an improved rail network) but so much is down to the detail: routes, specifications, delivery timescales and of course (HS2 to Leeds being a perfect example) the risk of elements subsequently simply being lopped off. Any supporting assessment work is simply unavailable (see my opening comments).
As Jonathan identifies, Yorkshire is potentially the biggest loser, with also a retreat from the proposals for Northern Powerhouse Rail, a new-build high speed line between Leeds and Manchester. The regional press had a field day:
West Yorkshire Mayor Tracy Brabin has written to Grant Shapps setting out the various failings of the proposals, saying that she and other West Yorkshire leaders “are angry and frustrated by the promises that have been seemingly broken. Our communities feel betrayed”. (26 November 2021).
The reconsideration (not yet a final scrapping) of HS2 between the East Midlands and Leeds brings little relief incidentally to those whose homes and businesses have long been blighted – safeguarding of the route will remain whilst further analysis is done.
Manchester of course still gets HS2, but with proposals for a terminus station there, with an above ground, rather than tunnelled, route – long a cause for concern on the part of Andy Burnham: Government planning ‘to put HS2 on stilts through Manchester’ (Guardian, 19 November 2021). Fat chance incidentally of any extension of HS2 to Scotland any more it would appear. The Transport Secretary hardly oozes sympathy in his reactions to Burnham’s concerns:
“If we spend £6bn or £7bn building the station underground at Manchester, we will take away from Liverpool, Leeds, Hull or some of the other places that are calling for money … Manchester is a principal beneficiary of this entire programme and we wish his constituents well in their new journey times.”
The integrated rail plan and what it does or doesn’t do for levelling up is going to be the topic for this week’s clubhouse Planning Law Unplanned session. Guest speakers cover all the bases: from Birmingham the aforementioned Jonathan Stott, from Manchester Urbed’s Vicky Payne, from Leeds barrister Stephanie Hall and from London my Town partner Raj Gupta. Join us via this link.
Nine months on from that planning white paper, we have seen no external signs of progress.
All eyes on the Queen’s Speech on 11 May 2021. Was there to be a narrowing down of previous options; a reflection on the consultation process; a programme set out of further work to be carried out ahead of the proposed Planning Bill, perhaps some new thinking following longer reflection?
“Laws to modernise the planning system, so that more homes can be built, will be brought forward…”
Turning to the background notes, there is literally nothing in the section on the proposed Planning Bill could not have been written back at the time of the white paper in August 2020 or that gives any indication as to ministers’ current thinking.
“The purpose of the Bill is to:
● Create a simpler, faster and more modern planning system to replace the currentone that dates back to 1947, and ensuring we no longer remain tied to procedures designed for the last century.
● Ensure homes and infrastructure – like schools and hospitals – can be deliveredmore quickly across England.
● Transform our planning system from a slow document-based one to a more efficient and easier to use digital and map-based service, allowing more active public engagement in the development of their local area.
● Help deliver vital infrastructure whilst helping to protect and enhance the environment by introducing quicker, simpler frameworks for funding infrastructure and assessing environmental impacts and opportunities.
The main benefits of the Bill would be:
● Providing more certainty for communities and developers, particularly smaller developers, about what is permitted where, through clear land allocations in local plans and stronger rules on design.
● Simpler, faster procedures for producing local development plans, approving major schemes, assessing environmental impacts and negotiating affordable housing and infrastructure contributions from development.
Establishing a framework which focuses on positive outcomes, such as environmental opportunities and better designed places.
● Digitising a system to make it more visual and easier for local people to meaningfully engage with.
The main elements of the Bill are:
● Changing local plans so that they provide more certainty over the type, scale and design of development permitted on different categories of land.
● Significantly decrease the time it takes for developments to go through the planning system.
● Replacing the existing systems for funding affordable housing and infrastructure from development with a new more predictable and more transparent levy.
● Using post-Brexit freedoms to simplify and enhance the framework for environmental assessments for developments.
● Reforming the framework for locally led development corporations to ensure local areas have access to appropriate delivery vehicles to support growth and regeneration.
Territorial extent and application
● The Bill will extend to the whole of the UK, however the majority of provisions will apply to England.”
In my view there can only be two possible reasons for this “no news” approach:
1. The Government may not yet have reached the necessary decisions – for instance as to how many zoning categories there will be, whether all land will be zoned or just parts of areas; or how this Infrastructure Levy will work. Quite possible. But come on! Nine months, and nothing?
2. Alternatively, the Government may not yet ready to take the political flak from its own that any specific proposals will attract. Despite the lack of any new information the reaction was surprisingly hostile, and even amongst the development industry I only hear at best muted, hedged and qualified support for elements of the white paper: are many politicians or business leaders prepared to be the cheer-leaders for these changes when, inevitably, the going gets politically tough? This will need a plan.
The only “new” element that caught my eye was that the long-flagged proposal to reform environmental assessment processes will now be within the Bill. It is another area where an announcement is overdue. Environment minister George Eustice indicated in his 20 July 2020 speech:
“Later this autumn we will be launching a new consultation on changing our approach to environmental assessment and mitigation in the planning system.”
The consultation never happened. Whether the legislation will indeed not only simplify but “enhance the EU derived framework of environmental assessments for developments” partly depends on what happens with a separate proposal within the forthcoming Judicial Review Bill:
“Giving the courts the power to suspend quashing orders in Judicial Review cases, so as to allow defects to be remedied. This will enable the courts to have more flexibility in Judicial Review cases. This may help ensure that, for example, a large infrastructure project is not delayed because an impact assessment has not been properly done”
Steve Quartermain and Lord Matthew Taylor have written about what the Government could now be doing to deliver on many of the objectives of the white paper, without legislation, in their article Government’s Planning White Paper is a slow road to the future (The Independent, 24 March 2021) and I have written about the areas where planning law reform is genuinely needed (but overlooked in the white paper) in my article Please sir, please can we have more planning legislation? (Estates Gazette, 21 November 2020).
I hope we are not now faced with a Bill that is either a fait accompli, given the various areas which genuinely need a great deal more work and engagement, or (as likely) an empty legislative shell, leaving the difficult work for secondary legislation in due course.
Incidentally, as a topical reminder that how the system is operated is as important as how is how it is structured, in the same week as the traditional parading of the Government’s forthcoming legislative programme, we have seen yet another example of the delays to the system that are caused when the Government intervenes in relation to planning applications: the ministerial decision on 13 May 2021 to approve the Whitechapel Bell Foundry application called in on 22 January 2020. Almost 16 months’ unnecessary delay, not to mention much unnecessary cost. Never mind new laws: how much could be achieved by the Secretary of State simply deciding not to call in applications or recover appeals!
But I will leave more detailed commentary on that decision, and on the Secretary of State’s enigmatic subsequent statement on twitter this afternoon, until next week’s thrilling blog post.
Simon Ricketts, 15 May 2021
Personal views, et cetera
This Tuesday we held a #PlanningLawUnplanned Queen’s Speech Clubhouse session. If you attended I hope you found it useful. This Tuesday we’re going to run an essential session about the Clubhouse app itself and how to get the most out of it. All will become clear! Do join us (iphone invitation here if you are not yet a member).
This post collects together in one place some of the recent planning, environmental and compulsory purchase litigation in relation to the High Speed Two rail project.
R (Keir) v Natural England (16 April 2021, Lang J; further hearing before Holgate J, 23 April 2021, judgment reserved)
This is the interim injunction granted by Lang J preventing HS2 and its contractors from varying out works at Jones’ Hill Wood, Buckinghamshire, until either the disposal of the claim or a further order.
The claim itself has Natural England as the defendant and seeks to challenge its grant of a licence under the Conservation of Habitats Regulations 2017 in relation to works that may disturb a protected species of bat.
The question as to whether the injunction should be maintained came back to court yesterday, 23 April, before Holgate J, as well as whether permission should be granted in the claim itself, and he has reserved judgment until 2pm on 26 April.
Secretary of State for Transport v Curzon Park Limited (Court of Appeal hearing, 21 and 22 April 2021, judgment reserved)
This was an appeal by the Secretary of State for Transport against a ruling by the Upper Tribunal on 23 January 2020. My Town Legal colleagues Raj Gupta and Paul Arnett have been acting for the first respondent, landowner Curzon Park Limited, instructing James Pereira QC and Caroline Daly. Thank you Paul for this summary:
The case concerns certificates of appropriate alternative development (‘CAADs’) under the Land Compensation Act 1961. A CAAD is a means of applying to the local planning authority to seek a determination as to what the land could have been used for if the CPO scheme did not exist. Its purpose it to identify every description of development for which planning permission could reasonably have been expected to be granted on the valuation date if the land had not been compulsorily purchased. Importantly, subject to a right of appeal, the grant of a CAAD conclusively establishes that the development is what is known as ‘appropriate alternative development’. This is significant as:
• When compensation is assessed it must be assumed that planning permission for that development(s) in the CAAD either was in force at the valuation date or would with certainty be in force at some future date and
• Following reforms in the Localism Act 2001, where there is, at the valuation date, a reasonable expectation of a particular planning permission being granted (disregarding the CPO scheme and CPO) contained in a CAAD it is assumed that the planning permission is in force which converts the reasonable expectation into a certainty.
There are four adjoining sites, each compulsorily acquired by HS2 for the purposes of constructing the Curzon Street HS2 station terminus at Cuzon Street Birmingham – four different landowners and four different valuation dates (i.e. vesting dates under the GVD process). Each landowner applied for a CAAD for mixed use development including purpose-build student accommodation (PBSA). In the real world, the cumulative effects of the proposed adjoining developments (e.g. including but not limited to the proposed quantum and need for PBSA in light of a PBSA need in the local plan) would have been a material planning consideration. However, Birmingham City Council considered each CAAD application in isolation. The Secretary of State argued that they should have considered the other CAAD applications as notional planning applications and, therefore, as material considerations which would have been very likely to result in CAADs issued for smaller scale mixed-used development being issued leading to a lower total compensation award and bill for HS2. The preliminary legal issue to be determined by the Upper Tribunal and now the Court of Appeal is:
‘Whether, and if so how, in determining an application for a certificate of appropriate alternative development under section 17 LCA 1961 (CAAD) the decision-maker in determining the development for which planning permission could reasonably have been expected to be granted for the purposes of section 14 LCA 1961 may take into account the development of other land where such development is proposed as appropriate alternative development in other CAAD applications made or determined arising from the compulsory acquisition of land for the same underlying scheme’.
The Upper Tribunal had rejected the landowners’ argument that the scheme cancellation assumption (i.e. disregarding the CPO scheme) under the Land Compensation Act 1961 required CAAD applications on other sites to be disregarded. However, critically, the Tribunal agreed with the landowners’ that CAAD applications were not a material planning consideration and that there was no statutory basis for treating them as notional planning applications as the Secretary of State has argued. The Tribunal also disagreed with the Secretary of State that the landowners’ interpretation of the statutory scheme would lead to excessive compensation pointing out that the landowners’ ability to develop their own land in their own interests was taken away when their land was safeguarded for HS2 and from November 2013 when the HS2 scheme was launched until 2018 when the land interests were finally acquired by HS2 any planning permissions for these sites would have been determined in the shadow of the HS2 scheme and safeguarding of the land. The Secretary of State appealed the Upper Tribunal decision and the Court of Appeal granted permission to appeal in July 2020 noting that the appeal raises an important point on the principle of equivalence (i.e. the principle underpinning the CPO Compensation Code) that a landowner should be no worse off but no better off in financial terms after the acquisition than they were before) which may have widespread consequences for the cost of major infrastructure projects.
A judgment from the Court of Appeal (Lewison LJ, Lindblom LJ and Moylan LJ) is expected in the next month or so.
This was an appeal against the refusal by HS2 Limited to disclose, pursuant to the Environmental Information Regulations 2004, information as to the potential effect of its works on chalk aquifers in the Colne Valley. The information requested was as follows:
“What risk assessments have taken place, of the potential increased risk to controlled waters as a result of imminent works by HS2 contractors along the Newyears Green bourne and surrounding wetland?
Are any of the risk assessments independent from the developers (HS2) and where are the risk assessment (sic) accessible to the public?”
By the time of the hearing before the First Tier Tribunal, three reports had been disclosed, redacted. The Tribunal summarised the issues before it as follows:
“(1) whether HS2 correctly identified the three reports as being the environmental information which Ms Green requested and whether there was further material held which came within the request;
(2) whether at the time of Ms Green’s request the three reports were “still in the course of completion” or comprised “unfinished documents” and, if so, whether the public interest in maintaining the regulation 12(4)(d) exception outweighed that in disclosure;
(3) whether disclosure of those parts of the three reports which have been redacted in reliance on regulation 12(5)(a) would have adversely affected “public safety” and, if so, whether the public interest in maintaining the regulation 12(5)(a) exception outweighed the public interest in their disclosure.”
The Tribunal found, expressing its reasoning in strong terms, that the public interest in disclosure outweighed the public interest in maintaining any exemption.
“The reports in question in this case concern a major infrastructure project which gives rise to substantial and legitimate environmental concerns. They specifically relate to the risks of contamination to the drinking water supplied to up to 3.2 million people resulting from the construction of the HS2 line. This is clearly environmental information of a fundamental nature of great public interest.”
HS2 appeared to be concerned that “if the versions of the reports current in January 2019 were made public they “… could have been used to try and impact work undertaken in finalising the information”.
“It seems to us that such an approach almost entirely negates the possibility of the public having any input on the decision-making process in this kind of case, which goes against a large part of the reason for allowing public access to environmental information.
The suggestion that public officials concerned in making enquiries and freely discussing options to mitigate environmental problems might be discouraged or undermined by early disclosure of their work seems to us rather fanciful and was not supported by any kind of evidence; the case is not comparable in our view to that of senior officials indulging in “blue sky” thinking about policy options. We accept that the material is “highly technical” but we cannot see why a lack of understanding on the part of the public would have any negative impact on HS2’s work; if a member of the public or a pressure group wanted to contribute to the debate in a way that was likely to have any effect on the decision-making process they would no doubt have to engage the services of someone like Dr Talbot, who would be able to enter the debate in a well- informed and helpful way.”
“HS2’s second main point, that the Environment Agency will be approving and supervising everything, does not seem to us of great weight. Of course the Environment Agency is there to act in the public interest in relation to the environment but its involvement cannot be any kind of answer to the need for public knowledge of and involvement in environmental decisions. The EA is itself fallible and should be open to scrutiny. If the public could simply entrust everything to it there would be no need for the EIR.
HS2’s third main point is that if inchoate information is released it could be misleading and they would incur unnecessary expense correcting false impressions. We were not presented with any specific evidence or examples to illustrate how this problem might have been encountered in practice. It does not seem to us a very compelling point.”
This was an interim ruling in an application for judicial review, made only nine days previously, of the decision by HS2 Limited to extract the protesters that were occupying the tunnel under Euston Square Gardens and alleging a failure to safely manage Euston Square Gardens in a manner compatible with HS2 Limited’s obligations under the European Convention of Human Rights. It followed a rejection of an application by Mr Maxey for an interim injunction and followed an order made requiring him to cease any further tunnelling activity, to provide certain categories of information to HS2 Limited or others and to leave the tunnel safely, with which he had not complied.
At the hearing, Mr Maxey was renewing his “application for orders requiring (a) the cessation of operations to extract the protesters from the tunnel and (b) to implement an exclusion zone. In addition, the Claimant has expanded the interest relief he seeks to include provision forthwith by the Defendant of (a) oxygen monitoring equipment; (b) a hard-wired communication method; (c) food and drinking water for the Claimant and the protesters; and (d) to make arrangements for the removal of human waste from the tunnel.” He was also seeking to overturn the orders against him.
The judge rejected Mr Maxey’s arguments:
“While I accept that the Defendant is (or at the very least there is a good argument that the Defendant is) currently under a duty to take all reasonable steps to protect those in the tunnel under the site (including the Claimant) from death or serious injury, on the evidence before me there is no realistic prospect of the Court finding that the Defendant is breaching its duty. In my judgment, the claim for interim relief does not meet the first test.
That suffices to dispose of the interim relief application. But if it were necessary to consider the balance of convenience, I would have to bear in mind the strong public interest in permitting a public authority’s decision (here a decision to proceed with the operation and a decision as to the necessary safeguards) to remain in force pending a final hearing of the application for judicial review, so the party applying for interim relief must make out a strong case for the grant of interim relief. The Claimant has not come close to establishing a strong enough case to justify the Court stopping the operations to remove those who are in the tunnel, given the compelling evidence as to how dangerous it is for them to remain there.”
I summarised this case in my 9 January 2021 blog post Judges & Climate Change. It was Chris Packham’s failed challenge to the Government’s decision to continue with the HS2 project following the review carried out by Douglas Oakervee, the grounds considered by the Court of Appeal being “whether the Government erred in law by misunderstanding or ignoring local environmental concerns and failing to examine the environmental effects of HS2 as it ought to have done” and “whether the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050, in the light of the Government’s obligations under the Paris Agreement and the Climate Change Act 2008”.
This case was heard consecutively with the Packham appeal. It related to Hillingdon’s challenge to the Secretary of State’s decision to allow (against his inspector’s recommendations) an appeal against Hillingdon’s refusal to grant HS2 Limited’s application for approval, under the Act authorising the relevant stage of the HS2 project, of plans and specifications for proposed works associated with the creation of the Colne Valley Viaduct South Embankment wetland habitat ecological mitigation. HS2 Limited had refused to provide Hillingdon with information so that an assessment could be made as to the effect of the proposed works on archaeological remains, HS2 Limited’s position being that it was “under no obligation to furnish such information and evidence. It says that this is because it will, in due course, conduct relevant investigations itself into the potential impact of the development upon any archaeological remains and take all necessary mitigation and modification steps. HS2 Ltd says that it will do this under a guidance document which forms part of its contract with the Secretary of State for Transport which sets out its obligations as the nominated undertaker for the HS2 Project.”
Lang J had upheld the Secretary of State’s decision but this was overturned by the Court of Appeal:
“The key to this case lies in a careful reading of Schedule 17 and the powers and obligations it imposes upon local authorities and upon HS2 Ltd. In our judgment, the duty to perform an assessment of impact, and possible mitigation and modification measures under Schedule 17, has been imposed by Parliament squarely and exclusively upon the local authority. It cannot be circumvented by the contractor taking it upon itself to conduct some non-statutory investigation into impact. We also conclude that the authority is under no duty to process a request for approval from HS2 Ltd unless it is accompanied by evidence and information adequate and sufficient to enable the authority to perform its statutory duty.”
[Subsequent note: Please also see London Borough of Hillingdon v Secretary of State for Transport (Ouseley J, 13 April 2021), “Hillingdon 2” where on the facts Ouseley J reached a different conclusion, holding that an inspector had not acted unlawfully in determining an appeal without information sought by the council from HS2 Limited as to the lorry routes to be used by construction lorries to and from the HS2 construction sites within its area].
This was a judicial review claim brought by the owner of a listed Georgian building near Regents Park. The property was separated by a large retaining wall, built in 1901, from the perimeter of the existing railway. “It rests approximately 17 metres from the front of the property and the drop from the level of the road to the railway below is approximately 10 metres. Unsurprisingly, given that the substrate is London clay, the wall has suffered periodic movement and shows signs of cracking. The Claimant’s expert says that it is “metastable”.”
The claimant was concerned as to the engineering solution arrived at for that section of the route, which was known as the Three Tunnels design. “This judicial review challenge is directed to the safety of the Three Tunnels design in the specific context of the outbound tunnel travelling so close to the base of the retaining wall. It is contended on the back of expert engineering evidence that this aspect of the design has engendered an engineering challenge which is insurmountable: in the result, the design is inherently dangerous. The risk is of catastrophic collapse of the retaining wall, either during the tunnelling works or subsequently, which would if it arose cause at the very least serious damage to the Claimant’s property. Consequently, the Claimant asserts a breach of section 6 of the Human Rights Act 1998 because her rights under Article 8 and A1P1 of the Convention have been violated.”
The judge boiled the questions down to the following:
“has the Claimant demonstrated that she is directly and seriously affected by the implementation of the Three Tunnels design, given the risk of catastrophic collapse identified by Mr Elliff? In my view, that question sub-divides into the following:
(1) should I conclude on all the evidence that the Three Tunnels design is so inherently flawed in the vicinity of the retaining wall that no engineering solution could be found to construct it safely? and
(2) have the Defendants already committed themselves to implement the Three Tunnels design regardless of any further work to be undertaken under Stage 2?
After detailed consideration of expert engineering expert on both sides, the judge rejected the claim.
This was a compulsory purchase case, about whether an owner of four units on the Saltley Business Park in Birmingham, faced with compulsory purchase of one of them, had served counter-notices in time such as to trigger its potential ability to require acquisition of its interests in all four buildings. The court ruled that it had not.
It certainly seems an age since R (HS2 Action Alliance) v Secretary of State for Transport (Supreme Court, 22 January 2014) where in a previous law firm life I acted for the claimant, instructing David Elvin QC and Charlie Banner (now QC). The case concerned whether the publication by the Government of its command paper, “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” engaged strategic environmental assessment requirements and whether the hybrid bill procedure would comply with the requirements of the Environmental Impact Assessment Directive (for more on the HS2 hybrid bill procedure, see my 30 July 2016 blog post HS2: The Very Select Committeehttps://simonicity.com/2016/07/30/hs2-the-very-select-committee/). The loss still grates. And in consequence of that ruling…
There’s a slow, slow train comin’.
Simon Ricketts, 24 April 2021
Personal views, et cetera
Thank you to my Town Legal colleague Lida Nguyen for collating a number of these cases.
Our clubhouse Planning Law, Unplanned session at 6pm on 27 April will follow a similar theme, so if you are interested in issues relating to HS2 or in wider questions as to judicial review, interim injunctions, access to information or compulsory purchase compensation, do join us, whether to contribute to the discussion or just listen in. As always, contact me if you would like an invitation to the clubhouse app (which is still iphone only I’m afraid).
The accompanying statement indicates that the Government’s ambition for the Arc is expressed in cautiously generic language:
“There is an opportunity, recognised by government and local partners, to build a better economic, social and environmental future for the area. With high-quality, well-connected and sustainable communities making the Arc an even more beautiful place to live, work and visit.”
“To achieve this ambition, the government alongside local partners, is going to:
• Develop a Spatial Framework for the Arc; a long-term regional plan to help coordinate the infrastructure, environment and new developments in the area. We are committed to working with local communities throughout so we can create beautiful and sustainable places for residents and workers to enjoy.
• Explore the creation of an Arc Growth Body; that would be a clear economic leadership voice for the Arc, championing its talent and assets internationally, supporting businesses, and fostering innovation.”
The documents say this about the likely nature and governance of the Arc Growth Body and of its likely delivery structure:
“ To realise the full opportunities – and overcome the challenges – will require coordination of planning functions across the region. Local councils cannot do this on their own because of the level of coordination needed across the area, and because they do not have all the levers needed to develop a genuinely integrated plan. Government needs to play a supporting role to bring together a strategic approach at the Arc level to support better planning and ultimately better outcomes for the economy, environment and communities.”
“Over the next two and a half years, a specialist team in the Ministry of Housing, Communities and Local Government will work with communities and local partners to develop a robust, evidence-based Spatial Framework. “
“The nature and content of the Spatial Framework will be subject to the outcome of both detailed consultation and sustainability appraisal.”
“We will seek to implement the Spatial Framework as spatially specific national planning policy. Local planning authorities preparing local development documents (including local plans) will have to have regard to the Spatial Framework, as they do with other national policies and guidance.”
“We have […] made a commitment to examine the case for development corporations, linked to the new transport hubs around East West Rail stations.”
“Specifically, the Spatial Framework will:
• provide an assessment of existing employment land, planned growth and anticipated future need
• set policies to support local planning authorities in allocating these as Strategic Business Zones or Strategic Industrial Locations, as appropriate
• set policies to support different land uses for different sectors and sizes of business”
“The Spatial Framework will also outline policies to enable sustainable, transport-led development. This will include policies to enable:
• new settlements to come forward at the scale and speed needed
• new development to support habitat recovery, delivery of Local Nature Recovery Strategies, and provision of good-quality green spacewithin schemes
• brownfield redevelopment and densification, and expansion of existing settlements, in sustainable locations or locations that can be made more sustainable by enhanced access to sustainable transport modes
• housing needs to be met in full, including delivery of much-needed affordable housing”
2.128 The government has designated the corridor of land connecting Oxford, Milton Keynes, Bedford and Cambridge (the OxCam Arc) as a key economic priority. Earlier this year, the government announced the East West Rail Company’s preferred route for the new line between Bedford and Cambridge. The government will also, subject to planning consents, build a new rail station at Cambridge South, improving connectivity to the world-leading research facilities of the Cambridge Biomedical Campus – the largest cluster of medical and life sciences research in Europe.
2.129 The Budget announces plans to develop, with local partners, a long-term Spatial Framework to support strategic planning in the OxCam Arc. This will support the area’s future economic success and the delivery of the new homes required by this growth up to 2050 and beyond. The government is also going to examine and develop the case for up to four new Development Corporations in the OxCam Arc at Bedford, St Neots/Sandy, Cambourne and Cambridge, which includes plans to explore the case for a New Town at Cambridge, to accelerate new housing and infrastructure development.”
Indeed, earlier this month, MHCLG started a tender process for a “planning/engagement specialist to support the Government in developing an approach to engaging local audiences (both stakeholder groups and the public) throughout the process of developing up to four new or expanded settlements in the Oxford-Cambridge Arc (OxCam Arc) aligned with new stations along the East West Rail (EWR) Central Section. The specific locations under consideration are Bedford, St Neots/Tempsford, Cambourne and Cambridge.”
“3.5 The objectives of this commission are […] to:
3.5.1 develop an evidence-based engagement strategy for the programme that sets out the phases and methods of activity until delivery vehicles have been established at the chosen locations (~mid 2022);
3.5.2 clearly set out a route for the programme to meet any statutory requirements for consultation across the area and specifically each of the four potential development sites Bedford, St Neots/Tempsford, Cambourne and Cambridge; and
3.5.3 secure local buy-in for the strategy by working with local partners to build on established channels of engagement and recommending methods to engage hard to reach groups.”
There are so many interesting elements to what is proposed:
⁃ The Government, through the Arc Growth Body, is going to prepare the framework itself and take it through to adoption. Who is going to lead the body and what will be its make-up?
⁃ It will have equivalent status to the NPPF in relation to plan making and decision making.
⁃ The Government has accepted that there will be stages of consultation and the sustainability appraisal (opening itself up to the rigours of the legal requirements in relation both to consultation and strategic environmental assessment) but it appears that there will be no independent examination of the draft framework.
⁃ Success is inevitably going to be dependent on securing a sufficient level of support or acceptance from local politicians and communities, meaning that it is important that the 2019 joint declaration holds firm, “entered into between the Government, local authorities across the Oxford to Cambridge Arc, Cambridgeshire and Peterborough Combined Authority, the Arc’s four local enterprise partnerships (LEPs), and England’s Economic Heartland.”
⁃ We can expect to see up to four development corporations.
⁃ the document references the Government’s Planning For The Future proposals and I am sure we will see the process used in part as a showcase as to its proposed approach to plan making, for instance:
“3.12 First, we will use data and digital technology to support our policy-making. We intend to support development of an open source, digital platform for data and evidence to support collaboration between government, businesses, local councils and communities in decision-making. We will work with local partners to create an accessible digital platform for economic, planning and environmental data, and easy-to-use tools so that people – including the public and businesses – can engage meaningfully in the process.
3.13 Second, it means using digital engagement processes to make it easy for people to raise their views about proposals in the spatial framework, including on smartphones.
3.14 Third, it means the spatial framework will be visual and map-based, standardised, and based on the latest digital technology, so that it is easy to access and understand.”
Neil Young and Crazy Horse once released a terrific, if noisy album: Arc-Weld. Civil servants’ welding skills will certainly be needed to build the structure so far outlined, at the pace identified.
This post focuses on the relevance of the provisions of the UK-EU trade and cooperation agreement (“T&CA”) (provisional agreement subject to ratification, 25 December 2020) to the future of the English town and planning system.
The prime minister’s 24 December 2020 statement contained the following passages of particular note:
“We will be able to set our own standards, to innovate in the way that we want, to originate new frameworks for the sectors in which this country leads the world, from biosciences to financial services, artificial intelligence and beyond.
We will be able to decide how and where we are going to stimulate new jobs and new hope.
With freeports and new green industrial zones.
We will be able to cherish our landscape and our environment in the way we choose.”
I will leave discussion as to “freeports and new green industrial zones” for another day, interesting as it is to see these references in big picture soundbites. Instead, I want to consider whether, in relation to the environment, we will indeed be able to “set our own standards” and “to cherish our landscape and our environment in the way we choose”.
In that time of pre- planning white paper speculation I noted that reform to the planning system was likely to be predicated on reform to environmental law on environmental impact assessment, strategic environmental assessment and conservation of habitats and species:
“…any move towards a more zoning-based approach, where the development consenting process is simplified by setting detailed parameters at a plan-making or rule-setting level, will face complications due to the need for strategic environment assessment of any plan or programme required by legislative, regulatory or administrative provisions that sets the framework for subsequent development consents and which is likely to have significant environmental effects – assessment which has become highly prescriptive, particularly in terms of the need to consider, in detail, reasonable alternatives to the selected policy option. Projects which are likely to give rise to significant effects on the environment require environmental impact assessment. It must be shown that plans or projects will not adversely affect defined species of animals or the integrity of defined habitats – with rigorous processes and criteria. Politicians will be bumping up against EU-derived environmental law, and those environmental principles (not yet finalised), at every turn.”
I noted that it would be open to the Government to make changes to EU-derived environmental law from 1 January 2021. Of course “the Government would not have a completely free hand in changing or removing these processes. We are subject to wider international duties, under, for instance the European Convention on Human Rights, the Aarhus Convention, the Paris Agreement (climate), the Espoo Convention (environmental assessment) and the Ramsar Convention (habitats). Trade deals in relation to the export of our goods or services, with the EU and/or other countries and trading blocs, may also require specific commitments.”
Now we have seen the detail of the T&CA, we know what constraints the Government will be under. The main areas of interest start, as far as we are concerned, around page 203:
As for setting our “own standards”, see Article 7.2, on non-regression:
“2. A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period, including by failing to effectively enforce its environmental law or climate level of protection.
3. The Parties recognise that each Party retains the right to exercise reasonable discretion and to make bona fide decisions regarding the allocation of environmental enforcement resources with respect to other environmental law and climate policies determined to have higher priorities, provided that the exercise of that discretion, and those decisions, are not inconsistent with its obligations under this Chapter”
“Environmental levels of protection” means “the levels of protection provided overall in a Party’s law which have the purpose of protecting the environment, including the prevention of a danger to human life or health from environmental impacts, including in each of the following areas:
(a) industrial emissions;
(b) air emissions and air quality;
(c) nature and biodiversity conservation;
(d) waste management;
(e) the protection and preservation of the aquatic environment;
(f) the protection and preservation of the marine environment;
(g) the prevention, reduction and elimination of risks to human health or the environment arising from the production, use, release or disposal of chemical substances; or
(h) the management of impacts on the environment from agricultural or food production, notably through the use of antibiotics and decontaminants.”
“Climate level of protection” means “the level of protection with respect to emissions and removals of greenhouse gases and the phase-out of ozone depleting substances. With regard to greenhouse gases, this means:
(a) for the Union, the 40 % economy-wide 2030 target, including the Union’s system of carbon pricing;
(b) for the United Kingdom, the United Kingdom’s economy-wide share of this 2030 target, including the United Kingdom’s system of carbon pricing.”
Article 7.4, environmental and climate change principles:
“1. Taking into account the fact that the Union and the United Kingdom share a common biosphere in respect of cross-border pollution, each Party commits to respecting the internationally recognised environmental principles to which it has committed, such as in the Rio Declaration on Environment and Development, adopted at Rio de Janeiro on 14 June 1992 (the “1992 Rio Declaration on Environment and Development”) and in multilateral environmental agreements, including in the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992 (the “UNFCCC”) and the and the Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992 (the “Convention on Biological Diversity”), in particular:
(a) the principle that environmental protection should be integrated into the making of policies, including through impact assessments;
(b) the principle of preventative action to avert environmental damage;
(c) the precautionary approach referred to in Article 1.2(2) [Right to regulate, precautionary approach and scientific and technical information];
(d) the principle that environmental damage should as a priority be rectified at source; and
(e) the polluter pays principle.
2. The Parties reaffirm their respective commitments to procedures for evaluating the likely impact of a proposed activity on the environment, and where specified projects, plans and programmes are likely to have significant environmental, including health, effects, this includes an environmental impact assessment or a strategic environmental assessment, as appropriate.
3. These procedures shall comprise, where appropriate and in accordance with a Party’s laws, the determination of the scope of an environmental report and its preparation, the carrying out of public participation and consultations and the taking into account of the environmental report and the results of the public participation and consultations in the consented project, or adopted plan or programme.
4. For the purposes of this Chapter, insofar as targets are provided for in a Party’s environmental law in the areas listed in Article 7.1 [Definitions], they are included in a Party’s environmental levels of protection at the end of the transition period. These targets include those whose attainment is envisaged for a date that is subsequent to the end of the transition period. This paragraph shall also apply to ozone depleting substances.
5. The Parties shall continue to strive to increase their respective environmental levels of protection or their respective climate level of protection referred to in this Chapter.”
Article 7.5, enforcement:
“Party shall, in accordance with its law, ensure that:
(a) domestic authorities competent to enforce the relevant law with regard to environment and climate give due consideration to alleged violations of such law that come to their attention; those authorities shall have adequate and effective remedies available to them, including injunctive relief as well as proportionate and dissuasive sanctions, if appropriate; and
(b) national administrative or judicial proceedings are available to natural and legal persons with a sufficient interest to bring actions against violations of such law and to seek effective remedies, including injunctive relief, and that the proceedings are not prohibitively costly and are conducted in a fair, equitable and transparent way.”
Disputes between the EU and UK as to whether one party is in breach of these provisions (in a way which affects trade or investment) may be referred (by the EU or the UK alone, not by individuals) to a panel of experts, whose determination is not binding. Breaches can feed into negotiations as to rebalancing of the obligations as between the parties over time (the agreement is to be reviewed every five years and can indeed be terminated by either party on 12 months’ notice) or can lead to a party imposing tariffs (to be reviewed via arbitration). (Compliance with climate change targets in the Paris agreement is more tightly controlled, given Article COMPROV 5 on page 405, one of the limited number of “essential measures” in the agreement, breach of which can lead to suspension or termination of the agreement).
The Article 7 provisions provide some limited comfort as to non-regression from agreed minimum environmental principles, whilst allowing the parties latitude to achieve those principles by differing means. However, this in reality leaves us dependent on the EU crying foul if the UK is considered to be in breach (not particularly practical and ultimately not legally binding). No longer can we as individuals complain direct to the European Commission or litigate as to breaches in our domestic courts (or indeed request our domestic courts to refer issues to the European Court of Justice).
The UK Government intends to replace the role of the Commission, in receiving and and acting upon complaints, with a new quango, the Office For Environmental Protection. The establishment of the OEP is dependent upon the Environment Bill passing into law and for work then to be done in establishing a set of environmental principles and priorities to guide its work. The Bill hasn’t yet cleared its final Commons stages. In one sign of progress, there is now a potential chair for the organisation: Dame Glenys Stacey selected as preferred Chair for Office for Environmental Protection (DEFRA press statement, 9 December 2020). There is also a current appointment process for non-executive directors (closing date for applications: 12 January 2021). However, there is still going to be a lengthy period where there simply is no practical safety net in the event of regression by the UK government from minimum environmental principles.
As I said in my July blog post: “…if the Government is moving rapidly towards “comprehensive” reform of the planning system, it’s a fair question to ask: What changes are proposed by this Government to these EU-derived regimes from the end of this year?”
The proposals within the planning white paper are indeed dependent on a changed system for strategic environmental assessment and environmental impact assessment. Otherwise the proposed timescales for plan-making and decision-making would be unachievable, as would the idea for granting large development consents routinely by way of growth area allocations in local plans.
Environment minister George Eustice indicated that there would definitely be reform, in his 20 July 2020 speech on environmental recovery:
“Later this autumn we will be launching a new consultation on changing our approach to environmental assessment and mitigation in the planning system. If we can front-load ecological considerations in the planning development process, we can protect more of what is precious.
We can set out which habitats and species will always be off-limit, so everyone knows where they stand. And we can add to that list where we want better protection for species that are characteristic of our country and critical to our ecosystems that the EU has sometimes overlooked– things like water voles, red squirrels, adders and pine martens. We want everyone to be able to access an accurate, centralised body of data on species populations so that taking nature into account is the first, speedy step to an application.”
Did you miss the consultation? No, of course not. These promised announcements are like vapour trails. The government is no doubt drilling down to a greater level of detail as to its reforms to the planning system but there is silence as to what changes are intended to existing systems of environmental protection.
Eustice gave a few clues as to what the direction of change might be:
“Now EU environmental law always has good intentions but there are also negative consequences to attempting to legislate for these matters at a supranational level. It tends to lead to a culture of perpetual legal jeopardy where national governments can become reluctant to try new things or make new commitments for fear of irreversible and unpredictable legal risks. This in turn creates a culture where there are frankly too many lawyers and not enough scientists and too many reports but not enough action.
So, as we chart a new course for our approach to protecting the environment, we can retain the features that worked and change the features that didn’t. We should recognise that the environment and our ecosystems are a complex web of interactions that mankind will never fully understand let alone manage. We should re-balance the way we approach policy development with more focus on science and technical knowledge and less time fretting about legal risks of doing something new or innovative. We should have fewer reports that say nothing new – but more new ideas that we should actually try.
And we should be willing to try new approaches safe in the knowledge that we have the power to change things again if a policy idea fails. Our targets framework should give us a clear set of objectives to work to but to meet those targets our approach to policy development must be agile or iterative and must create the space for more experimentation and innovation.
If we are to protect species and habitats and also deliver biodiversity net gain, we need to properly understand the science to inform these crucial decisions. And we should ask ourselves whether the current processes are as effective or efficient as they could be.
Is there sufficient access to data and knowledge to know which species should be assessed? If we had better more up to date data about things such as flood risk, habitats, species, and air quality could we design plans for sustainable new projects and developments more effectively and efficiently than we do now? Do we have enough focus on improvements at a landscape scale? Do Local Authorities adopt a consistent approach to the screening process through Environmental Impact Assessment? Do they have the capability to engage over the lifetime of a project?”
I think we can all suggest areas for improvement, but it’s not easy to propose amended procedures that achieve the necessary objectives. Part of the effectiveness of say EIA or SEA has been down to its legal rigour. Where is the balance to be drawn? Personally, judging by the significant changes that the government is consulting upon in another area previously the domain of EU law – public procurement – I do expect to see some radical proposals, that we will all need to reflect upon.
Concluding thoughts:
⁃ It is obviously good news that we have an agreed form of T&CA, subject to ratification by Parliament shortly.
⁃ It is good news to see the high level environmental protections contained within it (and of course they do constrain, albeit to a sensible extent, our ability to “set our own standards”).
⁃ It is concerning to be entering a period from 1 January 2021 when we will have no practical legal protection against UK regression from the environmental principles which previously applied to the UK by way of EU directives to which it was previously a party.
⁃ It is concerning to see the slow progress of the Environment Bill, given the work that then has to be done before the proposed OEP is a functional entity.
⁃ It is concerning that we still do not have the promised consultation as to possible changes to EU-derived environmental law, which was due to be published in Autumn 2020.
It’s really important that any amended system of EIA, SEA and HRA works properly. There are undoubtedly improvements to be made to processes, but also pitfalls to avoid. At the moment the debate is still only at the “motherhood is good” stage.
We have arranged a joint webinar with Keating Chambers at 5.30 pm on 5 January 2021 to examine the practical issues and to be ready to feed in our thoughts. I hope you can join (from Keating) Charlie Banner QC and (from Town Legal) Steve Quartermain CBE, Duncan Field, Safiyah Islam and me – free registration here: https://us02web.zoom.us/webinar/register/WN_VCsYkhQcSzOm2uqDxN-w8A .
On 16 December 2020 the Government abruptly abandoned its proposed revised standard method for calculating local housing need, in the face of political and media pressure from those who saw the method increasing substantially the figure for their particular areas. I covered the consultation as to the proposed revised method in my 29 August 2020 blog post, asking whether we might see a fudged outcome.
So the Government has decided to stick to its previous 2017 method (just as much of an algorithm, equally “mutant”), one based on out of date household formation figures from 2014 (2014!), but with a heavy handed readjustment of the figures to ensure that they still add up to 300,000 homes (a number which itself has no empirical basis – but reflective of the extent of the, plain to see, housing crisis). The heavy handed-adjustment? To increase the relevant figure by 35% for England’s 20 largest towns and cities, including London.
Imagine if a local planning authority attempted to include housing numbers in its plan in such a way, without evidence! (Or indeed if it introduced a blanket “approve it all” policy equivalent to the effect of the new class E to C3 PD right!).
If anyone knows about planning and housing, it’s Chris Young QC. He had put forward constructive suggestions for improving the proposals given the unduly low numbers the draft revised method would have achieved for much of the north. His subsequent LinkedIn post was incandescent:
“- Confused about the “new” Standard Method?
– Baffled why it fails to address levelling up across the North?
– Mystified why in an economic crisis, Govt would focus on the largest cities where apartment prices are falling?
– Troubled by the urban focus, when overcrowded housing is a key factor for the UK having the highest Covid 19 death rate in Europe?
Well, here’s what just happened
Govt introduced Standard Method 1 in 2017 to make housing targets simpler. But it added up to less than its own 300,000 annual target, and collapsed housebuilding in the North
In August, Govt consulted on a revised version. But it contained a double affordability uplift which piled the numbers into the Shires, causing a Tory revolt
Then experts in this field came up with a more appropriate set of numbers focussing on achieving 300,000 and levelling up the North.
And then Ministers bottled it
They decided to leave the formula, which they know doesn’t work, the same. But add 35% to the major constrained cities nearly all of which are Labour controlled, pinning their hopes on a collapse in the office market and town centres and the use of PD rights
Housing policy in this country is not about housing people. Its now 100% about politics”
I’ve no problem with an urban focus, but what really is the point when those higher numbers will not be achieved, meaning an inevitable failure to achieve the overall target?
Let’s take a step back (watch out for the Christmas tree though).
The Government’s NPPF tells local planning authorities this:
“To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.” (paragraph 60).
The new standard method is incredibly important, both for this purpose, and because it will form the basis for the new plan-making system proposed in the white paper, where local planning authorities will have to plan, without deviation, for the numbers handed down to them (numbers which will be based on this standard method and then tweaked by government by way of an as yet undevised process).
To understand the detail what has now been introduced, and the justifications given, there are four relevant documents, all published on 16 December 2020:
The response document tries to downplay the role of the numbers – making them out not to be a “target” but a “starting point”:
“Many respondents to the consultation were concerned that the ‘targets’ provided by the standard method were not appropriate for individual local authority areas. Within the current planning system the standard method does not present a ‘target’ in plan-making, but instead provides a starting point for determining the level of need for the area, and it is only after consideration of this, alongside what constraints areas face, such as the Green Belt, and the land that is actually available for development, that the decision on how many homes should be planned for is made. It does not override other planning policies, including the protections set out in Paragraph 11b of the NPPF or our strong protections for the Green Belt. It is for local authorities to determine precisely how many homes to plan for and where those homes most appropriately located. In doing this they should take into account their local circumstances and constraints. In order to make this policy position as clear as possible, we will explore how we can make changes through future revisions to the National Planning Policy Framework, including whether a renaming of the policy could provide additional clarity.”
Weaselly words! Of course they are a target. This methodology can no longer be said to be a proper methodological assessment of local need based on demographics and household formation rates – if nothing else, the 35% uplift for the major towns and cities puts paid to that. The justification given for the uplift is a policy justification:
“”First, building in existing cities and urban centres ensures that new homes can maximise existing infrastructure such as public transport, schools, medical facilities and shops. Second, there is potentially a profound structural change working through the retail and commercial sector, and we should expect more opportunities for creative use of land in urban areas to emerge. Utilising this land allows us to give priority to the development of brownfield land, and thereby protect our green spaces. And third, our climate aspirations demand that we aim for a spatial pattern of development that reduces the need for unnecessary high-carbon travel.”
I quoted Chris Young earlier. For an equally brilliant, expert and authoritative analysis how about Lichfields? This is a superb post by Matthew Spry and Bethan Hayes Mangling the mutant: change to the standard method for local housing need on the day of the announcement, including indications as to what the new numbers will mean for the 20 largest towns and cities:
Courtesy of Lichfields
How quickly will the changes come into effect? The Government’s response document says this:
“From the date of publication of the amended planning practice guidance which implements the cities and urban centres uplift, authorities already at Regulation 19, will have six months to submit their plans to the Planning Inspectorate for examination, using the previous standard method. In recognition that some areas will be very close to publishing their Regulation 19 plan, these areas will be given three months from the publication date of the revised guidance to publish their Regulation 19 plan, as well as a further six months from the date they publish their Regulation 19 plan to submit their plan to the Planning Inspectorate for examination, to benefit from the transition period.
The standard method has a role not only in plan-making, but is also used in planning decisions to determine whether an area has identified a 5 year land supply for homes and for the purposes of the Housing Delivery Test (where strategic policies are more than five years old). Where this applies, the revised standard method (inclusive of the cities and urban areas uplift) will not apply for a period of six months from the publication of the amended planning practice guidance. After 6 months, the new standard method will apply.”
For London:
“It is clear that in London, in the medium term, there will need to be a much more ambitious approach to delivering the homes the capital needs. The Secretary of State for Housing, Communities and Local Government expects to agree the London Plan with the Mayor shortly. This new plan, when adopted, will set London’s housing requirement for the next 5 years. The local housing need uplift we are setting out today will therefore only be applicable once the next London Plan is being developed. In order to support London to deliver the right homes in the right places, the government and Homes England are working with the Greater London Authority to boost delivery through the Home Building Fund. Homes England has been providing expertise and experience to support the development of key sites in London. Sites like Old Oak Common, Nine Elms and Inner East London provide opportunities to deliver homes on significant brownfield sites. The Secretary of State for Housing, Communities and Local Government will consider giving Homes England a role in London to help meet this challenge, working more closely with the Greater London Authority, boroughs and development corporations to take a more direct role in the delivery of strategic sites in London and the preparation of robust bids for the new National Homebuilding Fund.”
A final musing for the lawyers. It has become a bit of a knee jerk reaction to proposals to question whether strategic environmental assessment was in fact required but…was it?
“From the statutory framework it can be seen that a plan or programme is only required to be the subject of an environmental assessment if all four of the following requirements are satisfied:-
(1) The plan or programme must be subject to preparation or adoption by an authority at national, regional, or local level, or be prepared by an authority for adoption, through a legislative procedure by Parliament or Government;
(2) The plan or programme must be required by legislative, regulatory or administrative provisions;
(3) The plan or programme must set the framework for future development consents of projects; and
(4) The plan or programme must be likely to have significant environmental effects.”
It was held in that case that the GPDO and Use Classes Order changes did not require SEA because they do not set the framework for future development consents.
The previous challenge to NPPF changes in Friends of the Earth v Secretary of State (Dove J, 6 March 2019) had also failed. Dove J held that, whilst it did set the framework for subsequent development consents, the NPPF was not a measure “required by legislative regulatory or administrative provisions“.
But what is wrong with the following analysis?
⁃ criterion 1 – standard method = a plan prepared by government
⁃ criterion 2 – standard method = a plan required by administrative provisions, i.e. required by NPPF paragraph 60
⁃ criterion 3 – standard method sets framework for local plans and for decision making – e.g. onus on the major towns and cities in their next plans to plan for 35% more homes or suffer consequences via the tilted balance and housing delivery test – indeed geographically specific in a way which the NPPF and PPG has previously largely avoided
⁃ criterion 4 – standard method likely to have significant environmental effects – of course.
In any event, wouldn’t some evidence be helpful, as well as a proper assessment of impacts and alternatives, before lurching to a new system that has moved a long way further away from being any methodological assessment of local housing need?
What happens when a development plan, or one or more of its policies, is found to be unlawful? There have been two instances of this in 2020: in relation to the Leeds Site Allocations Plan (in the Aireborough case, the subject of three rulings by Lieven J between January and August this year) and in relation to the Harrogate Local Plan (in the Flaxby case, the subject of a ruling by Holgate J last week).
My firm acted for the claimant in both cases (alongside Jenny Wigley in Aireborough and Christopher Katkowski QC and Richard Moules in Flaxby). Aside from the substantive issues arising, the cases are interesting examples of the flexibility that the court has when it finds against the plan making authority. By virtue of the changes made to section 113 of the Planning and Compulsory Purchase 2004 by the Planning Act 2008, the court no longer simply has to quash the plan, or relevant part of the plan (meaning that the authority would need to start again) but can “remit” the plan back to an earlier stage in its preparation so that decisions can be taken again, from the stage where the errors occurred.
I set out the relevant sub-sections of Section 113 as follows:
(7) The High Court may—
(a) quash the relevant document;
(b) remit the relevant document to a person or body with a function relating to its preparation, publication, adoption or approval.
(7A) If the High Court remits the relevant document under subsection (7)(b) it may give directions as to the action to be taken in relation to the document.
(7B) Directions under subsection (7A) may in particular—
(a) require the relevant document to be treated (generally or for specified purposes) as not having been approved or adopted;
(b) require specified steps in the process that has resulted in the approval or adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken;
(c) require action to be taken by a person or body with a function relating to the preparation, publication, adoption or approval of the document (whether or not the person or body to which the document is remitted);
(d) require action to be taken by one person or body to depend on what action has been taken by another person or body.
(7C) The High Court’s powers under subsections (7) and (7A) are exercisable in relation to the relevant document—
(a) wholly or in part;
(b) generally or as it affects the property of the applicant.
At an initial hearing Lieven J first considered arguments at by Leeds City Council and the two developer interested parties that as an unincorporated association the Aireborough Neighbourhood Development Forum did not have legal capacity to bring the claim. After a useful review of the caselaw on standing, the judge held that the Forum could indeed bring the claim: the “critical question in judicial review or statutory challenge is whether the claimant is a person aggrieved or has standing to challenge, which is not a test of legal capacity but rather one of sufficient interest in the decision not to be a mere busybody.”
Judgment 2: substantive issues
There was then the main hearing, which lasted two days.
The Site Allocations Plan (SAP) had initially been promoted on the basis of housing need evidence prepared in accordance with Leeds City Council’s 2014 core strategy. The significant level of housing need identified by the core strategy was used as the basis for exceptional circumstances justifying green belt releases. However, the housing need requirement was reduced during the course of the SAP examination based on changes to the government’s standard methodology for assessing housing need, and a much lower housing need requirement was therefore promoted the city council as part of a selective review of the core strategy (CSSR) being promoted at the same time as the SAP.
The city council proceeded with the adoption of the SAP, in accordance with the examining inspectors’ recommendation, notwithstanding the claimant’s submissions that the case for exceptional circumstances had been undermined given the lower housing need.
The claim was successful on three grounds. The judge found that the material change of circumstances had been insufficiently considered and its consequences insufficiently explained by the examining inspectors. This amounted to a failure to provide adequate reasons, which had been contended in two grounds of challenge. The inspectors also made an error of fact amounting to an error of law in calculating housing need figures.
The defendant was found also to have breached the Strategic Environment Assessment Regulations by failing to consider and consult upon a “reasonable alternative” to continuing with the SAP in materially changed circumstances. However, relief was not granted in respect of this ground of challenge because the failure was found not to have been likely to have resulted in a different outcome.
Following hand down of the main judgment Lieven J then needed to consider the parties’ written submissions as to the relief to be granted to give effect to her judgment: whether to quash all or part of the document or to remit it back to the city council or Secretary of State.
The dispute between the parties was as to the appropriate remedy under section 113 and the scope of any remedy, i.e. whether it should apply across the whole of Leeds rather than just the area for which the claimant was the neighbourhood development forum. Applying University of Bath v North Somerset Council (HHJ Alice Robinson, 7 March 2013), the judge determined that remittal was the appropriate remedy, as she held that it was appropriate to go back to the stage where the error of law occurred rather than back to the very beginning of the local plan process.
The judge also held that the scope of the remedy should be all Green Belt allocations in Leeds, rather than just those in Aireborough. Although the claim was focused on Aireborough, the claim was never limited to only those sites. The grounds of challenge went to the Green Belt allocations in their entirety. In the face of submissions from the Secretary of State, the allocations were remitted back to the inspectors and the judge indicated that it would be for the council to consider what modifications if any to make.
Flaxby
Flaxby Park Limited v Harrogate Borough Council (Holgate J, 25 November 2020) concerned the new settlements policy within the plan, which purported to identify a broad location for a new settlement within the borough, at Green Hammerton/Cattal. Flaxby Park Limited argued that that the council had not properly considered its alternative proposals.
The detailed chronology is set out at length in Holgate J’s judgment but in basic summary, the local plan inspector agreed with Flaxby that the council should carry out further sustainability appraisal to consider possible reasonable alternatives to the Green Hammerton/Cattal, including broad locations around Flaxby and other new settlement options.
The council carried out further work and consulted upon it, reported it and the consultation responses to the inspector who concluded that the plan was sound. The council then adopted the plan.
In summary, Flaxby’s complaints were partly as to the adequacy of the sustainability appraisal work and the extent to which it had been taken into account by the council, arguing that the council (1) had failed properly to consider the outcome of the assessment of alternative “broad locations” (and officers purported to carry out that consideration rather than the council itself) (2) had failed to compare the broad locations of Flaxby and Green Hammerton/Cattal on an equal basis because it did not include in the Additional sustainability appraisal work an additional 630 ha of land which had been identified by consultees and (3) had failed properly to examine viability and deliverability of the Green Hammerton/Cattal proposals.
The judge partly accepted the first complaint, in that, after an examination of the extent to which decisions in relation to the local plan process may lawfully be delegated, he found that “the full Council did not take into account the final SEA material and consultation responses, or a summary and analysis thereof, when they resolved to adopt the local plan”.
The judge has ordered that “the whole of Local Plan shall be remitted firstly, to the Defendant’s Cabinet to re-consider whether or not to accept the Inspector’s recommendations in so far as they related to the New Settlement Policies, and secondly, to the Defendant’s full Council to consider the Cabinet’s decision, whether or not to accept the Inspector’s recommendations in so far as they related to the New Settlement Policies, and whether or not to adopt the Local Plan with those policies.”
For completeness while we are talking about local plan challenges…
This claim focused on the Local Plan’s Policy BE2 which, in operation with other parts of the plan, releases from the green belt a site of approximately 32 hectares of mainly agricultural land at Hollands Farm, south-east of High Wycombe, allocating the majority of the site for housing (some 467 dwellings).
The main grounds of challenge were first that Policy BE2 releasing the Site from the green belt was adopted on a basis of misunderstanding or misinterpretation of national policy (including the National Planning Policy Framework 2012 paragraphs 47 and 50) and guidance (including the 2014 Planning Practice Guidance) regarding published household projections, in part involving erroneous calculations of “objectively assessed housing need” (“OAHN”) for the local area. Second, that that Policy BE2 releasing the Site from the green belt was adopted on a basis of misapplication of national green belt policy requiring exceptional circumstances for release of land from green belt, in part as there were no exceptional circumstances.
Holgate J rejected all grounds of challenge. He stated that “it is important for the court to emphasise … that its role is not to consider the merits of the Council’s proposed policy or of the objections made to it. The court is only able to consider whether an error of law has been made in the decision or in the process leading up to it.”
On the first ground, Holgate J held that the local plan had been adopted following proper consideration of applicable published household projections, without errors of law, and with appropriate planning judgment being exercised by decision-makers. In doing so, he commented that “There have been many attempts in the last few years to entice the courts into making pronouncements on the methods used to assess OAHN. Repeatedly the response has been that this is a matter of planning judgment for the decision-maker and not for the courts.”
On the second ground, Holgate J held that, on the basis of there being no definition of the policy concept of “exceptional circumstances”, the expression “is deliberately broad and not susceptible to dictionary definition. The matter is left to the judgment of the decision-maker in all the circumstances of the case. Whether a factor is capable of being an exceptional circumstance may be a matter of law, as an issue of legal relevance. But whether it amounts to such a circumstance in any given case is a matter of planning judgment”. He held that the relevant decision-maker’s (an Inspector) reasons for finding “exceptional circumstances” do not “raise any substantial doubt as to whether a public law error was committed”; the “overall package of considerations upon which the Inspector relied was plainly capable of amounting to “exceptional circumstances” and could not be described as simply “commonplace”. It is impossible to say that the judgment which the Inspector reached was irrational. It did not fall outside the range of decisions which a reasonable Inspector could reach.”
The Court of Appeal this month refused the claimant permission to appeal.
Most of the summer blockbusters were paused from release this summer, except for Tenet, which no-one seems to understand. Oh and the statutory instruments making those major amendments to the GPDO (eg building upwards, and resi development to replace existing commercial buildings) and the Use Classes Order (eg the new class E), which hit our screens just before Parliament rose for the summer recess. The Planning For The Future white paper was published (visually spectacular) after Parliament had risen.
This post looks briefly at the role of Parliament in debating these documents, and at the Rights : Community : Action judicial review of the GPDO and Use Classes Order changes.
The amendments to the General Permitted Development Order and Use Classes Order
The statutory instruments (“SIs”) were made under the negative resolution procedure. This means that although the SIs came into effect on when stated, either House can vote to reject them within 40 sitting days, following a motion (“prayer”) laid by a member of the relevant House. If rejected, the relevant statutory instrument is annulled, i.e. no longer of any legal effect.
There has been no Parliamentary debate so far on any of the SIs, although MHCLG minister Lord Greenhalgh did respond to questions in the Lords on 28 July 2020 (ahead of the Lords going into recess the next day).
Labour has laid a motion against the GPDO SIs, but (1) given the Government’s substantial majority there is surely no realistic likelihood of that succeeding on a vote and (2) the narrative in relation to the changes to the GPDO and Use Classes Order seems to have got hopelessly confused with concerns as to the separate proposals in the white paper in the minds of politicians,the press and the public – see for instance Valerie Vaz, shadow leader of the House of Commons, on 3 September 2020:
“We have prayed against the town and country planning permitted development regulations—I think there are three sets of them. The shadowMinister for Housing and Planning, my hon. Friend Mike Amesbury, has written to the Secretary of State. I hope that the Leader of the House will find time for that debate.
During August Parliament was not sitting, but extremely important announcements were being made. I cannot understand why the Government, who say consistently that Parliament is sovereign, do not come to the House to explain changes in policy. Apparently, algorithms will now be used in planning decisions. That takes away the very nature of making planning decisions—whether relevant considerations are taken into account or whether irrelevant considerations are taken into account—and it undermines administrative law. When you make a decision, you must give reasons.
The Town and Country Planning Association says that 90% of planning applications are approved and there are 1 million unbuilt commissions [sic]. It is time for the shires to rise up and oppose these new policies. Will the Leader of the House ask the current Secretary of State for Housing, Communities and Local Government to come to the House to explain why he is using algorithms to stomp on our green and pleasant land?”
Quite aside from the probably theoretical possibility of any or all of the SIs being annulled, there is also the judicial review that has been brought by a new campaign group, Rights : Community : Action. It describes itself as “a coalition of campaigners, lawyers, planners, facilitators, writers and scientists, united by a shared commitment to tackle the Climate Emergency – with people and for people, and the environment.” There are four protagonists: Naomi Luhde-Thompson (currently on sabbatical from Friends of the Earth), Hugh Ellis (Town and Country Planning Association), Laura Gyte (Oxfam) and Alex Goodman (Landmark Chambers).
“(1) GROUND 1: In respect of each of the three SIs, the Secretary of State unlawfully failed to carry out an environmental assessment pursuant to EU Directive 2001/42/EC (“the SEA Directive”) and the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”).
(2) GROUND 2: In respect of each of the three SIs, the Secretary of State failed to have due regard to the Public Sector Equality Duty (“the PSED”) in s.149 of the Equality Act 2010 (“the EA 2010”).
(3) GROUND 3: In respect of each of the three SIs, the Secretary of State failed to consider the weight of the evidence against these radical reforms, including prior consultation responses and the advice of his own experts. This composite ground is divided as follows:
Ground 3a: The Secretary of State failed to conscientiously consider the responses to the consultation on proposed planning reforms which ran from 29 October 2018 to 14 January 2019
Ground 3b: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State failed to take into account the advice of the government’s own experts: in particular, the findings of the Building Better, Building Beautiful Commission’s “Living with Beauty” Report (“The BBBB Report”), and the findings of his own commissioned expert report “Research into the quality standard of homes delivered through change of use Permitted Development rights” (“The Clifford Report”).
Ground 3c: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State adopted an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed Permitted Development reforms: namely those relating to the deployment of 5G wireless masts.
Ground 3d: In respect of SI 2020/756, the Secretary of State was required to re- consult before introducing Class ZA. There was a legitimate expectation of re- consultation on the proposal for a permitted development right allowing the demolition and rebuild of commercial properties, arising from an express promise to re-consult which was made in the original consultation document.”
Do read the Statement of Facts and Grounds itself for the detail. The Government has served summary grounds of defence but I do not think that they are on line.
The group is seeking an order “declaring that the decision to lay the SIs was unlawful. The Claimant also seeks an order quashing the SIs for unlawfulness.” It was also initially seeking an order “suspending the operation of the SIs until the disposal” of the claim, but it has now withdrawn that request.
On 2 September 2020 Holgate J made an order listing the claim to be heard in court “for 1.5 days in the period between 8th October 2020 to 15th October 2020”. It will be a “rolled up” hearing, i.e. there has been no decision yet as to whether any of the grounds are arguable. The Planning Court has pulled out all the stops to list the case quickly – after all, if any parts of the SIs were now to be quashed just think of the implications and complications! But there must be a good likelihood of the case going to the Court of Appeal or beyond, particularly if any of the grounds gain any traction. There could be uncertainty for some time.
No doubt the claim will touch various raw nerves amongst some – an attack on the Government’s “fast changes” agenda, part reliance on EU-derived environmental legislation, Aarhus Convention costs capping, crowdfunded litigation, “activist lawyers” – it ticks all the boxes! But let’s see what the court makes of it.
The Planning For The Future white paper
The white paper is of course out for consultation, along with the associated shorter term measures document, so it might be said that they don’t amount to significant policy announcements – but that would surely be simplistic: there is a clear direction of travel. With this in mind, being no expert on Parliamentary conventions and procedure, I have two questions:
1. Surely the announcements should first have been in Parliament if I read this House of Commons Library note on Government policy announcements (18 January 2013) correctly?
2. What is the precise status of Planning For The Future? It is expressed on the face of the document to be a “white paper” but would it not usually therefore be expected to have been tabled in Parliament as a numbered command paper and to include the wording: “Presented to Parliament by the Secretary of State for Housing, Communities and Local Government by Command of Her Majesty“? On one level, does it matter? But surely it does?
I also note that some of the shorter term measures (covered in last week’s blog post) could take effect soon after the consultation deadline of 1 October (particularly the introduction of the revised standard method – the “algorithm” if you will) so if there is to be any proper, informed, debate in Parliament I would suggest that there is little time to be lost.
SIMONICITY 