In its absence maybe read Nicola Gooch’s and Lichfields’ excellent summaries of the various announcements from Wednesday’s budget onwards?
https://www.birketts.co.uk/people/nicola-gooch/further-thoughts/
See you in December!
Simon Ricketts, 29 November 2025
Personal views, et cetera
There was a surprising announcement on Tuesday by the Mayor of London, “supported by the new Government”, that he is to create a Mayoral Development Corporation to “transform Oxford Street, including turning the road into a traffic-free pedestrianised avenue” so that it can “once again become the leading retail destination in the world” (see Mayor of London and government announce bold plans to transform Oxford Street (17 September 2024).
We all know that there was a longstanding disagreement between the Mayor and the previous Conservative administration of Westminster City Council as to whether the street should be pedestrianised, his 2016 pedestrianisation scheme having been scuppered by opposition by WCC, as highway authority and therefore the relevant body to implement the proposals, in June 2018. But Labour took control of WCC in May 2022 and I’m left scratching my head as to what lies behind his announcement and its timing.
WCC’s Statement on Oxford Street (17 September 2024) reveals that the council was only informed the previous Thursday that this was on the cards. The plan would serve to frustrate the council’s own plans to redesign and improve the street.
Not only that, the council had a by-election two days after the announcement and lost one of its West End seats to the Conservatives (see Labour loses central London by-election to Tories amid row over Sadiq Khan’s Oxford Street pedestrianisation (Standard, 20 September 2024)). Was the result affected by the announcement? Well it can’t have helped, given how locally unpopular the prospect of pedestrianisation has been, with residents concerned about buses and taxis being displaced to other streets.
The Mayor’s announcement contains no information as to what the boundaries would be of the proposed Mayoral Development Corporation. I’m assuming that the main reason for designating the Corporation would be to give it the necessary planning and highways powers to deliver not just the pedestrianisation but any necessary works on surrounding streets – and is the Mayor looking to include the surrounding buildings within its area? There is no information in the public domain.
The procedure for establishing Mayoral Development Corporations is set out in sections 196 to 200 of the Localism Act 2011. The Mayor will need first to consult a number of bodies, including of course WCC, before placing it before the London Assembly, undertaking public consultation and then notifying the Secretary of State.
What funding will be made available by the Government? Again, nothing is in the public domain.
All in all this seems to me a very odd use of the Mayor’s powers to achieve a scheme which surely could have been driven through with WCC’s Labour administration with appropriate sticks and carrots. Or is the announcement itself just the waving of a big stick? Time will tell…
Simon Ricketts, 21 September 2024
Personal views, et cetera
image of Mayor’s 2016 scheme courtesy of Mayor of London
…as Mark Twain may or may not have said.
There was a case that I missed when it was handed down: Mylward v Weldon (Chancery Court of England, 15 February 1595). Thank you to Major Clanger (whoever you may be) and barrister Jacob Gifford Head who brought it my attention via Bluesky. It’s regularly referred to in the context of over-long legal documents eg see David Hart KC’s Should lawyers get named and shamed for being boring? (5 December 2011) and Gordon Exall’s Useless Bundles (10 July 2014)
In Mylward v Weldon the court was faced with a party that had filed a pleading which was 120 pages in length which the court considered could have been confined to 16 pages and which it found to have been motivated by the “malicious purpose” of increasing the costs of the other party in the litigation. The court, in an admirably concise one-paragraph judgment, found that: “such an abuse is not in any sort to be tolerated, proceeding of a malicious purpose to increase the defendant’s charge, and being fraught with much impertinent matter not fit for this Court; it is therefore ordered, that the Warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall, on Saturday next, about ten of the clock in the forenoon, and then and there shall cut a hole in the myddest of the same engrossed replication (which is delivered unto him for that purpose), and put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the bar of every of the three Courts within the Hall, and shall then take him back again to the Fleet, and keep him prisoner, until he shall have paid 10l. to Her Majesty for a fine, and 20 nobles to the defendant, for his costs in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this Court, for the abuse aforesaid.”
Basically, a hole was to be cut in the middle of the document, the document (“with the written side outwards”) was then to be put over the offending party’s head and he was then to be led around the courts before he was then imprisoned until a large fine had been paid.
I would like this a lot if I didn’t have half an eye on the risk of being the one paraded.
But it did bring me back to how the planning system might be reformed so as to be faster and simpler.
On Bluesky I made the only half-serious suggestion that the principle in Mylward v Weldon should apply to every document in the planning system.
This, briefly, is the serious half of that suggestion (which, before you ask, does not apply to blog posts):
“I regret the need to have to make some observations on the inappropriate manner in which the claim was put before the court. I do so in order to make it plain to litigants that the practices that were followed in this case, and regrettably sometimes in others, are not acceptable. Notwithstanding the clear statement by Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC (Admin) 74 at paragraphs 6-10, this claim was accompanied by six volumes comprising over 2,000 pages of largely irrelevant material. The Claimant’s skeleton argument was long, diffuse and often confused. It also lacked proper cross-referencing to those pages in the bundles which were being relied upon by the Claimant. The skeleton gave little help to the court.
Shortly before the hearing the court ordered the production of a core bundle for the hearing not exceeding 250 pages. During the hearing, it was necessary to refer to only 5 or 6 pages outside that core bundle. Ultimately, as will be seen below, the claim succeeds on one rather obvious point concerned with the effect of the Grampian condition in the 2016 permission. But this had merely been alluded to in paragraph 76 and the first two lines of paragraph 77 of the skeleton. Indeed, the point was buried within the discussion of Ground 3 of the claim, a part of the Claimant’s argument to which it does not belong. Nevertheless, Mr Tim Buley, who appeared on behalf of the Defendant, acknowledged that he had appreciated that this point could be raised. He was ready to respond to it.
Certainly, for applications for statutory review or judicial review of decisions by Planning Inspectors or by the Secretary of State, including many of those cases designated as “significant” under CPR PD 54E, a core bundle of up to about 250 pages is generally sufficient to enable the parties’ legal arguments to be made. In many cases the bundle might well be smaller. Even where the challenge relates to a decision by a local planning authority, the size of the bundle need not be substantially greater in most cases.
Prolix or diffuse “grounds” and skeletons, along with excessively long bundles, impede the efficient handling of business in the Planning Court and are therefore contrary to the rationale for its establishment. Where the fault lies at the door of a claimant, other parties may incur increased costs in having to deal with such a welter of material before they can respond to the Court in a hopefully more incisive manner. Whichever party is at fault, such practices are likely to result in more time needing to be spent by the judge in pre-reading material so as to penetrate or decode the arguments being presented, the hearing may take longer, and the time needed to prepare a judgment may become extended. Consequently, a disproportionate amount of the Court’s finite resources may have to be given to a case prepared in this way and diverted from other litigants waiting for their matters to be dealt with. Such practices do not comply with the overriding objective and the duties of the parties (CPR 1.1 to 1.3). They are unacceptable.
The Court has wide case management powers to deal with such problems (see for example CPR 3.1). For example, it may consider refusing to accept excessively long skeletons or bundles, or skeletons without proper cross-referencing. It may direct the production of a core bundle or limit the length of a skeleton, so that the arguments are set out incisively and without “forensic chaff”. It is the responsibility of the parties to help the Court to understand in an efficient manner those issues which truly need to be decided and the precise points upon which each such issue turns. The principles in the CPR for dealing with the costs of litigation provide further tools by which the Court may deal with the inappropriate conduct of litigation, so that a party who incurs costs in that manner has to bear them.”
Quite the Mylward v Weldon vibe. But shouldn’t we reflect on the extent to which these comments may be applicable to much of the wider planning system?
The simple fact is that there is currently no external discipline being applied in relation to the length of documents. Even the lightest of nudges by way of policy guidance and/or financial consequences in relation to for instance application fees (and appeal fees, if they ever come) and costs awards would have an immediate impact. And a word count brings the discipline of making sure that what is being said is being said clearly and simply, with irrelevant material excised.
I’d better end there. I don’t have that discipline with this blog, sorry. Enjoy the rest of this long weekend; I’ve taken up enough of your time.
Simon Ricketts, 24 August 2024
Personal views, et cetera
Extract from photo by Behram Norouzi courtesy of Unsplash
The statistics are clearly going in the wrong direction: fewer public sector planning officers (see eg Labour’s pledge to hire 300 planning officers fails to make up for staff exits (FT, 2 June 2024, paywall or free registration) and an increasing number of private sector planning solicitors (The biggest planning law firms 2024 , Planning Resource, June 2024, paywall).
There you have it as to the two overwhelming problems with the current planning system:
I was reflecting on that second element this week at a really great “Planning Question Time” event in Exeter arranged by Carney Sweeney.
I’ve never been one to label all regulation as “red tape”. It’s not “red tape” if it serves a necessary purpose which is justified in the public interest. But this country is increasingly drowning in bureaucracy, and I stand before you as the living embodiment of it.
Town Legal has 12 partners, 28 qualified solicitors in total specialising in planning – and we are not the largest.
When I started as a lawyer in the 1980s I’m not sure there were too many more planning solicitors than that in the whole of the City! I don’t have 1980s figures, but going back just to say 2000-2001 the position in London is set out in the Chambers Directory table below. The largest team by far at that time was Berwin Leighton (now part of BCLP): 4 partners, 16 planning lawyers in total, followed by Denton Wilde Sapte (now Dentons): 3 partners, 13 planning lawyers in total – the bulwark of those firms’ practices at the time being work for their respective clients Tesco and Sainsbury’s. No other firms were in double figures. Now there are 25 firms with more than 10 planning solicitors!
Chambers Directory 2000-2001
Extract from Planning Resource survey, June 2024
According to the Planning Resource survey, the number of private sector planning solicitors increased by 8% just last year! This is not a good thing.
What on earth is keeping so many planning lawyers busy, even in an environment when the number of planning applications has been falling, and does it have to be this way?
These are some of the issues that keep me constantly busy, most of simply did not exist 20 or 30 years ago:
Much of this of course is in the public interest and has value. Most schemes which come forward are far more considered and of higher quality than back when I started.
But I do wonder at what cost.
Here’s an idea for Planning Resource: How about publishing an annual metric, being the ratio of homes and square metres of floorspace delivered in England over the relevant year divided by the number of practising planning solicitors in the private sector? I’m not wanting to do us out of a job. It would just be nice to be more productive…
Lastly, nostalgia for some of us: commentary from the 1994/1995 Chambers Directory. The scary new thing that was direct professional access to the bar! And some names to conjure with – all those names were, and in some cases still are, bright stars in our once little planning law world.
Chambers Directory 1994-1995
Simon Ricketts, 15 June 2024
Personal views, et cetera
The Court of Appeal handed down somewhat of a Christmas present today for those of us frustrated with questions raised from time to time by local planning authorities as to whether “Hillside” issues may arise in relation to particular application strategies adopted by our clients. In his judgment today in R (Fiske) v Test Valley Borough Council (Court of Appeal, 15 December 2023) Lindblom LJ makes it clear that this is simply a question for the developer to deal with – it is “not the authority’s job”.
The conclusion is clear although the underlying facts of the judgment take some unpicking. The first elephant trap to avoid is that whilst the case is part of the same saga arising from a local resident’s efforts to thwart development for a proposed solar farm in Hampshire, this is not an appeal from the High Court’s ruling in R (Fiske) v Test Valley Borough Council (Morris J, 6 September 2023) – the case that endorsed the now well understood legal position in relation to the scope of section 73 permissions, that the development approved must not depart from the description of development on the face of the parent planning permission and must not constitute a fundamental alteration to the development approved by the parent planning permission. The court held in that case that removal of a substation from the approved development (a revised form of substation having been approved within the site by way of a separate planning permission) could not be achieved by way of section 73 given both that this conflicted with the operative wording of the parent permission that referred to a substation and given that the planning committee was not made aware of the removal of the substation from the proposals. (Here is Town Legal’s Town Library summary of that ruling).
In today’s Court of Appeal ruling, the question before the court was as to whether that separate planning permission had been granted unlawfully, given that at the time it was granted the subsequently quashed section 73 permission (to amend the rest of the scheme to be consistent with that permission) had not yet been granted (Sincere congratulations if you are still following this). As encapsulated by Lindlom LJ at the beginning of his judgment:
“Did a local planning authority err in law when granting planning permission for a distribution network operator (“DNO”) substation to connect a proposed solar park to the national grid? In particular, did it fail to have regard to an “obviously material” consideration by not taking into account the incompatibility of that planning permission with the permission it had previously granted for the solar park itself? These questions arise in this case. They involve principles of law that are already well established.”
Lindblom LJ then sets out the relevant legal principles in relation to the nature of material considerations and as to the incompatibility of planning permissions (our old friends Pilkington, Pioneer Aggregates and Hillside).
He goes on to agree with the conclusions of HHJ Jarman KC at first instance: the incompatibility of planning permissions or the prospect of some future breach of planning control was not a material consideration to which the council was required to have regard under any provision of the statutory planning code.
“The fact that the differences between the two proposals were obvious when the challenged decision was taken does not mean that their incompatibility was an “obviously material” and thus mandatory material consideration in the council’s decision. That would be a misconception. The planning system does not preclude the possibility of a number of applications for planning permission being made and granted for different developments on the same site. It accepts the granting and co-existence of mutually incompatible permissions, one or more of which may prove incapable of lawful implementation, whether in whole or in part, unless the incompatibility can be defeated by a further grant of permission under section 70 of the 1990 Act, or section 73. This was a point strongly emphasised in Pilkington.
There is nothing in the judgment of Lord Sales and Lord Leggatt in Hillside Parks, nor in Lord Widgery’s in Pilkington, or elsewhere in the cases to which counsel referred, to support the proposition that the incompatibility between a previously granted planning permission and an application seeking permission for a different scheme is a mandatory material consideration in the decision being taken, either as a general rule or in the “special cases” to which Lord Widgery referred.”
“In the light of the relevant reasoning in Pilkington, recently confirmed in Hillside Parks, and the cases on mandatory material considerations, I do not accept that the fact of the 2017 permission being expressly “associated” with the application for the 2021 permission made the incompatibility between the two permissions an “obviously material” consideration. Such incompatibility did not nullify or prevent the implementation of either the 2017 permission or the 2021 permission. It did not negate the principle of a solar park development on the site, which the 2017 permission had established. Nor did it go to the intrinsic planning merits of the substation proposal that the committee was now considering.”
“I see no force in the submission that the possibility of Woodington Solar acting in breach of planning control was itself an “obviously material” consideration. If the incompatibility of the two planning permissions was not an “obviously material” consideration, the future actions of a developer with the benefit of those two permissions cannot be seen as a matter on which the council needed to speculate. This was a question for Woodington Solar as developer. It did not bear on the planning merits of the proposal in hand.”
“For a large development such as this to require changes to be made to it in the course of design and construction is not unusual. It often happens. When it does, the developer may be expected to make such changes through the normal planning process. If he has the benefit of two or more planning permissions incompatible with each other, or potentially so, there may be lawful steps he can take to overcome that incompatibility and proceed with the development he wants to build. Sometimes this will not be so. In that case the incompatibility will remain, and the lawful implementation of one permission or the other, or both of them, will not be possible. But the local planning authority is not legally compelled to anticipate how the developer might later choose to deal with such inconsistency, or to assume that he will resort to unlawful means of doing so. That is not the authority’s job.”
Hear, hear.
Just waiting now from my NPPF present from DLUHC, although I suspect it may be very similar to what we all received this time last year…
Simon Ricketts, 15 December 2023
Personal views, et cetera
Photo courtesy of Neenu Vimalkumar via Unsplash
I know, it’s really serious (© Morrissey, Marr)
Our version of eats, shoots and leaves might be, for instance:
Stop, plan!
vs.
Stop plan!
Or perhaps ask yourself whether you follow your principles, or your principals; or whether you effect better outcomes, or affect them; or whether this issue needs an enquiry, or an inquiry?
Whilst bloggers are not bound by the strict rules of spelling, punctuation and grammar, the grown-ups in the planning system should be: after all (controversial thought), isn’t the modern planning system more about words than about plans?
These thoughts were sparked by Nicola Gooch bringing to my attention Moore v Somerset Council (Jay J, 12 October 2023) – maybe to deflect me from writing about more topical issues (do read her latest post on what has happened to the Lords’ amendments to the LURB now it is back in the Commons).
Moore was just the latest example of litigation spawned by poor drafting, which could have been resolved by way of the introduction of two commas into a local plan policy.
The dispute was all about the meaning of the fifth indent to this policy in Mendip District Council’s local plan:
“Town centre redevelopments, including Saxonvale and, in the longer term, the Westway centre, (as identified in the Policies Map as CP6C), will collectively deliver:
(my emboldening).
Did this mean that town centre developments were to deliver at least half of the 11,500 sq m of flexible office/studio space identified elsewhere in the plan as “town centre” uses (NB to add to the confusion, that figure was in itself an error, the correct figure referred to elsewhere in the plan being 11,850 sq m)? Or did it mean that this floorspace needed to be delivered within the Saxonvale area of the town centre? And what was the relevance of the reference to FETE, an educational establishment?
The claimant was seeking to challenge a planning permission for a mixed use development at Saxonvale. He contended that the council had wrongly concluded that the policy required the floorspace to be delivered in the town centre generally rather than at Saxonvale.
Jay J was not impressed with the drafting: “[Counsel for Somerset (the successor authority to Mendip)) described [the fifth indent] as “ambiguous” but a more accurate description would be that it is poorly drafted. It would certainly benefit from the insertion of punctuation.”
“It is not just the absence of punctuation that bedevils this provision. The FETE educational site, undoubtedly to be provided within Saxonvale and nowhere else, is completely different in character from the “flexible office/studio space” stipulation. This uncomfortable combination of developments or redevelopments which do not belong together under the same rubric has brought about the present difficulty.”
After detailed submissions from both sides, the judge allowed the claim, in essence concluding that the indent should be read as follows:
“o At least half of the 11,500 sqm of flexible office/studio space requirement (see Table 10), including a permanent site for FETE, within the Saxonvale area”
He accepted that putting the reference to FETE in the same sentence as the flexible office/studio space was still “uncomfortable” but I read the judgment as a valiant attempt at making the best of a bad job!
All credit to local plan inspectors who raise ostensibly nitpicking points on policy wording during local plan examinations. If that isn’t done, this is what happens.
The traditional approach to legal drafting, of course, was to avoid the use of punctuation, so as to impose the discipline of ensuring that the meaning is sufficiently precise without recourse to punctuation that so often can go awry. But with such an approach, text can become overly dense and difficult to understand. Whether or not punctuation is used (and not to use it nowadays comes across as wilfully antiquated), the important thing is for text in plans, agreements, permissions and conditions to be stress-tested. Is the intended meaning unambiguous? It is interesting how many cases reach the Supreme Court which revolve around one phrase, for instance:
Trump International Golf Club v the Scottish Ministers (Supreme Court, 16 December 2015): the requirement, within a condition, for the applicant to submit a construction method statement for approval, but with no express requirement subsequently to comply with the statement once approved.
Suffolk Coastal District Council v Hopkins Homes (Supreme Court, 10 May 2017): “Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”
DB Symmetry v Swindon Borough Council (Supreme Court, 14 December 2022): “The proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose, shall be constructed in such a manner as to ensure that each unit is served by fully functional highway, the hard surfaces of which are constructed to at least basecourse level prior to occupation and bringing into use.”
Do you want to know one of my other bugbears? The use of the slash, as in “/”. Does it mean “or”, “and” or “and/or”? Usually its use denotes that the writers are hedging their bets. The Court of Appeal recently considered the meaning of “live/work” units, in the context of a lease, in AHGR Lyd v Kane-Laverack (21 May 2023). Dingemans LJ considered the circumstances of the grant of planning permission for the unit and concluded that the phrase “live/work” meant “live and/or work”: “the relevant plan which formed part of the planning permission showed the whole of the premises shaded as “live/work” which meant that there was no sub-division imposed by the planning permission into separate “live” or “work” areas. This meant that it would be for the leaseholder to determine where to live and where to work. Leaving such matters to the discretion of the leaseholder suggests a permissive approach to the phrase “live/work” meaning that the leaseholder might decide only to live at the premises, or only to work at the premises, or to do both in parts of the premises at their choosing. Thirdly because a leaseholder might be served with enforcement notices and might ultimately be the subject of criminal proceedings for breach of planning permission, then if it was intended that lawful use of the premises required both living and working, that would be spelled out using language that was clear and unambiguous.”
And don’t get me started on the Oxford comma.
Simon Ricketts, 21 October 2023
Personal views, et cetera
I wrote about the impending changes to the Building Regulations in my 7 January 2023 blog post, Tall Buildings & Fire Safety. At that point the Government was proposing various amendments including a threshold whereby residential buildings above 30 metres in height should be designed and built with two staircases. A “very short” transition period was proposed:
“59. The transition period will allow time for schemes to be completed but should not allow the opportunity for developments to get off the ground ahead of the new requirements coming into effect.
60. We would encourage all developments to prepare for this change now.”
Why 30 metres?
“30 metres is an accepted threshold for increased safety measures such as increased fire resistance provisions and marks a recognised trigger representing an increase in the level of risks in buildings overall. We therefore propose to introduce a new trigger in Approved Document B making provisions such that new residential buildings more than 30 metres are provided with a second staircase.”
The Government when publishing the consultation paper will have been aware that that the National Fire Chiefs Council had sought an 18 metres threshold – already the threshold in Scotland.
Now I don’t know whether 30 metres is the appropriate height – I’m told it is roughly equivalent to 10 storeys and that 18 metres is roughly equivalent to six or seven storeys – but that’s not the point of this blog post. Developers have amended their proposals to address what they understood to be the impending 30 metre requirement. Indeed they were specifically encouraged to by the consultation document! Of course there was no certainty pending the outcome of the consultation process but given the additional cost and consequent effect on viability of providing second staircases within buildings under 30 metres that was surely a reasonable stance to take.
Then, deep within Michael Gove’s 24 July 2023 long-term plan for housing press statement, is this statement:
“This long-term plan for housing therefore builds on our existing progress by:
And in his actual speech the statement that the Government is “providing much-desired clarity to builders that 18m will be the threshold that we will introduce for new buildings requiring second staircases. And of course there will be transitional arrangements in place to make sure that there is no disruption to housing supply.”
So a significant u-turn: 18 metres after all rather than 30 metres.
The big practical questions are:
Surely, if DLUHC were seeking to give “much-desired clarity to builders” and avoid “jeopardising the supply of homes“, the 24 July announcement would have been accompanied by a formal reasoned response to the consultation process and certainty that regardless of the detail of the transitional arrangements, the amended Regulations would definitely not catch, for instance, planning applications submitted before that announcement.
Instead, whenever any of us engaged with these issues bump into each other this summer, the topic of conversation – after holidays, the weather and the Government – will continue to be “have you heard anything as to the likely 18 m transitional arrangements?”
Simon Ricketts, 12 August 2023
Personal views, et cetera
Relativity by M.C. Escher, courtesy of Wikipedia
Fair question. Particularly at this festive time of year for planning lawyers given the annual publication yesterday by Planning magazine of its Planning Law Survey (16 June 2023, subscription only).
Perhaps recognising our narcissism as a profession, the magazine’s survey of planning lawyers doesn’t rank us by size, turnover or diversity as it does with planning consultants. Instead, it’s a survey of other professionals (“The firms and individual solicitors singled out in this year’s Planning Law Survey by a panel of 195 consultants, developers, councils and other client groups”) as to how highly we and, where relevant, our firms are “rated” (whatever that means). And don’t we all want to be loved? Don’t we just purr at the attention?
To declare an interest, obviously personally I love it. Thank you Planning magazine and thank you those who voted.
To declare another interest, personally I hate it. Inevitably good people are excluded – there may be seven solicitors from my firm in this year’s top 20 but, honestly, we could fill every place on it and more besides! And there are many lawyers from other firms who are as good (if being “good” is the criterion, as opposed to just having the necessary brand recognition – a large element of the rankings is inevitably down to brand recognition). And have we spoken about the humble brags and (this is not meant as a humble brag) the imposter syndrome arising?
So, what is a planning lawyer in the first place? What does a planning solicitor do? What does a planning barrister do? What are you actually rating us on?
Planning law is short-hand for a fluctuating bundle of areas of law, the breadth or narrowness of the bundle depending on the individual. In England and Wales, its core is of course the Town and Country Planning Act 1990 and related legislation and case law, as a strand of public/administrative law. But nowadays I would expect specialist knowledge of aspects of highways law, heritage law, environmental law relevant to development consenting (including environmental impact assessment, strategic environmental assessment and habitats protection), the Freedom of Information Act and Environmental Information Regulations, the community infrastructure levy, local government law and other relevant legislative areas. Some may be particular specialists in for instance compulsory purchase, infrastructure planning, Parliamentary processes and/or rating. I would also expect a working knowledge of other areas of law – in most roles you aren’t going to be getting far without a working knowledge of, for example, contract, tort, real estate, corporate, banking and trusts law – if only to the extent of knowing when to call in a specialist. If you engage at all in litigation, you need to understand court processes. And there are some areas which might be thought to be close to planning law which often fall in a different pigeon-hole, for instance housing law, alcohol and events licensing and the detailed operation of the Building Regulations.
Obviously, it’s a split legal profession in England and Wales: solicitors and barristers (not to forget legal executives as well).
What does a planning solicitor do?
Private practice solicitors will usually operate as a team, in a firm. You don’t instruct the individual – you instruct the firm.
What does a planning barrister do? You’re probably better off asking a planning barrister but here goes:
Private practice barristers will usually operate within a set of chambers, as self-employed individuals.
There are a few activities, “reserved legal activities”, which only can be carried out by an appropriately regulated lawyer. I’ve already mentioned the exercise of a right of audience. Another is the conduct of litigation (except in very specific circumstances non-lawyers should never be tempted to go on the record with the court in relation to legal proceedings). Another is preparing documents for registration at Land Registry and preparing other instruments relating to real or personal estate (I take this to include for instance section 106 agreements and agreements under section 38 of the Highways Act 1980 – solicitor or another qualified legal professional is required).
Maybe, aside from the usually forward looking focus in planning (“what is likely to happen/how can we influence that?” rather than “what happened/who was to blame?”) the teamwork element is what is most enjoyable. There are many areas where there are potential overlaps between the roles of lawyers and planners. I hope that a big part of what clients rate all of us on, lawyers and planners alike, is the extent to which we can:
I suspect I have only scratched the surface. And that you will have views. What have I missed?
Simon Ricketts, 17 June 2023
Personal views, et cetera
When do the ends justify the means?
I wrote about Michael Gove’s strong arm tactic to secure contributions from developers towards cladding and other building defect issues, in my 18 February 2022 blog post Developers As Proscribed Organisations: The Government’s Amendments to the Building Safety Bill. The Bill was enacted, including section 128 (prohibition on development for prescribed persons) and section 129 (building control provisions).
By way of the responsible actors scheme (the subject of this DLUHC guide), the Secretary of State can decide to exclude particular businesses (developers) from operating (developing). The background, as to the Grenfell tragedy (albeit with multiple points of culpability) and failings across many other developments, is understood but this is quite a market intervention for a Conservative Government and more of a v-turn than u-turn from the days of “red tape challenges” and similar (literally) dangerous nonsense.
How the process is going to work is now clearer, the draft Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 having been laid before Parliament on 25 April 2023, together with a helpful explanatory memorandum.
I’m going to quote a large chunk of that memorandum:
“7.2 Since the Grenfell Tower Fire, it has become evident that a very significant number of residential buildings of 11 metres and above in height were clad with unsafe materials which posed a fire safety risk to residents.
7.3 In January 2022, the Government set out its position that industry actors that had profited from the events leading up to the crisis must pay to fix the problems they created, and that the wider industry must also contribute to resolving these issues. Our objective with this instrument is to ensure that developers pay an appropriate share of remediation costs.
7.4 The Government initially secured (by Summer 2022) a public pledge from 49 larger developers, committing to fix life-critical fire safety defects in residential buildings 11 metres or more in height which they developed or refurbished in England between 1992 and 2022. In July 2022, the Government published an initial draft developer remediation contract, followed by a period of sustained and intensive engagement with around fifty major developers, coordinated by the Home Builders Federation, until January 2023 on how the Pledge commitments should be codified into a binding contract. The contract terms also include requirements that signatory developers keep residents in buildings which are undergoing remediation informed of progress, and to reimburse taxpayers for money that has already been spent to fix buildings through government funds.
7.5 The developer remediation contract is at the heart of the RAS. The Government has been consistent in its public position that developers who are eligible for the scheme but who elect not to make the important commitments set out in the developer remediation contract, or who fail to comply with its terms, should expect to face significant consequences given the significance and urgency of this problem. In such circumstances, they will be prohibited from carrying out major development and gaining building control sign-off in England, subject to certain exceptions set out in the instrument. The RAS is intended to support a level playing field for major developers in the industry, so that those developers who do make commitments to remediate are not disadvantaged. As of 21 April 2023, and subject to change, 46 of the 50 developers who have been invited to sign the contract have done so. In signing the contract, they have committed to remediation works estimated by the industry to be worth over £2 billion.
7.6 The description of who is eligible for the scheme captures, in both cases by reference to meeting a profits threshold [“average adjusted operating profits of over £10m per year over three years from 2017-2019”], (i) major housebuilders who have developed 11m+ residential buildings, and (ii) other large developers who have developed or refurbished two or more residential buildings that are known to have fire safety defects by virtue of having been assessed as eligible for a relevant government cladding remediation scheme. There is also a route for other developers who developed a defective building to volunteer to join the scheme. The developer selfremediation approach, and the RAS, is to be expanded over time to cover other 4 CO/EM/2022.3 developers who developed or refurbished defective 11m+ residential buildings and should pay to fix them.
7.7 As with the developer remediation contract, the RAS aims to improve the safety of buildings by requiring that any member of the RAS must identify and remediate, or pay for the remediation of, life-critical fire safety defects in residential buildings of over 11m in height which they developed or refurbished between 1992 and 2022. To join the scheme, members of the RAS will be required to enter into the developer remediation contract with DLUHC as published by DLUHC on 16 March 2023 and available at: https://www.gov.uk/government/publications/developer-remediationcontract, and comply with its terms.
7.8 The prohibitions in this instrument relate to persons who are eligible under the instrument for the new RAS scheme and do not join, or who join but who subsequently fail to comply with the scheme conditions and have their membership revoked, and persons controlled by them. It is necessary for the effectiveness of the scheme and prohibitions to include persons under the control of the prohibited developer so that a prohibited developer cannot continue their development business through other entities which they control.
7.9 The regulations enable Secretary of State to make exceptions from the prohibitions covering five main circumstances: businesses under the control of an eligible person who are not in the building industry; exceptions for projects necessary for critical national infrastructure; allowing building control sign-off for residential buildings where people have exchanged contracts on their new home before the prohibition on their developer went into effect; permitting purchasers and owners to obtain a regularisation certificate for unauthorised building work under the Building Regulations 2010; permitting emergency repair works; and permitting building works in occupied buildings to ensure resident safety.”
“11.1 We plan to issue guidance on the operation of the scheme and to local authorities on the operation of the statutory prohibitions. The guidance will be made publicly available by Summer 2023. Because of the time limits provided for in the instrument, this guidance will be available well in advance of the prohibitions being applied to any developer.”
According to the latest DLUHC update, 48 developers have so far signed the developer remediation contract. Three developers are named as being yet to sign the contract.
It may be a brutally effective measure. But imagine if a similar approach was taken to another industry, for example the media or (hmm) water utilities or (hmm hmm) some arms of state activity?
Simon Ricketts, 3 June 2023
Personal views, et cetera
Pic courtesy of Wesley Pibaldi via Unsplash
Like most real humans, Chat GPT doesn’t really know how the planning system works, although it thinks it does, is plausible to the uninitiated and is going to learn fast.
“Describe the scene at the opening of a planning inquiry in the style of Martin Amis”
“The overcast morning yawned drearily as the austere gates of justice swung open, reluctantly welcoming a procession of concerned citizens, bureaucrats, and legal enthusiasts into the cavernous embrace of the planning inquiry. The venue, a drab municipal hall adorned with faded civic emblems and stained carpeting, echoed with the collective sigh of resignation.
The attendees, a motley crew of disparate interests and insatiable curiosities, shuffled in, each sporting a distinct sartorial display of subdued professionalism. Men in ill-fitted suits, replete with the sullen faces of reluctant labor, mingled with bespectacled women clutching notepads with an air of anticipatory dread. The atmosphere was thick with the scent of worn leather, a pallid reminder of past struggles fought and victories scarce won.
The weary acoustics of the room trembled as the chairman’s gavel thundered, reluctantly arousing the assembled multitude from their communal stupor. A bespectacled figure emerged from the shadows, his furrowed brow betrayed by a sparse crown of graying hair, a testament to the inevitable encroachment of time upon the human visage. He cleared his throat with a noise resembling a desolate gust of wind sweeping through a forgotten corridor, demanding the attention that was reluctantly offered.
Chairman and gavels aside, it’s not going to be long folks (and of course it is already being used for various specific functions – see this piece), so we need to be on top of how it can be used to improve development outcomes and lead to genuine efficiencies, whilst being on guard against its misuse. Could you spot a Chat GPT generated objection letter? This was its response to the request for an objection letter to a proposed solar farm, free and it took about a second. Imagine how it might then be plausibly tweaked and sent, many times over. How are planning officers going to guard against this?
“Subject: Objection to Proposed Solar Farm near [Your Location]
Dear [Recipient’s Name],
I am writing to express my deep concern and objection to the proposed solar farm project in close proximity to my residence [or: the [specific location]] in [City, State]. While I appreciate the growing need for renewable energy sources and acknowledge the importance of solar power in combating climate change, I believe that the current proposed location poses significant issues and may have adverse effects on the surrounding environment and community.
First and foremost, the proximity of the proposed solar farm to residential areas raises concerns regarding potential impacts on the quality of life for residents. The visual impact of large-scale solar panels and associated infrastructure in close proximity to homes could significantly diminish property values and negatively affect the aesthetic appeal of the area. Moreover, the potential glare caused by the reflective surfaces of solar panels could be intrusive and disruptive to residents, impacting their ability to enjoy their homes and surroundings.
Additionally, I am concerned about the potential environmental impacts associated with the construction and operation of the solar farm. The proposed location may be ecologically sensitive, hosting diverse wildlife habitats or fragile ecosystems that could be disrupted or permanently damaged by the installation of the solar panels and related infrastructure. It is crucial to thoroughly evaluate and mitigate these potential ecological consequences before proceeding with the project.
Furthermore, the proposed solar farm could have implications for the local community’s overall well-being. Construction activities may result in noise pollution, increased traffic congestion, and potential disruptions to daily activities. These factors, combined with the potential decrease in property values, may negatively affect the livelihoods and economic stability of the community.
I strongly urge you to consider alternative locations for the solar farm that are more suitable in terms of minimizing the visual impact on residential areas, preserving environmentally sensitive areas, and minimizing disturbances to the local community. It is crucial to involve the affected residents and community members in the decision-making process through open dialogue, public consultations, and comprehensive environmental impact assessments.
I kindly request that you take my objections into serious consideration and review the proposed solar farm project in light of the concerns raised. I encourage you to explore alternative options that prioritize both renewable energy goals and the well-being of the community and environment.
Thank you for your attention to this matter. I trust that you will act in the best interests of the community and ensure that any future renewable energy projects are developed with careful consideration of the concerns raised.
Yours sincerely,
[Your Name]”
I know to us it’s nonsense, no policies no nothing, but if I had been more specific in my request I would have got a more refined draft. And as it stands it’s pretty much par for the course as objection letters go.
Finally, as a bit of fun, what does Open AI’s Dall-E system think that the scene at a planning inquiry might look like?
The participants:
Not so bad really. But what about the solicitor?
He (an algorithmically assumed white male) is pictured faceless, doodling, writing nonsense:
Or the planning officer?
More white males, one strangely missing a finger on his left hand:
The overall lack of diversity of it all is troubling, as is the sheer lazy ease of generating splurge content – without safeguards (which are needed immediately, not at the speed that the planning system usually works) this could be as harmful for the planning system, in terms of submerging it under prolix and irrelevant content, as word processing technology has been. In fact, in Chat GPT I think I have found the real mutant algorithm.
Happy bank holiday all.
Simon Ricketts, 27 May 2023
Personal views, et cetera
A planning inquiry in the style of David Hockney, apparently.
SIMONICITY 