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.
Environmental impact assessment – see eg my 25 February 2022 blog post Two Plugs which referred to the Court of Appeal’s ruling in Finch, the appeal from which is now due to be heard in the Supreme Court
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.
“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
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.
“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.
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.
Current events underline why we must never forget the Holocaust. When it comes to what is now happening in Ukraine at least there is more that we could be doing NOW both for the victims and to seek to bring this dreadful intentional slaughter of innocents to an end.
It is utterly frustrating that the planning permission granted for the construction of the United Kingdom Holocaust Memorial and Learning Centre in Victoria Tower Gardens, next to the Houses of Parliament, has been now quashed due to the failure of the decision maker, and indeed every major participant in the application process, to consider the implications of a local Act of Parliament affecting the gardens, the London County Council (Improvements) Act 1900. For this is the outcome of London Historic Gardens Trust v Minister of State for Housing (Thornton J, 8 April 2022). The court has also published this summary.
The judgment repays reading not just on this point but on the issue which often arises in cases involving heritage aspects – what is the threshold for “substantial harm” as defined in the NPPF?
First, the background…
The Government set up the Holocaust Commission in January 2014 “to examine what more should be done in Britain to ensure that the memory of the Holocaust is preserved and that the lessons it teaches are never forgotten.”
The Commission carried out a consultation process and recommended in January 2015 that a monument be established, vitally with an accompanying learning centre:
“there should be a striking new memorial to serve as the focal point for national commemoration of the Holocaust. It should be prominently located in Central London to attract the largest possible number of visitors and to make a bold statement about the importance Britain places on preserving the memory of the Holocaust.”
The UK Holocaust Memorial Foundation was created and the then prime minster announced on 27 January 2016 that Victoria Tower Gardens would be the location.
As summarised by the judge:
“Victoria Tower Gardens has considerable cultural, historical and heritage significance. It is located on the north bank of the River Thames immediately south of and adjacent to the Palace of Westminster and Black Rod Garden. It is a Grade II Registered Park and Garden. It contains within it three listed structures; the statue of Emmeline Pankhurst (Grade II listed), the statue of the Burghers of Calais (Grade I listed) and the Buxton Memorial Fountain (Grade II* listed). The site has contained a garden for public recreation since approximately 1880.”
Unusually, Secretary of State made the application for planning permission, in January 2019 (this would have been the late James Brokenshire).
The proposals have always been surprisingly controversial. When Westminster City Council delayed in determining the application, rather than being appealed on the basis of non-determination, the Application was procured to be called in but due to the Secretary of State clearly being “off side”, handling arrangements were arrived at (after previous litigation by the London Historic Parks and Gardens Trust) that resulted in the minister of state for housing being the decision maker.
The proposals were approved on 29 July 2021 after a long inquiry.
The decision was challenged by the Trust on what became three grounds when the case came to a full hearing before Thornton J. The grounds before her were as follows:
“Ground 1: Harm to heritage assets
The Planning Inspector and Minister applied the wrong legal test to the issue of whether there will be ‘substantial harm’ to the heritage assets within the Gardens. The correct application of the test would have led inevitably to the conclusion that the harm to the significance of the Buxton Memorial was substantial and which would have led in turn to a very different test for the acceptability of the proposal.”
“Ground 3: The London County Council (Improvements) Act, 1900”
“Ground 4: error of law in relation to alternative sites
The Inspector erred in law in considering that in order to attract significant weight, the merits of any alternatives must be underpinned by a good measure of evidence demonstrating their viability and credibility as such an alternative.”
The issues arising were as follows:
“1) Did the inspector err in his assessment of harm to the historic environment of the Gardens; in particular the setting of the Buxton Memorial?
2) Does the London County Council (Improvements) Act 1900 impose a statutory prohibition on locating the Memorial in the Gardens?
3) Did the inspector err in his treatment of alternative sites for the Memorial?”
That 1900 Act ground had been considered unarguable at permission stage in the proceedings but the renewed application for permission on that ground had been allowed by Thornton J to be dealt with on a rolled-up basis as part of the main hearing. The twists and turns of litigation never fail to amaze. This proved to be the decisive issue in the whole case. As indicated by the judge:
“In his application to renew, Mr Drabble focussed on section 8(1) of the 1900 Act rather than section 8(8) which had been the focus of submissions before the Permission Judge. As refined by Mr Drabble, the ground is arguable, and I grant permission. Given the refinements to the Trust’s case as developed during oral submissions at the hearing, including the production of the Local Law (Greater London Council and Inner London Borough) Order 1965, I considered it appropriate (and of assistance to the Court) to allow the parties the opportunity to make short written submissions after the hearing.”
So what was this killer point?
By way of brief interjection, the outcome hasn’t gone down well with one previous Secretary of State at least:
Section 8(1) reads as follows:
“(1) “The lands lying to the eastward of the new street described in this Act as consisting in part of widenings of Abingdon Street and Millbank Street which is in this section called “the new street” and between the said street and the new embankment wall shall be laid out and maintained in manner herein-after provided for use as a garden open to the public and as an integral part of the existing Victoria Tower Garden subject to such byelaws and regulations as the Commissioners of Works may determine”
The judge’s interpretation:
“On its ordinary and natural meaning, Section 8(1) of the 1900 Act imposes an enduring obligation to lay out and retain the new garden land for use as a public garden and integral part of the existing Victoria Tower Gardens. It is not an obligation which was spent once the Gardens had been laid out so that the land could be turned over to some other use or be developed or built upon at some point after it had been laid out whenever it suited those subject to the obligation”
Her conclusion was reinforced by detailed consideration of pre-legislative material leading up to the 1900 Act.
Did this restriction on use of the gardens matter, being separate from planning legislation? In her view, yes:
“the 1900 Act is a material consideration because of the impediment it presents to delivery of the Memorial in Victoria Tower Gardens and the importance attached by the Inspector to the delivery of the Memorial in the lifetime of Holocaust survivors.”
So the case succeeded on ground 3, and also partly therefore on ground 4:
“I have concluded in relation to Ground 3 that, section 8 of the 1900 Act imposes an enduring statutory obligation to maintain Victoria Tower Gardens as a public garden, This is a material consideration in the context of the Inspector’s emphasis on the importance of the need to deliver the scheme within the lifetime of the Holocaust survivors. The Inspector considered the question of alternative sites and the implications of their deliverability without assessment of the deliverability of the location in Victoria Tower Gardens in the context of the issues now presented by the Court’s construction of the 1900 Act. In the circumstances, as a consequence, to this extent, Ground 4 succeeds.”
What of ground 1, whether the correct test of “substantial harm” was used? I’m going to pass the keyboard to my Town Legal colleague Tom Brooks to explain:
“Ground One sought to challenge the primacy of that long favoured quote of heritage consultants seeking to duck the NPPF test of substantial harm, from Bedford BC v Secretary of State for Communities and Local Government (High Court, 2012), paras 24-25:
“for harm to be substantial, the impact on significance was required to be serious such that very much, if not all, of the significance was drained away […] an impact which would have such a serious impact on the significance of the asset that its significance was either vitiated altogether or very much reduced.”
In arguing that there was no substantial harm to the Grade II* listed Buxton Memorial at the inquiry, the Secretary of State (as applicant) had relied on this definition from Bedford. In making the same argument, Westminster City Council had preferred the Planning Practice Guidance definition that substantial harm “seriously affects a key element of special architectural or historic interest”.
The ground of challenge put to Thornton J, that the inspector had erred by adopting the Bedford test, failed.
Thornton J found that the references to Bedford in the inspector’s heritage analysis “are no more than the Inspector confirming, or cross checking his analysis, conducted by reference to his view of the test as the ‘serious degree of harm to the asset’s significance’, by reference to the case advanced before him […] This is unimpeachable” (para 46)
The inspector’s approach was thus “entirely consistent” with the approach to the NPPF test that had been stipulated in City & County Bramshill Limited v Secretary of State (Court of Appeal, 2021), summarised by Thornton J as follows:
“The question whether there will be substantial harm to a heritage asset is a matter of fact and planning judgment and will depend on the circumstances. The NPPF does not direct the decision maker to adopt any specific approach to identifying harm or gauging its extent beyond a finding of substantial or less than substantial harm.” (para 47)
The judgment helpfully and eloquently goes on to put to bed the use of Bedford as a test of substantial harm.
The references to the draining away and vitiating of significance are simply Jay J’s “encapsulation of the Inspector’s application of the test of substantial harm” (para 51) in that specific case, and nothing more.
Crucially then:
“[The Bedford] judgment does not import a test of ‘draining away’ to the test of substantial harm […] a word like ‘substantial’ in the NPPF means what it says and any attempt to impose a gloss on the meaning of the term has no justification in the context of the NPPF. […] It is not appropriate to treat comments made by a Judge assessing the reasoning of an individual decision maker, when applying the test of ‘substantial harm’ to the circumstances before him/her, as creating a gloss or additional meaning to the test.” (para 53)
Cue hasty edits to heritage impact assessment methodologies across the land.”
Thanks Tom. Now it’s back with me, just to say that this week’s clubhouse session will be at 5pm on Wednesday 13 April 2022 and we will be examining the government’s Energy Security Strategy, with Ben Lewis (Barton Willmore), Rachel Ness (Clearstone Energy), David Hardy (Squire Patton Boggs) and my Town Legal colleagues Duncan Field and Nikita Sellers. Join us here.
First, a reminder about the Town Library weekly Planning Court updates. You can still register for free to receive a weekly summary of all judgments handed down from the Planning Court (and on appeal from the Planning Court) (those following a final hearing that is – wouldn’t it be great to have permission-stage orders as well…?). There is an on-line index that goes back 4 years and our internal index goes back to the creation of the court in 2014.
“The Court of Appeal has upheld the judgment of the High Court on the question of whether it was unlawful for Surrey County Council not to require the environmental impact assessment (“EIA”) for a commercial crude oil extraction project to include an assessment of the impacts of greenhouse gas emissions resulting from the eventual use of the refined products of that oil as fuel.
The High Court had found that, while it was common ground that an environmental statement should assess both the direct and indirect effects of the development for which planning permission was sought that are likely to be significant, “indirect effects” must still be effects which the development itself has on the environment. It noted that the EIA process was concerned with the use of land for development and the effects of that use; it was not directed at the environmental effects which resulted from the use of an end product.
The Court of Appeal agreed that the Council had not acted unlawfully but while the High Court considered that in the circumstances of this case, the assessment of greenhouse gas emissions from the future combustion of refined oil products at the development site was, as a matter of law, incapable of falling within the scope of the EIA for the planning application, the Court of Appeal held that the existence and nature of “indirect” effects would always depend on the particular circumstances of the development under consideration and that establishing what should be included in an environmental statement was for the relevant planning authority. The need for a wider assessment of greenhouse gas emissions may sometimes be appropriate; what needs to be considered is the degree of connection between the development and its putative effects.
In this case, though the project itself was confined to the construction and use of a well site for the commercial extraction of crude oil for onward transport to refineries, the eventual combustion of the refined products of the oil extracted at the site was “inevitable”, not merely “likely” or “possible”. This being so, the Court of Appeal decided that it was for the Council to establish whether, bearing in mind the intermediate stages which would have to occur before combustion could take place, the greenhouse gas emissions which would be generated in that way were properly to be regarded as “indirect” effects of the proposed development. It was not the court’s role in a claim for judicial review to substitute its own view for the planning authority’s on a question of this kind.”
Given that I am not responsible for the summaries, I think I can say that it really is an amazing resource to receive week by week.
Secondly, a reminder about our clubhouse Planning Law Unplanned event happening from 6 to 7.15 pm this Tuesday, 1 March 2022. Did you hear Hashi Mohamed’s radio 4 documentary, Planning, Housing and Politics on 21 February 2022? We thought it would be great to unpack some of the themes, and perhaps some things which weren’t covered, in a longer session. Hashi and some of those who spoke on the programme will be joining us. Do come along to listen or make your views known. Link to app and event here (and there are recordings of many of our recent events available to listen to on the app).
This uncomfortable feeling of in-betweenness is familiar to anyone engaged with the planning system in 2021.
No real progress on planning reform, on local government reform (save for now being branded as “levelling up”) or on reform of EU-derived environmental legislation.
All year we have all been running hard on our individual hamster-wheels, working to each short-term deadline within these elongated processes. The policy twists and turns, to which our work has to respond, have been as dizzying as ever.
There has invariably been something new to write about as I’ve approached the end of the week and thank you all as ever for continuing to read and provide your feedback.
The four most popular Simonicity posts this year were:
I’ve already mentioned Sam’s 50 Shades of Planning. Clenched fist in solidarity as well to Zack Simons’ #Planoraks blog and to Nicola Gooch’s LinkedIn blog posts. I often read what they’ve written and think that I can probably get away that weekend with just posting a link to it and “I agree”.
Zack, Nicola and so many of you have also been generous with your time in appearing on or tuning into the weekly Planning Law Unplanned rooms that I started on the clubhouse app in February, aided and abetted of course by Paul, Charlie, Caroline, Victoria, Jonathan, Jo, Jon, Spencer and George. I have been keen to give a voice to as many people as possible and, through being fleet of foot, to use the slots to explore themes in a way which isn’t possible on other platforms.
The clubhouse app first allowed sessions to be recorded in November. Since then these have been the most popular (do give them a listen):
We haven’t yet decided whether we’ll have a session on 4 January but at 6 pm on 11 January we have a fascinating discussion lined up: “MAKING DRAMA OUT OF A CRISIS: theatre vs covid”, featuring Broadway theatre producer (and ex US environmental lawyer) David Siesko; chair of Shakespeare’s Globe (and former planning lawyer) Margaret Casely-Hayford CBE, and theatre manager/Theatres Trust cultural policy manager Tom Stickland. Link to app here.
The Environment Act 2021 was born on 9 November 2021, over 22 months after the first version of the Bill received its first reading on 30 January 2020 – a gestation period equalled in the animal kingdom only by the African elephant.
One of the less controversial but potentially most useful elements of the Act is Part 7, namely the introduction of a mechanism for land owners to enter into “conservation covenants”. What is this new beast?
In simple terms, a conservation covenant is a private voluntary agreement between a land owner and a local authority or other responsible body designated by the Secretary of State with commitments given by the land owner, enforceable against successors in title, to do or not do specified things on the land that have a “conservation purpose”.
The Law Commission first recommended in a 2014 report that this regime be introduced in legislation, given that existing legal mechanisms each have significant legal and/or practical limitations, for instance planning obligations need to fall within the types of commitment specified in section 106(1) of the Town and Country Planning Act 1990 and regulation 122 of the CIL Regulations will often be a constraint on the authority’s ability to take the obligation into account in its decision making; restrictive covenants more generally carry with them the constraint of requiring the party with the benefit of the covenant to have an interest in land that will take the benefit of the covenant (the “dominant tenement” as any legal fule kno) and with the covenant having to be a negative obligation in order to be automatically enforceable against successors.
The Commission gave three examples of how conservation covenants might be used:
• “protecting woodland over the generations”
“Example: The owner of an extensive family estate, much of which is forested and used by the public for hiking, intends to leave the land to her children. She wants to ensure that the forest is maintained and that public access continues, but she is not sure that her children – or future generations – would share those priorities”
• “selling heritage property”
“Example: A heritage group has invested funds in buying and restoring a Tudor house. The organisation wishes to sell the property, but wants to ensure that the work it has undertaken, and the heritage value of the property, is preserved.”
• “”protecting a biodiversity offsetting site”
“Example: A local planning authority is faced with a planning application for an affordable housing development. The proposed development site is a wild flower meadow. If the development were to go ahead the meadow would be destroyed completely. In this instance the planning authority is willing to grant planning permission, provided the damage caused to the meadow is offset by the creation and long-term maintenance of a similar site elsewhere.”
DEFRA then carried out a consultation in 2019. Its subsequent response to the consultation process confirmed that it would proceed with legislation, by way of the Environment Bill, and would develop guidance.
The provisions in Part 7 of the Act the provisions do indeed give effect to what was proposed. For a good summary I recommend that you look at the explanatory notes to the Act (pages 132 to 141). Some highlights from that summary:
• It must be apparent from the agreement that the parties intend to create a conservation covenant.
• Any provision must be of a “qualifying kind”, which can take one of two forms. “First, it may require the landowner to do, or not to do, something on specified land in England, or require the landowner to allow the responsible body to do something on such land. Second, it may require the responsible body to do something on such land.” The agreement can also include ancillary provisions.
• The land owner must have a “qualifying estate” in the land – namely a freehold interest or a leasehold estate of more than seven years.
• A conservation purpose “extends to the natural environment of the land, such as plants and animals and their habitats; the land’s natural resources, such as water on the land; the land as a place of archaeological, architectural, artistic, cultural or historic interest; and the setting of the land. The reference to setting provides for the protection of land around a conservation site, which may affect its conservation status. For example, the architectural or artistic value of a country house could derive in part from the landscape in which it is set.” This is important! Conservation covenants are not just about nature conservation but can also be used in relation to, for instance, heritage conservation (see back to that second example from the Law Commission report).
• Bodies (including local authorities) need to apply to the Secretary of State to be designated by the Secretary of State to be a responsible body. If not a local body, the applicant body “will, additionally, have to satisfy the Secretary of State that at least some of its main purposes, functions or activities relate to conservation”. Criteria will need to be published by the Secretary of State. (Interesting that local authorities are not automatically designated).
• A conservation covenant is a local land charge and once registered is effective against subsequent owners of the land. It has indefinite effect unless otherwise stated in the agreement (and subject to the length of the relevant lease if entered into by a leaseholder). Enforcement will usually be by way of seeking an injunction or order for specific performance. It can be discharged or modified by agreement or by application to the Upper Tribunal.
• Section 135 (1) “gives the High Court, the county court or the Upper Tribunal, on application of any person interested, the power to make a declaration as to the validity of a conservation covenant, whether land is subject to an obligation under a conservation covenant, who is bound by or has the benefit of such an obligation, and the true construction (that is, meaning) of such an obligation. It will be for the court or the Upper Tribunal to decide whether an applicant has sufficient interest to make an application. The power to make a declaration extends to any agreement or order that modifies a conservation covenant. A person might seek a declaration under subsection (1) in circumstances where they needed to know the status of a conservation covenant – for example, in order to resist an action enforcing a breach or because the land was wanted for a different use.”
There is no news yet as to when the Regulations will be made to bring Part 7 into force. The biodiversity net gain provisions are likely to be a couple of years away from being switched on. Let’s hope that conservation covenants are not that far off, although of course we do need some good guidance to accompany what could prove to be a well-used procedure, because the opportunities for use of conservation covenants are wide: commitments to provide biodiversity net gain off-site are an obvious example but think also about commitments in relation to offsetting to address nitrate, phosphate or water neutrality for instance, as well as commitments which might previously have involved transferring land to a conservation or heritage group – the land will now be able to be retained with long term commitments given by way of a CC.
This week’s Clubhouse session (6pm 7 December) will be a descent into the strange world of planning enforcement. Whatever your perspective, Scott Stemp and Nicola Gooch will be leading us through the murky depths. Stories welcome. Link to app here.
Live arts should be the throbbing heartbeat of any city.
Cultural opportunities, the creative arts and a vibrant night-life are obviously a big reason why those who are the basis of the local economy and its growth, particularly young professionals, choose to put down their roots in a place.
Venues and studios for independent creative arts – for bands, performers and artists to play, rehearse, create – are the petri dish from which something grows that comes to define a city, that may become a mainstream business, employer and exporter in its own right (and we are increasingly in a world where the creative arts and tech are intertwining, making this even more likely).
I’m not talking of dead cultural artefacts, Government money for another Beatles attraction in Liverpool, I’m talking about the between-spaces, the meanwhile-uses, the forgotten-buildings, the spaces-set-aside-by-enlightened-owners – where (at low cost and with a looser set of constraints), from apparently unpromising seeds, flowers bloom.
This is personal for me – it may be for you too. I grew up in Southampton and it was all about the local music venues – seeing people like me 12 feet away on a foot-high stage, then trying it myself, amateur hour or what? – and then about choosing London as my university town, yes for the music and culture – got to confess it wasn’t at that point for the employment opportunities. Where I then stayed, for decades.
As I’ve gradually moved away in time and distance from all this, I’ve realised more and more how important grassroots/independent culture is – not just in the way that it provides a channel for young people to express the raw creativity that we all have before it’s schooled and worked out of us and which often is the most powerful (for being honest) form of artistic expression – but also how important it is for cities and towns themselves. Nowhere should end up as a husk, an artefact, a collection of once interesting buildings and not much else.
We’re going to have a discussion about all of this at a Clubhouse session at 5pm on Monday 1 November, at which I’m so glad that I will be joined by people who know much more than me about how to make culture thrive in cities. Clara Cullen is venue support manager at the Music Venue Trust, which exists to help protect, secure and improve grassroots music venues across the UK. Tom Clarke is national planning advisor at the Theatres Trust, which seeks to protect the future of live performance (of all kinds), by protecting and supporting theatre buildings which meet the needs of their communities (he’s also a live music nut). Stacey Adamiec is a strategic place maker, working with agents, landlords and authorities to create flexi and creative spaces. And most poignantly for me, we have Richard Williams. Richard at one time was leader of Southampton City Council but this is nothing to do with that. In 1981 he released a compilation album of tracks recorded by Southampton bands, called City Walls. It was my last year at home before heading to London – I loved that album as a snapshot in time and place. He then wrote a book about the process of getting it together, “A Curry With John Peel”, and then, this year, 40 years on (40 years!) he released another album of tracks by today’s Southampton bands, City Walls 2. To compare and contrast is fascinating. I am so looking forward to the discussion and very much hope that you can join us – details at the end of this blog post.
It’s been tough for grassroots venues. With conflicting needs for land, given the understandable pressure for brownfield sites to secure housing and employment development; with less and less public funding, nationally or locally, and then in this recent time of pandemic, fear and lockdown.
But in recent years there have at least been some signs of light.
The “asset of community value” designation process introduced by the Localism Act 2011 has helped many venues (eg Heaven, Brixton’s Club 414, Guildford’s Boileroom, the Birds Nest in Deptford, Half Moon in Herne Hill and the After Dark club in Reading to name just a few) but of course the designation ultimately is more of a nudge than providing any absolute protection.
To have the “agent of change” principle included within national planning policy back in July 2018 was a big step forward. In the current NPPF this is paragraph 187:
“Planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (such as places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. Where the operation of an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or ‘agent of change’) should be required to provide suitable mitigation before the development has been completed.”
Last year, in response to the pandemic, work by the Theatres Trust and others secured two important additional protections for concert halls, venues for live performance and theatres:
• A ministerial statement on 14 July 2020 confirming that venues should be protected, at least for a temporary period, against land owners seeking to argue lack of viability based on the then precarious financial position that many were in:
“The Government recognises that the temporary closure of theatres, concert halls and live music performance venues due to Covid-19 has the potential to lead to permanent loss of important cultural and economic assets, and is determined that otherwise viable facilities are not lost forever.
The purpose of this Written Ministerial Statement, is to set out how local planning authorities should approach decision-making to prevent the unnecessary loss of these venues. With immediate effect, local planning authorities should have due regard to their current circumstances when considering whether to grant planning permission for a change of use or demolition of a theatre, concert hall or live music performance venue that has been made temporarily vacant by Covid-19 business disruption.
Where an alternative use or demolition for a long-term vacant theatre, concert hall or live music performance venue is proposed, local planning authorities should consider the application in the normal way. The Theatres Trust is a statutory consultee under the Town and Country Planning (Development Management Procedure) (England) Order 2015 (S.I 2015/595) for applications seeking to develop any land where there is a theatre and will have an opportunity to comment on any application relating to theatres.
This policy remains in place until 31 December 2022 unless superseded by a further statement.”
• A change to the General Permitted Development Order on 9 November 2020, meaning that planning permission is now needed for their demolition, in the same way as had previously been introduced for pubs.
I’ll leave others to comment on whether the measures in this week’s Autumn Budget and Spending Review were sufficient but obviously there were various announcements which are potentially relevant:
• “£1.7 billion worth of projects to upgrade local infrastructure through the first bidding round of the £4.8 billion Levelling Up Fund”
• “the first 21 projects to benefit from the £150 million Community Ownership Fund – which will help communities across the UK protect and manage their most treasured assets. This investment puts community priorities at its core and will improve the local infrastructure crucial to everyday life, such as transport and town centres.”
• “Tax reliefs for museums, galleries, theatres and orchestras will further support the cultural life of towns and cities across the UK”.
• “a new temporary business rates relief for eligible retail, hospitality and leisure properties for 2022-23. Eligible properties will receive 50% relief, up to a £110,000 per business cap”
• “funding the £800 million Live Events Reinsurance Scheme”
The Government’s long-awaited Levelling Up White Paper will apparently provide additional proposals. I’m conscious that in many ways this shouldn’t all be about the Government, whose most important role may simply be to “do no harm”. There are an increasing number of important voices and organisations – aside from the Music Venue Trust and Theatres Trust and many other groups, in London of course since 2016 Amy Lamé has been our first “night czar” and able to cast a light on important underlying issues – including the safety of women out at night, and the return of the night tube (from 27 November).
But what more do we need to see, across the country (and in towns as well as cities)?
Do join us at 5pm on Monday – we can chew over all of this, led by our special guests, but hopefully share our own stories about how important grassroots live venues and indie city culture more generally are/have been for us, our families and communities. Just talking about the music is also fine! Link to app here.
The blog posts, clubhouse events, any webinars you might have sat through in desperation through the last 18 months, they are all free, no charge.
Weirdly enough, planning lawyers just love talking about planning law.
Why did we become lawyers? Not so weirdly, but maybe we don’t talk about it enough, it wasn’t just for the sheer joy of sometimes winning an argument, completing a cryptic-crossword-puzzle of an agreement or working out what some statutory provision actually means. It wasn’t just because for us in the private sector of course there’s the money. It was because, maybe just a bit, maybe sometimes forgotten in the thrill of the CIL Regulations, at the root of it all we know that…
law matters.
It’s the law that protects those who find themselves homeless through no fault of their own, in a financial tangle not of their own making, discriminated against, exploited or needing legal protection from those around them.
And if you have a problem like that, you don’t need a well-paid planning lawyer, you need a proper hero of a lawyer, often just working as an unpaid volunteer, within a law centre or pro bono agency.
My ask is that, if you have got any value out of any of this stuff – the blog posts, the on line events – in all conscience please do consider clicking on this link and donating £10, or whatever you think fit, to the London Legal Support Trust. It’s never been more necessary.
I’m doing the London Legal Walk on Monday with 22 colleagues. 10 km is no big deal as an endurance event, this is no marathon but it’s still a big deal in terms of the hundreds of thousands of pounds that it raises. In previous years there have been 15,000 or so lawyers taking part. Perhaps a good afternoon to stay away from EC4.
We are walking with the Lord Chief Justice and thousands of lawyers to raise funds for the London Legal Support Trust which funds Law Centres and pro bono agencies in and around London.
Two-thirds of the UK population don’t know how to get legal advice and 14 million people who live in poverty can’t afford to pay for it. The London Legal Walk raises vital funds to ensure access to justice for some of our communities’ most poor and vulnerable people.
Your support is needed now more than ever with the long-term challenges brought on by the Covid-19 pandemic. Reduced funding in the charity sector means advice agencies are doing all they can to meet rising need despite a drastically restricted income.
The event supports over 100 legal advice agencies in London and the South East. We know that these agencies do a fantastic job in preventing homelessness, resolving debt problems, gaining care for the elderly, fighting discrimination and exploitation.
Please sponsor our walkers as generously as you are able.
Many thanks for your support.
Sorry that there’s no planning law in this post. More round the corner I’m sure! And be sure to tune into Clubhouse at 6 pm this Tuesday 19 October 2021 , when Charles Banner QC will be leading a session on all things Hillside – it’s been almost a year since the Court of Appeal’s judgment. Now that the dust has settled (has it?) and while we still wait to see whether the Supreme Court will grant permission to appeal, what are its practical implications? Link to app here.
Simon Ricketts, 15 October 2021
Personal views, et cetera
Extract from photograph by Craig Whitehead, courtesy Unsplash
SIMONICITY 