Imagine Being In A Constant State of Twixmas

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.

In the meantime, we have all been experiencing slower decision making on the part of local planning authorities (Planning consents issued within statutory 13 weeks fall to lowest levels since 2016 (Michael Donnelly, Planning Resource, 20 December 2021)), plan-making has slowed (with spurious excuses on the part of some authorities it must be said – Why the PM’s suggestion that greenfield housebuilding is unnecessary could further delay councils’ plan-making (David Blackman, Planning Resource, 4 November 2021)) and the Planning Inspectorate’s statistics have worsened (Number of appeals cases on PINS’ books rises again but decision numbers increase (Michael Donnelly, Planning Resource, 22 December 2021)). Sam Stafford’s 50 Shades Of Planning 14 December 21 blog post Life On The Front Line is unmissable reading, with its first hand accounts by local authority officers faced with an unprecedented resourcing crisis. I don’t care what our government department is called – it needs to be reading the dashboard and acting accordingly.

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:

1. Beautiful Day (30 January 2021)

2. I’m Sorry I Haven’t A CLEUD (12 June 2021)

3. Plug Pulled On Local Authority Meetings (26 March 2021)

4. Sad When Our Planning System Is Media Laughing Stock (10 September 2021).

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):

1. Zack Simons and Kate Olley on the Tulip appeal decision and the High Court ruling in Sage respectively

2. Catriona Riddell and other guests on the County Councils Network “Future of Strategic Planning” report

3. Scott Stemp and other guests on the strange world of planning enforcement

4. Many of my colleagues in “START ME UP: How Town Legal started up – and why”

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.

Here’s to 2022.

Simon Ricketts, 30 December 2021

Personal views, et cetera

What Are Conservation Covenants?

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.

(Of course there has since been significant progress in relation to the principle of biodiversity net gain – see the provisions in Part 6 of the Act summarised in my 2 October 2021 blog post Ecology By Numbers: Biodiversity Net Gain In The Environment Bill).

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.

Simon Ricketts, 3 December 2021

Personal views, et cetera

Extract from photo by Hu Jiarui , courtesy Unsplash

To The Centre Of The City, In The Night

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.

Simon Ricketts, 28 October 2021

Personal views, et cetera

Extract from photo by Sebastian Ervi , courtesy of Unsplash.

For All The Posts I’ve Blogged Before…

There’s now an ask.

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

How Long Has This Been Going On?

Time is money. Time is unmet needs. Time is unrealised public benefits.

I just wanted to capture some of the current, frankly depressing, data that is out there on application and appeal timescales.

The purpose of this post is to underline that there is a significant problem to be addressed. What to do about it will be for another post – there is certainly much that can be done that does not require (1) legislation (2) additional resources or (3) any procedural shortcuts.

Applications

A piece from yesterday’s Planning daily online: Council signs off 2,380-home urban extension almost four years after committee approval (£). Four years is certainly going it some but I can confirm from constant first-hand experience how difficult it can be to move a project from resolution to grant to permission at any speed. The larger or more complex the project, the longer those negotiations over the section 106 agreement and associated aspects can end up taking.

My colleague Lida Nguyen has been looking at the position in London. She has looked at all applications for planning permission which were referred to the Mayor between 3 January and 11 December 2020, so applications of potential strategic importance as defined in the Mayor of London Order 2008 and, for those which were then approved by the relevant borough (without intervention by the Mayor or secretary of State), she has looked at the average time that the application took from validation to the borough’s resolution to approve and from the borough’s resolution to approve to permission being issued. Discarding a few anomalous cases, this left 88 to be analysed.

In my humble view the statistics are appalling, but not surprising:

Application submission to resolution to approve

Median: 228.5 days

Mean: 269 days

Resolution to approve to grant of permission

Median: 218.5 days

Mean: 259 days

It’s rather deflating for applicants and (when you stand back from the detail) surely absurd that resolution to grant in reality only marks the halfway point to a permission in relation to significant projects in London. Wouldn’t it be a start for boroughs, the Mayor and those acting for applicants to set a target of halving each of those figures and agreeing the necessary steps to achieve that reduction?

Appeals

My 25 May 2019 blog post Pace Making: Progress At PINS reported on Bridget Rosewell’s recommendation, adopted by the Planning Inspectorate, that inquiry appeals decided by an inspector (i.e. not recovered by the Secretary of State) should be decided within 24 weeks of receipt and that where the Secretary of State is to be the decision-maker, inspectors’ reports should be submitted to the Secretary of State within 30 weeks of receipt of the appeal. Initial progress was really impressive – until the first lockdown struck in March 2020. After a slow start (see my 2 May 2020 blog post There Is No E In Inquiry), PINS of course eventually, to the massive credit of all involved, embraced virtual hearings, inquiries and examinations and the risk of an impossible backlog was averted. However, it is clear from the latest Planning Inspectorate statistical update (19 August 2021) that there is still much work to do:

“The mean average time to make a decision, across all cases in the last 12 months (Aug 20 to Jul 21), was 27 weeks. The median time is 23 weeks.

The median time to decide a case decreased by 0.6 weeks between June and July 21, with the median being 21.4 weeks.

Median timeliness by procedure type is shown in the summary table below.

Performance since April 21 against the median measure has only varied by 0.7 weeks, between 21.4 weeks and 22.1 weeks. Performance had been improving between November 20 and March 21. For inquiries, in the last two months, cases have taken longer to decide as a result of very old enforcement inquiry cases being decided.

Enforcement decisions made in the last 12 months had a median decision time of 34 weeks. Looking at the annual totals, the median and mean time to decision for specialist decisions have been broadly the same as for enforcement decisions, and longer than the median for planning decisions. Since February 21 there has been a change in this trend, with Specialist cases being quicker than Enforcement.

The median time for planning appeals decided by inquiry under the Rosewell Process over the 12 months to July 21 is 35 weeks. This is quicker than other types of casework decided by inquiry.

Whilst the extent of statistical information provided these days is welcome, it is difficult sometimes to track the figures through the different tables so as to work out what the likely timescale outcome for a prospective appellant will turn out to be. I have also looked in vain within the statistics for any information as the time being taken between appeal receipt and validation – a traditional black hole when it comes to appeal timescales. I’m also struggling to see any breakdown as to what the “Rosewell” inquiries were (35 weeks average) as compared to inquiries overall (79 weeks!).

That overall 27 weeks average is deceptively encouraging for anyone looking at anything other than a written representations appeal. Because those appeals make up 95% of the total of course they massively skew the mean figure. But even then, although not reflected in these statistics, my own anecdotal impression is that validation of appeals which proceed by way of written representations or hearing is very slow indeed, raising a large question mark over the overall statistics. Possibly something to do with the focus on Rosewell inquiry appeal targets. Am I being unfair? What solid information on this is there out there? If there isn’t any, why not??

The Planning Inspectorate Annual Report and Accounts (July 2021) contains further statistical information, with tables such as these looking back at the changing position over the last five years:

In order to meet Rosewell targets, surely on that last table the 90th percentile needs to come down from 66 weeks to 24 weeks – and to be measured from receipt of appeal rather than validation?

Again, as with timescales for major applications in London, with appeal inquiries, surely we are looking at the need to more than halve current timescales?

All tables above have been taken from PINS documentation, for which thanks.

Simon Ricketts, 20 August 2021

Personal views, et cetera

Planning Law Unplanned is having a summer break this week, before returning at 6pm on Tuesday 31 August for somewhat of a BECG/DP9 special, London Elections 2022: Politics Meets Planning. Join the club here for notifications of this and future clubhouse Planning Law Unplanned events.

Photograph by Ben White on Unsplash

Stephenicity

There will be no blog post this weekend, in memory of Stephen Ashworth.

I commend his Dentons partner Roy Pinnock’s LinkedIn post and the many wonderful comments it elicited.

Stephen – if only we could all cut through the nonsense like you could. You were the one I looked up to, always did.

My condolences to Stephen’s family and to his colleagues.

Simon

30 April 2021

Court Costs, Inquiry Costs

Jessie J is no judge and when it comes to litigation costs “forget about the price tag” is poor advice.

Aarhus cost caps

I last blogged about Aarhus Convention cost capping in my 22 June blog post No Time To Be 21: Where Are We With Aarhus Costs Protection? The detail is in that blog post but basically the regime allows a potential claimant in many planning and environmental cases to cap exposure to the other’s side’s costs (if the claim fails) to (subject to case by case variations) £5,000 for an individual and otherwise £10,000. As a quid pro quo, if the claimant succeeds, the claimant can only recover (subject to case by case variations) £35,000 from the other side towards its costs.

A big question, unanswered until this month, was whether these amounts are inclusive or exclusive of VAT. This only matters if the party seeking to recover the costs is not VAT-registered and cannot recover its VAT. But it matters a lot to most individuals and campaign groups.

The issue was decided following written submissions in R (Friends of the Earth) v Secretary of State for Transport (Court of Appeal, 13 January 2021). The background doesn’t matter much but is odd – Friends of the Earth were one of the parties in the Heathrow cases that won in the Court of Appeal against the Secretary of State for Transport, but the case only proceeded to the Supreme Court because interested party Heathrow Airport Limited appealed. Despite the Court of Appeal’s ruling being overturned, Secretary of State for Transport remained on the hook for Friends of the Earth’s costs from the Court of Appeal and, before then, the Divisional Court.

The relevant Aarhus Convention based costs order that had previously been made by the Court of Appeal in the main proceedings was:

The Defendant is to pay the costs of the Claimant in the Divisional Court and in this Court, subject to detailed assessment and a cap of £35,000 in respect of the costs in the Divisional Court, and a cap of £35,000 in respect of the costs in this Court.”

Friends of the Earth submitted that this meant they were due a contribution of £70,000 towards their costs, as well as the VAT element, i.e. £84,000. (Incidentally this is the express statutory position in Northern Ireland – in England and Wales the Civil Procedure Rules are silent on the issue). The Secretary of State submitted that the cap was inclusive of any VAT element.

The Court of Appeal sided with the Secretary of State for four reasons:

“First, that is the natural meaning of the words used in those provisions. The figures are set out as absolute amounts, without qualification.

Secondly, this construction is supported by the history of the consultation exercise and the response to it by the Government in the process which led up to the enactment of CPR 45.43.

Thirdly, it does not seem to us that this would impede or frustrate the implementation in domestic law of the Aarhus Convention. That Convention simply requires that the costs of environmental litigation such as this should not be prohibitive. It does not require a contracting State to specify a particular ceiling, still less to state whether it is inclusive or exclusive of VAT.

Fourthly, the fact that the regulations applicable in Northern Ireland expressly provide for the ceilings to be exclusive of VAT does not assist FoE. Indeed, it suggests that, when the relevant legislative body wished to make the point clear, it was able to, and did so.”

So the bottom line is that the £70,000 entitlement had become an entitlement to £58,333.33 plus the VAT element on that amount.

There is an element of unequal treatment in this – if the party claiming costs were able to recover VAT the cap would in practice apply to its net costs figure, the VAT element only being an issue where the party can’t recover its VAT. Time to amend the CPR to accord with the Northern Ireland position?

Incidentally, I recommend a short YouTube summary on the case by Kings Chambers’ Martin Carter. As I write, the video has had 36 views and Jessie J’s Price Tag has had 731 million views. Come on planoraks!

Other court costs awards

Stepping aside from Aarhus costs capping, the general principle is that “if a party who has been given leave to bring a judicial review claim succeeds in establishing after fully contested proceedings that the defendant acted unlawfully, some good reason would have to be shown why he should not recover his reasonable costs” (Lord Toulson in R (on the application of Hunt) v North Somerset Council (Supreme Court, 22 July 2015) but the court of course always has a wide discretion.

That discretion may well result in no award or a reduced award. Two examples which may serve to manage expectations:

In Tomkins v City of London Corporation (Lang J, 8 December 2020) the claimant challenged the making of an experimental traffic order in relation to Beech Street, which runs under the Barbican Estate. He won on three of eight grounds but was not awarded costs:

The Claimant’s application for the City to pay his costs is refused. Although he succeeded on three of the eight grounds, he did not succeed in quashing the [experimental traffic order]. The Council succeeded on five of the grounds, and the issues on which the Council succeeded occupied the majority of the hearing, and the post-hearing submissions. The City incurred significant costs in preparing and presenting those issues. Their costs far exceed the Claimant’s claim for costs in respect of the grounds on which he was successful. The City is not pressing for its costs, but has instead proposed that there should be no order for costs. In all the circumstances I consider that this is a just and appropriate order.”

(Town Legal’s Town Library summary is here).

In Flaxby Park Ltd v Harrogate Borough Council (Holgate J, 25 November 2020) the claimant had sought to challenge the adoption of part of the Harrogate local plan on three grounds and succeeded on part of one ground. To cut a long story short (literally), Holgate J did not allow the claimant to recover the costs of an original bundle which he considered to be disproportionately lengthy or of the preparation of a witness statement which he determined to be unnecessary, and awarded the claimant 15% of the balance of its costs:

“I do not accept HBC’s submissions that there should be no order as to costs. … It was necessary for FPL to bring proceedings, but they ought to have been on a much more limited scale. Taking into account also the unnecessary expenditure to which HBC has been put in order to resist the substantial parts of the claim where FPL was unsuccessful, FPL should be awarded only 15% of its costs…”

Appeal inquiry costs awards

In Swale Borough Council v Secretary of State (Sir Ross Cranston, 17 December 2020), Swale Council sought unsuccessfully to challenge a costs order made against it by a section 78 appeal inspector

The judgment includes a helpful review of the case law in relation to challenges to inspectors’ awards of costs, leading to the following conclusion by the judge:

“the authorities establish the following propositions:


(i) the Secretary of State is entitled to adopt a policy about costs and having done so his inspectors must apply it;


(ii) the policy is that costs may be awarded against a party for unreasonable behaviour resulting in unnecessary or wasted expense;


(iii) “unreasonable” means unreasonable in the ordinary sense of the word, not unreasonable in a Wednesbury sense;


(iv) a Council’s behaviour may be unreasonable if its refusal of planning permission could not be supported by substantial evidence, but that is not the only test and there may be other relevant factors;


(v) one example is if a developer signs a section 106 agreement; it is accepting that it is reasonable even though the inspector may not be persuaded that it is necessary
.”

The Council had sought to argue that it was wrong for it to be penalised for late withdrawal of its requirement for an affordable housing contribution and for the consequence of a late indication of particular highways concerns but the judge declined to interfere with the judgment of the inspector. For instance, on the second complaint:

In my view this is one of those cases where a different inspector may have reached a different conclusion. However, I cannot conceive that Mr Upton has surmounted the high hurdle necessary to establish that this inspector’s decision was flawed. The case which Mr Village QC put to the inspector was that the Council had not raised what became condition 19, or the further contribution to traffic calming in Darlington Drive/Parsonage Chase, until immediately before the exchange of evidence on 6 January 2020, too late to avoid the preparation of Attwood’s highways evidence. When these were raised as a way forward, Attwood agreed and it was an example of the Council’s failure to review the case promptly following the lodging of the appeal, one of the examples the PPG gives as indicating unreasonable behaviour (at para. 049, referred to earlier).

(Town Legal’s Town Library summary of the case is here).

Simon Ricketts, 16 January 2021

Personal views, et cetera

If You’re Gonna Do It, Do It Right: Final Thoughts On White Paper

Sorry for starting with an earworm.

Despite its passionate and urgent advocacy, George Michael probably didn’t have planning system reform in mind when he wrote I’m Your Man, but that “If You’re Gonna Do It, Do It Right” chorus has certainly been on an internal loop while writing this post.

We finally nearing the 29 October 2020 deadline for consultation responses in relation to the Planning White Paper.

One small benefit of this Covid-19 period has been the extent of on-screen engagement by some of those behind the proposed reforms, and wider webinar discussions, most of them freely available on YouTube. Congratulations to MHCLG for being prepared to engage in this way.

For me the most illuminating sessions have included (to pick a few):

⁃ Christopher Katkowski QC on Have We Got Planning News For You on 7 August 2020 (13,000 views!) and Christopher being interviewed on 19 October 2020 by Steve Quartermain and Nick Kilby (Cratus). In the second interview, drawing on two and a half months of public discussion during the consultation period, Steve is able to home in on a number of the key unresolved issues. (Particular thanks to Chris for the huge amount of work and thinking he has put into these proposals and for being prepared to speak on so many platforms).

⁃ Steve Quartermain’s hour long discussion with the Secretary of State.

⁃ (I’m biased here) a Town/No 5 chambers webinar on the likely practical implications of the reforms and MHCLG’s director of planning Simon Gallagher participation in a Town webinar on 7 October on the proposed Infrastructure Levy.

What about Parliament? Well, there was a Commons debate on 8 October 2020 into the following motion by Conservative MP for the Isle of Wight, Bob Seely:

“I beg to move,

That this House

welcomes the Government’s levelling up agenda and supports appropriate housing development and the Government’s overall housing objectives;

further welcomes the Government’s consultation, Planning for the Future, updated on 6 August 2020, as a chance to reform housing and land use for the public good;

welcomes the Government’s commitment to protect and restore the natural environment and bio-diversity;

and calls on the Government to delay any planned implementation of the changes to the standard method for assessing local housing need proposed by the Government’s consultation, Changes to the Current Planning System, published on 6 August 2020, and Proposal 4 of the Government’s consultation, Planning for the Future, on a standard method for establishing housing requirement, until this House has had the opportunity to hold a debate and meaningful vote on their introduction.”

39 members spoke in the debate – let nobody think that any stage of the proposed reforms will be uncontroversial – many of the members raising individual constituency issues.

The non-binding motion was agreed without a vote, with MHCLG minister Christopher Pincher making assurances in his speech in response that:

“We will reflect carefully on what we have heard and the feedback we receive. As we advance, we will endeavour to keep the House well-informed of these important changes, because make no mistake: they are important. They are what we need to do to deliver 300,000 good-quality new homes a year in the places that need them, and in the long run, they are what we need to do to build back better after covid-19. They are what we need to do to meet the aspirations of the people we serve now and in the generations to come.”

On the same day, the Housing, Communities and Local Government Commons Select Committee launched an inquiry into the future of the planning system in England. The call for evidence has a deadline of 30 October 2020 and invites responses on the following issues:

“ 1 Is the current planning system working as it should do? What changes might need to be made? Are the Government’s proposals the right approach?

2. In seeking to build 300,000 homes a year, is the greatest obstacle the planning system or the subsequent build-out of properties with permission?

3. How can the planning system ensure that buildings are beautiful and fit for purpose?

4. What approach should be used to determine the housing need and requirement of a local authority?

5. What is the best approach to ensure public engagement in the planning system? What role should modern technology and data play in this?

6. How can the planning system ensure adequate and reasonable protection for areas and buildings of environmental, historical, and architectural importance?

7. What changes, if any, are needed to the green belt?

8. What progress has been made since the Committee’s 2018 report on capturing land value and how might the proposals improve outcomes? What further steps might also be needed?”

I’m reluctant to put down here my own concluding thoughts but I supposed they can briefly be summarised as follows:

1. All credit to those who have put so much work into the proposals, and I have no complaint about the objectives set out in the paper. However, the task is too vast to be dealt with as proposed.

2. The so-called white paper falls short of the necessary detail to be any practical account of what changes are proposed. Those behind the proposals admit as much. There are big gaps, which go beyond being details to join the dots but which rather need to be addressed so that there is proof of concept.

3. The next step should be a full white paper, or sequence of white papers (reform of CIL and section 106 for instance is a huge undertaking which needs its own spotlight), developed through more detailed discussion involving a much wider group of (ugh) stakeholders – including wider representation from the development industry, planners (yes, include planners!), local government, communities.

4. If we rush headlong to legislation it will be botched. We know this to be true!

5. The changes are reliant on changes to EIA and SEA procedures, for which we do not yet have any proposals (they are promised “this Autumn”). They need to move forward in tandem. Again, there is not yet any proof of concept. How can the procedures be simplified without watering down protections?

6. On a similar theme, the changes will be facilitated by the local government organisational changes that were to be included in the devolution and local recovery white paper (see my 25 September 2020 blog post). Again, there is merit in proceeding in tandem so that we are clear as to the role for the London Mayor, for combined authorities and indeed for counties (which seem to be featuring again in discussions in the continued absence of any proper regional approach).

7. Some objectives may be able to be achieved by simple changes, for instance introducing model development management policies into the NPPF alongside guidance that local planning authorities should not duplicate these in their individual plans without good reason.

8. The biggest unanswered questions for me are:

⁃ the process by which Government will give each authority the housing number that it must plan for, what proxy there will be for the current duty to co-operate and how the process can be on the one hand swift but on the other hand transparent, fair and open to challenge.

⁃ the practicality of defining all land as opportunity, renewal or protection and particularly: (a) whether outline permission for opportunity areas is achievable as part of the plan process within the timescale and providing a worthwhile level of detail (b) whether an enhanced presumption in favour of the plan for renewal areas will be counter-productive in killing off any development that is not in accordance with the authority’s wishes and (c) what we really mean by protection areas (see Zack Simons’ spot-on 15 October blog post – one in fact of a brilliantly questioning series which deserve detailed answers).

⁃ the proposed infrastructure levy and in particular the realism or otherwise of the “it will be simpler than CIL” mantra.

I hope that we are not proceeding to construction stage with this new planning system, before we have resolved some fundamental structural elements. (Apologies, I know George Michael would have put that better).

Simon Ricketts, 24 October 2020

Personal views, et cetera

Of Use? (& That Old C2 Number Again)

Where is this Planning Policy Paper then? Now presumably to be published by MHCLG next week, isn’t it odd to be making any such announcement when Parliament is no longer sitting, unless, anti-climatically, it is going be a factual update as to progress rather than the “big bang” moment many anticipated?

This post was just going to be a shameless plug for two webinars on the new Class E of the Use Classes Order that we at Town are running next week jointly with Landmark Chambers, at 5pm on 4 and 6 August, on the legal implications and the planning implications respectively. Details are below. We have had a great take-up (over 1,500 acceptances in total for the two sessions) but there is still capacity. What would we do without Zoom??

New Class E: The Legal Implications

5 pm Tuesday 4 August 2020

Practical answers to the questions arising from the amended Use Classes Order.

• How precisely will it work

• What about existing conditions and other restrictions?

• How to assess new applications and scope/risk of restrictive conditions

• Scheme definition in the new world

• External works

• The GPDO transitional arrangements

• Are local plan policies now out of date?

• How does CIL apply?

Panelists:

• Zack Simons (barrister, Landmark Chambers)

• Duncan Field (partner, Town Legal LLP)

• Heather Sargent (barrister, Landmark Chambers)

• Simon Ricketts (partner, Town Legal LLP)

Chair: Meeta Kaur (partner, Town Legal LLP)

Register via this link: https://us02web.zoom.us/webinar/register/WN_ow1AXngeRyyRrBE_moQPew

New Class E: The Planning Implications

5 pm Thursday 6 August 2020

The changes to the Use Classes Order have potentially fundamental consequences for land owners, developers, local authorities and communities:

• What can we expect to be the main opportunities?

• What are the concerns and how can they be mitigated?

• How will local authorities respond?

• What now for place making and sustainability?

• Retail, employment and leisure policies in the new world

Panelists:

• Alice Lester MBE (operational director, regeneration, London Borough of Brent)

• Michael Meadows (head of planning, British Land)

• Steve Quartermain CBE (consultant, Town Legal LLP)

• Sarah Cary (executive director, place, London Borough of Enfield)

• Zack Simons (barrister, Landmark Chambers)

Chair: Meeta Kaur (partner, Town Legal LLP)

Register via this link: https://us02web.zoom.us/webinar/register/WN_GnWGpSBQRWiqAeeTONsSjw

I was going to leave it at that, but then an interesting case was handed down earlier today: Rectory Homes Limited v Secretary of State (Holgate J, 31 July 2020). It doesn’t concern the recent Use Classes Order questions but rather the longstanding question as to how extra care housing should be categorised in use terms.

Usually the issue is C2 versus C3 (eg see my 16 September 2017 blog post Class Distinctions: Housing For Older People) but here it was a different question: was a proposed ‘Housing with Care’ development (Use Class C2)” development to be categorised as “dwellings” for the purposes of South Oxfordshire District Council’s local plan, which requires schemes for 3 or more dwellings to provide affordable housing? An inspector had dismissed Rectory’s planning appeal. Both parties at the appeal had agreed that the proposal fell within class C2. The difference was over whether the accommodation could be categorised as “dwellings”. “The Claimant’s stance was that because it was agreed that the residential accommodation did not fall within Class C3, none of those units could constitute a dwelling. SODC’s case was that the “housing with care” units were dwellings in both “form and function”, and as such could fall within the C2 Use Class provided that they are not in C3 use.”

The inspector found that the accommodation fell within C2 but that it comprised “dwellings” for the purposes of the policy. His reasoning was rather odd: “the Inspector appears to have taken the view that if each of the dwellings proposed would be ancillary to the C2 use of the site, the exclusion of dwellings falling within the C3 Use Class, upon which the Claimant had relied, could not apply.”

The inspector went on to find as follows:

Taken as a whole the proposal would be contrary to the development plan in that it would materially exceed the maximum number of dwellings set out in the site specific policy in the [Thame Neighbourhood Plan]. It would cause harm to the setting of The Elms and to the [Thame Conservation Area], which are both designated heritage assets, contrary to the relevant policies in the SOLP, the SOCS and TNP; special attention and great weight should be given to these harms. It would also fail to provide affordable housing, in particular on-site, to deliver a mixed community, in line with the policies of the SOCS, the TNP and the Framework. While there would be compliance with other policies, I consider that these are the most important policies for the determination of this appeal. These policies are all up-to-date.

As explored above, the proposal would result in less than substantial harm to, and thus the significance of, both the setting of The Elms and to the TCA. These should be balanced in line with paragraph 196 of the Framework with the public benefits of the proposed development. In this regard I consider that the public benefits identified above would balance those heritage harms. This is in line with Policy HA4 of the TNP which allows for a balance to be undertaken as to the overall planning conclusion, but this would not mean that there was compliance with that policy overall due to the number of dwellings being proposed.


By failing to provide affordable housing on the appeal site, the proposal would result in very substantial harm. The need for owner occupied elderly persons extra care accommodation in the area does not outweigh this harm.”

Rectory challenged the decision. I only refer below to those issues arising which touch on use classes.

Holgate J makes a preliminary point, which is topical, given much discussion at the moment as to the advantages or disadvantages of defining proposals by way of the new class E, once the Use Classes Order changes take effect from 1 September:

“I deal first with a preliminary point. The Inspector suggested in his Pre-Inquiry Note that because the purpose of the Use Classes Order is to remove certain changes of use from development control, a planning permission ought not to be expressed in terms of a Use Class, particularly as that consent would be issued before the development is constructed and begins to be used. The principal parties at the inquiry did not see this as posing any legal difficulty and ultimately it did not appear in the Inspector’s reasoning in his decision letter. I agree with them on this point. For example, the provisions on certification of lawful development require that the lawfulness of an existing use (which may be based upon a planning permission), or the lawfulness of a proposed use, should be described by reference to any Use Class applicable (ss.191(5)(d) and 192(3)(b)). I therefore cannot see why the grant of a planning permission may not also be defined in terms of a Use Class.”

So, there is no reason not to define what is granted planning permission by way of a use class rather by way of a specific proposed use. (Obviously what is applied for will need to be justified by reference to the relevant development plan and other considerations. Absent clear government guidance, that is going to be a big issue in relation to the new Class E – how much weight should pre Class E development plan policies still have?).

The judge goes on to conclude that extra care accommodation can comprise dwellings:

“It has become well-established that the terms “dwelling” or “dwelling house” in planning legislation refer to a unit of residential accommodation which provides the facilities needed for day-to-day private domestic existence (Gravesham p. 146; Moore v Secretary of State for the Environment, Transport and the Regions (1998) 77 P & CR 114, 119; R (Innovia Cellophane Limited) v Infrastructure Planning Commission [2012] PTSR 1132 at [27]-[28]). This concept is consistent with the Core Strategy’s interchangeable use of the words “dwelling”, “house”, “home” and “unit”. It can include an extra care dwelling, in the sense of a private home with the facilities needed for “independent living” but where care is provided to someone in need of care.”

Just because the proposed development is not within C3 does not mean that it cannot comprise dwellings for the purposes of policy. The inspector’s categorisation of the units of accommodation as ancillary to the main C2 use were seen by the judge as “wholly immaterial” to his decision.

Perhaps a reminder that, once we have all finished chewing over the uncertainties of new class E, the C classes are perhaps also in need of some updating…

(Zack: I reckon we could get a couple more webinars out of that exercise in due course…!)

Simon Ricketts, 31 July 2020

Personal views, et cetera

This blog post’s ear worm

Topical Four Letter Words Beginning With Z

Aren’t we bored now of Zoom meetings? They are no substitute for the real thing.

But there is another topical Z word. Should we adopt a Zone based approach to development consenting? Again, is this any substitute for the real thing?

The Government seems to have determined that it has a once in a lifetime opportunity, to (according to Robert Jenrick) “rethink planning from first principles” with a shake-up designed to accelerate the process.

The time has come to speed up and simplify this country’s overly bureaucratic planning process,” he said on Wednesday. “This government is thinking boldly and creatively about the planning system to make it fit for the future.” (England’s planning system set for shake-up Financial Times, 10 June 2020).

And you may ask yourself, well

How did I get here?

You may ask yourself

What is that beautiful house?

You may ask yourself

Where does that highway go to?

And you may ask yourself

Am I right? Am I wrong?

And you may say yourself

“My God! What have I done?”

How did we get here?

Go back to the Policy Exchange’s paper Rethinking the Planning System for the 21st Century (27 January 2020):

“The Government should announce a clean break with the land use planning system introduced in 1947 that largely continues in the same form today. This reform programme should focus on the following issues:

• Ending detailed land use allocations. The planning system should not try to systematically control what specific activity can take place on individual land plots based on fallacious projections of housing and commercial ‘need’. Local planning authorities have proved ineffective and inefficient at micro-managing land markets. In this regard, the supply of new homes, offices and other types of land use should no longer be capped by local planning authorities in local plans or by site allocations.

• Introducing a binary zonal land use planning system. Land should be zoned either as development land, where there is a presumption in favour of new development, or non-development land, where there is not a presumption and minor development is only possible in more restricted circumstances. Land zoned as development land will include existing urban areas and new urban extensions made possible by infrastructure improvements. In this new system:

• Zones should, in general, have no reference to what specific land uses are allowed on individual private land plots. Market conditions should instead determine how urban space is used in the development zone. Land and buildings in the urban area would then be able to change use without requiring the permission of the state (as long as rules on separating certain harmful uses are not broken, as detailed below).

• Zonal designations should be separate from any concept or calculation of ‘need’.

Instead, they should be dependent on metrics that determine whether land has good access potential, whether new development would cause environmental disturbance; and the potential for an existing built development to expand. Zones should be updated an ongoing basis and would need to be periodically reviewed by the Planning Inspectorate.

• These proposals do not negate the need to separate certain harmful uses that have a negative impact on neighbours, for instance a quarry next to a children’s play park. Nor do the proposed reforms negate the need to protect certain uses, for instance for their natural or heritage value. These incompatible and protected uses should be clearly defined in the local plan.”

In February 2020 co-author Jack Airey becomes no 10’s housing and planning special advisor.

Robert Jenrick publishes his pamphlet Planning For The Future (12 March 2020), setting out a range of proposals which are to form the basis of a Planning White Paper, then promised for Spring 2020 but now of course delayed.

The pamphlet picks up on some of the themes of the Policy Exchange work and particularly on the Z word, but in more cautious terms:

“Expand the use of zoning tools to support development – the government will outline further support for local areas to simplify the process of granting planning permission for residential and commercial development through zoning tools, such as Local Development Orders. The government will trial the use of templates for drafting LDOs and other zonal tools to create simpler models and financial incentives to support more effective use. The government has also launched a consultation on a new UK Freeport model, including on how zoning could be better used to support accompanying development.”

(I comment on the proposals in my 21 March 2020 blog post What To Do?).

So what is actually happening? In a House of Lords debate on 8 June 2020, there was this exchange:

Baroness Wilcox of Newport (Lab) [V]

I declare my interest as noted in the register. Can the Minister confirm the reports across the weekend media that the Government are intending to take planning decisions away from councils and give them to development corporations? This is extremely concerning after recent developments in Tower Hamlets, which resulted in the developer not having to pay between £30 million and £50 million in the community infrastructure levy?

Lord Greenhalgh

The situation at the moment is that there is a planning commission that has started under my right honourable friend Chris Pincher, the planning Minister. I cannot make any further comments about what the noble Baroness has read in the media.”

There is nothing else in the public domain about this “planning commission”, although of course, as referred to in this exchange, there has been much speculation in the media. Back to that 10 June FT piece:

“Downing Street has set up an advisory panel that includes Bridget Rosewell, the national infrastructure commissioner who recently headed a review into accelerating planning appeal inquiries, property developer Sir Stuart Lipton and barrister Christopher Katkowski.

The other members are Nicholas Boys Smith, founder of Create Streets, co-chair of the Building Better, Building Beautiful Commission, and Miles Gibson, head of UK research at advisory group CBRE.”

The piece speculates:

“Ministers hope that the reforms can be agreed in time for a wider economic announcement in July by Rishi Sunak, the chancellor, which will also include extra infrastructure spending.”

If we are talking about fundamental changes to the planning system, of course reforms cannot be “agreed” in time for July. But might we expect this delayed Planning White Paper by then? I suspect that separately and ahead of the white paper we will see legislation in relation to shorter-term responses to the current crisis, including the extension of planning permission time limits and changes to PD rights.

In the meantime, the think tank onslaught continues. The prompt for the 10 June FT piece was the publication by the Policy Exchange of a series of essays: Planning Anew: A collection of essays on reforming the planning system for the 21st century. There are pieces by Bridget Rosewell CBE, Professor Robert Adam, Charles Dugdale, Warwick Lightfoot, David Rudlin, John Myers, Jamie Ratcliff, Reuben Young, Dr Sue Chadwick, William Nicolle and Benedict McAleenan.

The essays are diffuse in their themes and I would be wary of drawing too much from them.

There are some eye-catching comments from Bridget Rosewell:

“It’s clear that we can’t stop humans planning, or probably being planners. But we must abolish the Plan as a shibboleth, a straitjacket and an industry”

“Abolishing the current planning edifice does not remove the need for frameworks for permissions. Tensions still exist and must be resolved. My review of Planning Inquiries showed that they could be done twice as fast just by applying sensible rules, most of which already existed, to manage the process. Other planning disputes are often also resolvable without having a complicated set of rules including local plan preparation and examinations in public.”

David Rudlin’s contribution, News from Nowhere: the future of planning and cities, addresses zoning full-on. It is a fantasy piece, looking back from a 2050 utopia that had been delivered in part by a change to a zoning system in 2020. To give you a flavour:

“Clara and William transferred to a water taxi, heading down the Irwell, canyoned by the towers of Manchester and Salford that William remembered being thrown-up in a brief moment of madness in the late 2010s. As they passed into the Ship Canal, Clara explained that the new spatial planning system had allowed for the much more balanced growth of the conurbation. The inner areas of Manchester and Salford had been developed with mid-density neighbourhoods of housing, apartments and workspace resembling the cities of continental Europe. Higher density nodes, like those he had seen from the train, had been promoted around transport interchanges and local centres. There were still plenty of suburbs, of course, like the one where Clara lived with her family that they would visit later, but the overall structure of the conurbation made much more sense and was far more sustainable.

This had happened as a result of the new planning structure introduced in 2020. It had been based on a three tier system that had finally given some clarity to the way that the country had been planned, as well as rejuvenated the role and status of planners like Clara. The top tier was a National Spatial Plan, the middle was City Region / County Spatial strategies and the third was district-level zonal coding plans, but more of that in a moment”

The piece (and indeed the interesting debate about it when David Rudlin guested on Have We Got Planning News For You on 18 June 2020) illustrates the problem with the current debate, because surely what is contemplated (and flagged in March by Robert Jenrick), whilst no doubt “radical”, is not an across-the-board move to a system of comprehensive zoning plans – and so there is the risk that we all have a theoretical debate in one side of the room and fail to engage with the more practical reality that may be emerging across the way. I sensed the same impractical utopianism in another think tank piece published this week: Planning for the future: How flexible zoning will end the housing crisis (Anthony Breach, Centre for Cities, 19 June 2020).

Because the real debate is not a straight-forward one. How can we focus so much on the Z word before considering:

⁃ what are the Government’s policy objectives, and how does it prioritise as between them?

⁃ in which ways does the Town and Country Planning Act system play its part in meeting those objectives?

⁃ in what ways can the operation of the existing system be improved and in what ways are changes required, so as not just to reflect current policy objectives but as a resilient engine to be applied towards whatever may be future political priorities? Or is the idea to lock the engine into a specific political direction?

⁃ how do we guard against unintended consequences and against new blockages forming, if for instance the stress point between the potential for profit and the restriction on certain forms of development moves exclusively to the process of arriving at the zoning plan or scheme? That stress point is where there is the potential for delay, political difficulties and legal challenge. (In our present system of course we have multiple stress points!).

⁃ to what extent would a form of zoning (ie a greater level of predictability being given via the rule-setting and policy-forming stages in return for, at the project stage, less flexibility and less room for political discretion) be better or worse than the current system at achieving those policy objectives?

It’s difficult because those policy objectives will surely not just not include the Covid-accentuated need for housing and economic activity, but the need for communities to continue to have an appropriate level of influence over outcomes and the need not to rule out, through rigid prescription, unexpected forms of development which may be in the public interest but simply not anticipated by the plan?

For a really good, detailed analysis of zoning, different models, the pros and cons and potential application to our English system I recommend Jennie Baker’s blog post Should zoning be introduced in England? (Lichfields, 14 May 2018). I also strongly recommend that you read Zack Simons’s #planoraks blog post Welcome to Euclid! (16 June 2020), which, aside from examining the landmark 1926 US Supreme Court case on zoning, Village of Euclid v. Ambler Realty Co, pulls us back to the guidance that the Planning Advisory Service have already published on preparing Local Development Orders, surely one of the prime mechanisms within our existing system for taking a more zoning-based approach (as is specifically mentioned in that passage from Planning For The Future).

Personally speaking, surely there are also two other opportunities to expand the use of existing mechanisms, so as to move more towards what might be termed a zoning-based approach to planning, if this what is required.

First, there is the potential to expand the use of the permission in principle route, introduced in the Housing and Planning Act 2016 but currently far too narrow in its scope. What about building on the existing regime by placing an enforceable duty on LPAs to identify land that is appropriate for permission in principle specifying the location, land use and development parameters? As suggested in a paper by Field, Somerville and Bischoff, Permission in Principle under the Housing and Planning Act 2016: Considering an Australian Approach [2017] JPL 338, such ‘zoning’ overlay permissions in principle could either be promoted by local planning authorities as part of their local plan/ separate mini-development plans, by neighbourhoods through neighbourhood plans or alternatively requested by landowners/ promoters if certain defined criteria are met.

Secondly, the whole Use Classes Order/General Permitted Development Order system is already a form of zoning. Any further liberalisation in relation to, for instance, “high street” uses, is utilising an existing form of zoning. It might be said that recent problems in relation to permitted development have been as a result of the GPDO not being sufficiently prescriptive in relation to building specifications (or perhaps the lack of sufficient protections by way of the Building Regulations) and as a result of the ability to dodge affordable housing or other social infrastructure requirements, rather than through any more fundamental flaw in the basic concept.

As we try to make sense of all this, I have two final suggestions:

My firm is co-hosting with Landmark Chambers a, yes, Zoom, webinar panel discussion on these very issues at 5pm on 23 June 2020. I am chairing the panel which comprises Bridget Rosewell, Sir Stuart Lipton, Steve Quartermain, John Litton QC, Charlie Banner QC and my Town partner Duncan Field. We have had over 800 registrations so far – I am not the only one focused on the Z word it seems – but you can still register for free here.

Alternatively, if you need some fresh air after all this, there is another topical four letter word beginning with Z. Zoos are now open.

Simon Ricketts, 19 June 2020

Personal views, et cetera