Category: Uncategorized

Permission Incompatibility Not Relevant For Decision Maker – Court Of Appeal In Fiske

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

Girlfriend In A Comma: Why Punctuation, Spelling & Grammar Matter

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:

  1. a medium scale foodstore including only an ancillary element of non-food goods – to supplement limited town centre choice and in turn draw back trade from out of town large format foodstores.
  2. Up to 7,000 sqm of non-food retail space in a range of unit sizes …
  3. Residential uses and uses that enhance the attraction of the town to visitors and as an evening destination …
  4. Creative and imaginative public realm improvements as well as new urban spaces which integrate new development areas with the town’s historic centre and which also incorporate and enhance the River Frome as a feature within the town centre.
  5. 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.”

(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

Second Staircases: Just One Specific Example Of How DLUHC’s Announcements Could Be Improved

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:

  • Confirming the intention to mandate second staircases in new residential buildings above 18m, following confirmation from expert bodies that they support this threshold. This responds to the call from the sector for coherence and certainty. This is a considered and gradual evolution of safety standards, which, when taken with our other fire safety measures and reforms ensures the safety of people in all tall buildings – both new and existing. The government is clear that this new regulation cannot jeopardise the supply of homes by disrupting schemes that have been planned for years. DLUHC will work rapidly with industry and regulators over the summer to design transitional arrangements with the aim of securing the viability of projects which are already underway, avoiding delays where there are other more appropriate mitigations.”

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:

  • What will the specific transitional provisions be so as not to “jeopardise the supply of homes by disrupting schemes that have been planned for years“?
  • Will we have any clarity before the amended Regulations are laid before Parliament?
  • When is the earliest that the amended Regulations will take effect?
  • Should this likely change directly affect decisions on planning applications in any event, given separate operation of the Building Regulations regime? To what extent should planners have to second-guess what may or may not be acceptable under the Building Regulations and the nature of any transitional arrangements? And is stronger guidance needed to encourage authorities to treat positively any subsequent applications to amend permissions if amendments are required to meet Building Regulations changes (and potentially to take into account any consequent impact on viability)?

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

What Does A Planning Lawyer Do?

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?

  • Of course, much non-contentious legal work, including preparing and negotiating planning, highways and other statutory agreements.
  • Give specialist advice in relation to relevant aspects of real estate,  corporate or other corporate transactions.
  • Give advice as to strategy and legal interpretation – sometimes by way of an advice note equivalent to a barrister’s opinion, sometimes iteratively through close ongoing contact with the client and team.
  • Correspond with external parties (not the role of the Bar).
  • Undertake legal audits of draft application and environmental statement submissions in relation to more complex schemes.
  • On the contentious side, a solicitor needs to be on the record for the purposes of litigation and will usually co-ordinate the litigation process for their client , communicating with the court and the other parties and instructing the barrister.
  • For planning appeals and other statutory processes (eg highways, compulsory purchase) the extent of the solicitor’s role depends on the scale and complexity of the project and the wishes of the client – either right at the centre of things as coordinator, or being called upon for specific tasks.

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:

  • Advocacy in the High Court and beyond is the domain of those with a right of audience – barristers and those solicitors who have qualified to have the higher right. In litigation, advocacy is of course the final, most visible, lap – after initial advice has been given, pleadings settled and skeleton arguments prepared.
  • Anyone – lawyer, non-lawyer, barrister or solicitor – can appear as advocate at a planning inquiry, but again the Bar has retained a central advocacy role – a barrister is the natural choice as advocate for cases of any complexity given his or her experience and training. Even where the forum doesn’t call for traditional advocacy – eg hearings and examinations – the barrister can play a valuable role in marshalling and stress-testing the case, evidence and witnesses.
  • Giving advice, whether as to strategy or as to legal interpretation, whether in meetings  or by way of formal opinion.

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:

  • work in seamless and efficient project teams.
  • explain clearly for them our now ridiculously complex planning system and collectively guide them to good outcomes
  • remain professional – people they can trust.

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

Responsible Actors

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

You Can Call Me AI

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.

The Planning System Really Does Carry The Weight Of the World On Its Shoulders

The 50th Oxford Joint Planning Law Conference took place this weekend. It was great to see many of you.

On the first morning, Christopher Lockhart-Mummery KC gave a lovely paper contrasting his recollections of the planning system as it was in 1972 with how it was when he retired from practice last year.

Of course, we can all bemoan the modern-day complexity, but of course one reason for it is the range of regulatory checks and considerations which have been shoe-horned into the system, often for the best of reasons but boy does this system take time to load these days.

The now disbanded Advisory Team for Large Applications had the very apt acronym, ATLAS, who is shown in sculptures as carrying the weight of the world on his shoulders (although this was rather an exaggeration as apparently – this is all real, right? – he only held up the sky – which frankly doesn’t sound so difficult).

Rather than write a proper blog post this weekend, I thought I might simply set out some links to previous blog posts where I have covered matters which have become relevant to the consideration of planning applications since the simplistic system of the 1970s that Christopher nostalgically described. These are just some examples of many. No surprise why the system is more complex now than then.

I could add many more. There are so many public policy outcomes which, for delivery, rely in large measure on our poor creaking planning system. There’s little “red tape” in any of this either. “Simplifying” planning isn’t easy.

Simon Ricketts, 17 September 2022

Personal views, et cetera

When Britain Built Something Big

“When Britain built something big” is the sub-title to Dave Hill’s book Olympic Park, which tells the story of how an Olympic park was created in London’s Lower Lea Valley in time for London 2012. It is a detailed factual account, not just of the politics, planning, infrastructure engineering and deal-making that led up to that event, but of its implications in terms of urban regeneration and legacy. 

I’m interviewing Dave about the book and its themes at 6 pm on Tuesday 30 August 2022 on the audio social-media app Clubhouse, and you’re welcome to listen in here and indeed we’d love to here your own accounts. 

A number of things are striking to me, looking back.

The first is that huge things can be achieved if individuals and institutions collectively grasp a vision and secure the necessary buy-in. At a time when this country had perhaps lost its self-belief in being able to deliver a project successfully and on time, here we were setting ourselves up to fail – but we didn’t. By luck there was a new system of London regional government in place to facilitate London’s bid for the games (Ken Livingstone as mayor, not a sports fan at all but persuaded as to the regeneration potential of a London Games) with the full support (not easily secured by the indefatigable Tessa Jowell) of the Blair government, and with the individual host boroughs, with capable leaders, willing to come together as a Joint Planning Applications Team to determine massively complex planning applications within tight timescales. 

The second is that there are inevitable trade-offs if a project such as the transformation of this huge area of east London was to be achieved by what was an immovable deadline. When London secured the Games, the London Olympic Games and Paralympic Games Act 2006  gave significant powers to unelected bodies, which has continued with the creation of the London Legacy Development Corporation in 2012. Many people’s homes and businesses were the subject of a compulsory purchase order, which was confirmed after a 41 day inquiry and which survived at least three legal challenges in the High Court. Should we have done it? Or should we have let community politics take their course?

The third is that whilst it is important to have the necessary statutory processes and a strategy, so much comes down to problem-solving, creativity and negotiation. Whilst the right calls may have been made in the negotiations necessary with the Stratford City development partners (at times a fragile partnership due to the takeover of Chelsfield during the process), was money wasted in deciding to proceed with a stadium design that did not easily allow for West Ham’s subsequent use – and just how good was West Ham’s eventual deal?

The fourth is that engineering constraints and their lead-in periods can cause headaches – for example the huge commercial, logistical and regulatory challenge of undergrounding electricity lines and removing pylons – achievements which we then utterly take for granted. 

The fifth is the need for cross-party consensus – long-term projects can’t be the punchbag of short-term party politics.  So there was the unholy alliance between Livingstone, expelled from the Labour party, and the New Labour government, both then replaced before the Games themselves by Johnson and the Conservative/Lib Dem coalition and now the approach to various legacy aspects being the domain of Sadiq Khan. 

The sixth is that surely we need to learn from what went well and what perhaps didn’t, and to apply it to the immediate challenges around us: climate change, including renewables and making existing buildings more energy-efficient; and indeed the challenge of delivering a new generation of affordable homes. What more broadly should we learn about how our planning system needs to adapt?

There is so much more to talk about. Do join us, or read the book, or both.

Then do join us again a couple of weeks later for another book club special! At 6 pm on Monday 12 September 2022, we have barrister and broadcaster Hashi Mohamed, to talk about his book, A home of one’s own – his very personal take on the housing crisis, its causes and some possible solutions. Invitation here.

You can RSVP for the events on the clubhouse app via the links so as to be reminded when the event is starting, or just log in when the time comes 

Simon Ricketts, 27 August 2022

Personal views, et cetera

Summer Of LURB

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

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

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

Rant over. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Simon Ricketts, 2 July 2022

Personal views, et cetera

Pic courtesy AARP

A Rest Is As Good As A Change

No blog post again this weekend.

Just to say:

Well done all local election candidates whether you won or lost.

And well done all public affairs consultancies for the updates and analysis as to the changes. But maybe add the Daily Express to your mailing lists next time?

We expect plenty of announcements this week, finally, as to the Government’s intended changes to the planning system.

I’m coiled like a rusty spring.

We’ll be navigating the implications of the Queen’s Speech and expected flotilla of accompanying announcements on Clubhouse at 5.30 pm on Thursday 12 May. Special guests include Catriona Riddell, Nick Walkley, Phil Briscoe and Meeta Kaur. Join us here.

Simon Ricketts, 7 May 2022

Personal views, et cetera