Westferry Printworks Decision: LPA Reaction Unprintable

Tower Hamlets Council’s revised CIL charging schedule came into effect on 17 January 2020, imposing borough CIL for the first time on its large allocated sites, so you will appreciate its double disappointment at the Secretary of State allowing the Westferry Printworks site appeal, against the inquiry inspector’s recommendations, in a decision letter dated 14 January 2020. The CIL figure could have been up to £50m, according to evidence given at the inquiry on behalf of the appellant.

The scheme is for a “comprehensive mixed-use redevelopment comprising 1,524 residential units (Class C3), shops, offices, flexible workspaces, financial and professional services, restaurants and cafes, drinking establishments (Classes B1/A1/A2/A3/A4), community uses (Class D1), car and cycle basement parking, associated landscaping, new public realm and all other necessary enabling works” at Westferry Road on the Isle of Dogs.

There has been a furious response from the council. At a full council meeting the following day, 15 January 2020, a resolution was passed to examine “all available options, including a judicial review“. The East London Advertiser reports Mayor John Biggs as saying:

It is a massively tall and dense development. Something of 40 floors on the island is an outrage. By making the decision on Tuesday we also lose a massive sum of money. This development will place a huge impact on the island. It is a scandal and outrageous. We will be doing everything in our power [including] seeking a judicial review.”

The potential impact of borough CIL on the viability of the proposals obviously had been raised by the appellant as a potentially relevant matter, given that it would go to viability. Unsurprisingly, the appellant had sought to include a mechanism within its section 106 agreement for a potential reduction in affordable housing should the Secretary of State’s decision letter be issued after the revised CIL charging schedule had been adopted, a proposal which both the inspector and Secretary of State rejected.

The timing of the decision letter meant that this issue went away – it would have been an interesting one to test, given that the situation often arises where an applicant or appellant is in the hands of the decision maker as to whether permission will be issued before a revised CIL charging schedule comes into effect and why shouldn’t a section 106 agreement mechanism to neutralise the effect be appropriate where the viability appraisal has not taken the potential additional CIL liability into account?

The decision letter was plainly ready to be issued, why should it have been held back?

The appeal had been lodged in relation to an application submitted by Westferry Developments Limited (the owner of the site is Northern & Shell, the development manager is Mace) on 24 July 2018. The appeal was recovered for the Secretary of State’s own determination on 10 April 2019. Tower Hamlets asked for more time to formulate their position in relation to the proposals but this was refused by the Secretary of State, as recorded in a report to a meeting of Tower Hamlets’ strategic development committee on 14 May 2019:

This report is seeking the authority of the committee for officers to defend an appeal which has been submitted to the Secretary of State by the developer. The Secretary of State has imposed a timetable which requires that this report is considered by the Committee on 14th May 2019 in time for the council to submit a Statement of Case by 22nd May 2019 in order to avoid breaching the imposed timetable and making the authority liable for costs for unreasonable behaviour. As the report had not been written when the timetable was imposed, the Council asked Secretary of State to review the timetable and he has declined. These are the special circumstances justifying the urgency.”

The previous Mayor of London (whatever happened to him?) had intervened and granted planning permission for an earlier scheme for the site in 2016 for “comprehensive mixed use redevelopment of 118,738 m2 including buildings ranging from 2-30 storeys (tallest 110 m AOD) comprising: a secondary school, 722 residential units, retail use, restaurant and cafe and drinking establishment uses, office and financial and professional services uses, community uses, car and cycle basement parking, associated landscaping and new public realm“. That planning permission has been implemented by the demolition of the printworks and works to construct a new basement.

The latest application had been on the basis of an offer of 35% affordable housing, although not policy compliant due to the proposed tenure mix, justified by reference to viability appraisal. When the appeal was submitted, unsurprisingly, given that on appeal the decision maker would expect an updated viability appraisal, that offer was withdrawn and at the time of the 14 May 2019 committee meeting there was just an indication that a revised viability assessment would be submitted and that the revised offer would be less than 35%.

The committee resolved that the proposals would have been refused on the following grounds:

⁃ Townscape and visual impact

⁃ Wind Impact on the Docklands Sailing Centre

⁃ Affordable housing – amount

⁃ Housing mix and choice

The inquiry started on 7 August 2019. This was an important appeal for the council, as can be seen from this July 2019 Facebook post from a councillor, encouraging opposition to the proposals:

In the evidence for the inquiry, the affordable housing offer had been reduced to 21% on the basis of an updated viability assessment.

In this summary that follows I am plagiarising some of an internal note prepared by my Town partner Louise Samuel (into which I may now introduce errors, all mine):

• The inspector accepted that the existing permission should be treated as a fallback, which formed an appropriate basis for assessing an alternative use value for the purposes of arriving at a benchmark land value.

• However, the inspector did not agree with how the appellant had calculated the benchmark land value (see IR 507 on for BLV discussion) and considered that the 21% offer was unlikely to be the maximum reasonable provision for the site. He did not, however, set what the maximum reasonable provision would be.

• Whilst Tower Hamlets criticised the appellant for resiling from its previous 35% offer, the Inspector notes that it was clear that the appellant was responding to the Mayor’s fast-track approach (which requires at least 35%) and so took a commercial view despite the fact that it was not supported by the viability assessment at the time. He concluded that this was not, in itself, a reason to reduce the weight to be attached to the Assessment before him (see para 530 of the IR).

• The Inspector’s view was that the consented scheme provided many of the same benefits but without causing the same harm to heritage assets. Because of the consented fallback, the only benefits that carried weight were those in addition to the consented position.

• The Secretary of State agreed that it is likely that the scheme could provide more affordable housing (“21% does not…represent the maximum reasonable amount of affordable housing”) but still considered that the additional benefits (compared to the consented fallback scheme) of: (a) housing (802 more units of which 142 would be affordable, with a policy compliant tenure split of 70% affordable rent 30% intermediate); and (b) employment during construction, were enough to grant permission. The Secretary of State gave these benefits significant weight whereas the Inspector had attached moderate weight to these benefits. The Secretary of State took into account that “there is no evidence before him of any other scheme which might come forward or what level of affordable housing might be delivered by any such scheme”.

• The Secretary of State considered these benefits to be enough to outweigh harm to important heritage assets (Grade I Old Royal Naval College; Grade I Tower Bridge; and the Greenwich World Heritage Site).

• The section 106 agreement included both an early and late stage viability review, which means that the percentage of affordable housing may increase, albeit the Inspector criticised the limited effectiveness of these.

An interesting decision in that we would need to go back almost two years to find another recovered appeal for housing development which the Secretary of State has allowed in London. Contrast for instance with the 19 July 2019 Chiswick Curve decision letter, appeal dismissed by the Secretary of State against his inspector’s recommendations, where he gave only moderate weight to the provision of 327 dwellings, whereas the Inspector had given significant weight to the housing offer (the decision has been challenged by the appellant – Louise and colleagues acting), and contrast with for instance the 1 Cambridge Heath Road 10 June 2019 decision letter, again an appeal dismissed against his inspector’s recommendations.

Much to chew over for those promoting, or otherwise engaged with, major projects in London.

Simon Ricketts, 18 January 2020

Personal views, et cetera

 

Image courtesy of Westferry Printworks website

Planning Or Politics? Significant London Planning Decisions 2019

Here is the skeleton of a presentation I am giving at the RTPI London Annual Summit 2019 on 20 November 2019. You’ll have to come along for the flesh, as it were.

I just wanted to do a basic trawl of what has been happening over the past year in terms of:

• Mayoral directions to refuse

 

• Mayoral directions that he is to be the local planning authority

 

• Secretary of State call-in decisions

 

• Secretary of State decisions on recovered appeals

 

Mayoral directions to refuse

 

Former Tesco car park, Conington Road/LB Lewisham

Affordable housing provision, viability review mechanism

Direction 9 March 2019

 

The Tulip/City of London

Urban design, historic environment (including Tower of London world heritage site), strategic views, pedestrian movement, cycle parking

Direction 15 July 2019

 

Harrow School/LB Harrow

Direction 29 November 2018 – no very special circumstances for development in MOL

Secretary of State allowed on appeal 31 October 2019, with costs award against Mayor

 

Mayoral directions that he is to be the LPA

 

Former Biscuit Factory, Bermondsey/LB Southwark – 1,342 build to rent units and other uses

Direction 7 May 2019 – housing and affordable housing

Public consultation on scheme amendments including to increase housing to 1,548 build to rent units and affordable housing from 27.5% to 35%

No representation hearing yet arranged

 

Osiers Road/LB Wandsworth – commercial with 168 resi units

Direction 10 June 2019 – housing and affordable housing

Raised AH offer from 39% habitable rooms to 100%

Representation hearing and planning permission 18 October 2019

 

100 West Cromwell Road/RB Kensington & Chelsea – 145 affordable housing units, 282 market residential units and other uses

Direction 1 July 2019 – housing and affordable housing

Revisions to scheme including increased quantum of affordable housing (427 total of which 186 affordable), reduced parking and improved community leisure offer. Increased height and other design changes

Representation hearing anticipated February 2020

 

Homebase site, Manor Road/LB Richmond-upon-Thames – 385 residential units and other uses

Direction 29 July 2019 – housing and affordable housing

No representation hearing yet arranged

 

Kidbrooke Station Square/LB Greenwich – new bus station interchange, commercial, 619 residential units – applicant Notting Hill Genesis & TfL

Direction 5 August 2019 – housing and affordable housing

Representation hearing was to be 31 October 2019

 

Kensington Forum Hotel/RB Kensington & Chelsea – hotel, service apartments, 46 affordable housing units (100%)

Direction 5 November 2018

RBKC JR, direction quashed by consent order 16 April 2019

2nd Direction 23 April 2019 – visitor economy, housing and affordable housing

Public consultation on scheme amendments including increase in residential units from 46 to 62

Representation hearing and planning permission 21 June 2019

2nd JR by RBKC, going to full hearing 21 November 2019

 

Secretary of State call-in decisions

 

No London call-in decisions in 2019 but:

 

Purley Baptist Church/LB Croydon – 106 residential units and other uses

Refused by Secretary of State by 3 December 2018 decision letter , following 12 April 2017 call-in

Quashed by consent of parties March 2019, back with Secretary of State for redetermination

 

Vauxhall Cross Interchange/LB Lambeth – hotel and 677 residential units

Called in by the Secretary of State, May 2019

Inquiry commences 17 December 2019

 

Holocaust Memorial, Victoria Tower Gardens/Westminster CC

Called in by Secretary of State, November 2019, at request of applicant following WCC non-determination

 

Secretary of State decisions on recovered appeals

 

Slade Green SRFI/LB Bexley & Dartford BC

Dismissed 7 May 2019, following inspector’s recommendations

 

1 Cambridge Heath Road/LB Tower Hamlets – replacement foodstore, 471 resi units and other uses

Dismissed 10 June 2019 against inspector’s recommendations

• Fails to meet NPPF’s aims of creating an inclusive place

• Harm from loss of daylight and sunlight

 

The Curve, Great West Road/LB Hounslow – up to 325 residential units and other uses

Dismissed 19 July 2019 against inspector’s recommendations

• Harm to setting of designated heritage assets

Decision subject to legal challenge, permission to proceed to a full hearing, no hearing date yet

 

Harrow School (see earlier)

 

Simon Ricketts, 15 November 2019

Personal views, et cetera

Pic courtesy of https://commons.m.wikimedia.org/wiki/User:Colin/London .

Fawlty Powers: When Is A Permission Safe From Judicial Review?

A case last month arising from a howler of a permission for the erection of three marquees in the grounds of a hotel, a permission that was intended to be temporary but was issued without any condition to that effect, has potentially created a real mess. 
Pretty much the main thing that the commercial and financial world always wants from any consenting or licensing system, and certainly the planning system, is certainty as to when any necessary consent or licence, such as a planning permission, is free from legal challenge. Central to the legal due diligence work in relation to any operational business with a bricks and mortar presence, for instance in connection with its financing or acquisition, and certainly in relation to any property or development financing or acquisition, will be the need to report on the operative planning permissions and whether they are now beyond risk of being quashed by the courts. Once the judicial review period has passed, it is assumed that a permission can safely be relied upon, money can be lent or invested, properties or companies can be acquired. If the judicial review period has not yet expired, transactions will often be made conditional on its expiry without proceedings having been commenced. 

Judicial review periods are deliberately short so that we can all safely rely on public bodies’ decisions after a relatively short period. Compared with the six or twelve years’ limitation periods that are common in private law, the traditional principle in relation to judicial review is that proceedings must be brought promptly and in any event not later than three months after the grounds upon which the claim is based first arose (Civil Procedure Rules Part 54.4). 

In our planning world, time limits are usually even tighter:
– In relation to statutory challenges, for instance under section 288 of the Town and Country Planning Act 1990 for challenges of decisions of the Secretary of State and his inspectors on planning appeals and called-in planning applications, or under section 113 of the Planning and Compulsory Purchase Act 2004 for challenges of adopted development plans, the relevant time limit is six weeks. 
– Since 2013, the deadline for bringing judicial review proceedings in relation to other matters arising under the Planning Acts (care needed over that definition) is six weeks. 

But it isn’t quite as easy as assuming that, if these deadlines have passed, the relevant decision is free from any risk of judicial review. CPR rule 3.1 (2) (a) gives judges some discretion. Except where the rules provide otherwise, the court may “extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)“. 
A separate form needs to be submitted with the claim, asking for a time extension and explaining why it is justified. The Administrative Court Judicial Review Guide states:
The Court will require evidence explaining the delay. The Court will only extend time if an adequate explanation is given for the delay, and if the Court is satisfied that an extension of time will not cause substantial hardship or prejudice to the defendant or any other party, and that an extension of time will not be detrimental to good administration.
The Court of Appeal last year in Connors and others v Secretary of State (17 November 2017) stressed the extent to which the onus is on the claimant to justify being allowed to bring a claim out of time and waiting to learn the outcome of another case was not a sufficient ground:
“In the context of planning decision-making, this court has made it very clear that the exercise of judicial discretion to permit very late challenges to proceed by way of claims for judicial review will rarely be appropriate – regardless of whether the claimant has had available to him and acted upon legal advice (see the judgment of Sales L.J., with whom Lord Dyson M.R. and Tomlinson L.J. agreed, in R. (on the application of Gerber) v Wiltshire Council [2016] 1 W.L.R. 2593, at paragraphs 45 to 58).”
R (Gerber) v (1) Wiltshire Council (Court of Appeal, 23 February 2016) was a case I mentioned in my 24 March 2018 blog post Once More Unto The Breach Of Legitimate Expectation, Dear Friends. The claimant sought to challenge a planning permission for a solar farm project over a year after the permission had been issued. At first instance, Dove J had been persuaded to allow the claim, accepting that the delay was justified first because there had been a breach of legitimate expectation, established by the council’s statement of community involvement, that he would be consulted at application stage about the proposal and so had an excuse for not knowing about the permission being granted and secondly that part of the delay had been caused by a first firm of solicitors having given ‘incomplete’ advice as to his potential remedies. The parties all accepted that there were in fact errors with the permission which made it unlawful. 

The Court of Appeal rejected on the facts the SCI breach of legitimate expectation argument and thought that the abortive approach to the first firm of solicitors was not a sufficient excuse for the delay. Refusing to allow the claim to be brought out of time it took on board took into account that “substantial hardship or prejudice” would be caused to the solar farm operator, which in the meantime had built its facility:
“On 23 July 2014 Terraform completed an Initial Public Offering on the NASDAQ Global Select Market based on a prospectus listing Norrington as a project generating cash flow in the United Kingdom. Terraform and Norrington make the point in these proceedings that if the planning permission is quashed, that will harm the ability of companies seeking to invest in green energy generation in the United Kingdom to attract investors to fund such projects, because of the uncertainty whether they will be able to rely on planning permissions granted by planning authorities to carry out such developments even though they have gone without challenge within the time provided for in CPR Part 54.5 and indeed, as in this case, for a considerably longer period.”

“The evidence for Norrington and Terraform, the substance of which was accepted by the judge, is that if the planning permission is quashed and they are required to dismantle the solar farm, the cost of dismantling it and restoring the Site to agricultural use would be around £1.5 million. In addition, the cost of installing the solar farm of about £10.5 million would have been wasted and lost. In addition, a premium of £2000 paid for an option to take the lease and locked-in rental payments of approximately £36,300 under the lease would also be wasted.
Sales LJ  concluded: 

“In my judgment, where proper notice of an application for planning permission has been given pursuant to the 2010 Order it is not appropriate to extend time for bringing a legal challenge to the grant of such permission simply because an objector did not notice what was happening. Extending time in such a case so that a legal objection could be mounted by someone who happened to remain unaware of what was going on until many months later would unfairly prejudice the interests of a developer who wishes to rely upon a planning permission which appears to have been lawfully granted for the development of his land and who has prudently waited for a period before commencing work to implement the permission to ensure that no legal challenge is likely to be forthcoming, as happened here. Prompt legal action after grant of a planning permission to challenge its lawfulness will be required in all cases, unless very special reasons can be shown of a kind which are wholly absent in this case. Especial speed will be expected in the case of objectors who have been involved in the planning process throughout, as emphasised by Keene LJ in Finn-Kelcey at [24], but it does not follow that the strong requirement of prompt action will be substantially relaxed in the case of someone who, despite a planning authority’s compliance with the notification rules laid down in law, remained in ignorance.
The Court of Appeal did extend the time for bringing a claim in Croke v Secretary of State (Court of Appeal, 6 June 2017) which was, as so often, somewhat of a comedy of errors. Given that the deadline for lodging the claim was 23 March 2016, this is what happened:
“The Applicant, who is acting in person, wished to challenge the Inspector’s decision. He proposed to do so by issuing a section 288 claim in the Administrative Court Office at the Royal Courts of Justice, in person, on 23 March 2016. However, that day, he missed his train. Therefore, he emailed the relevant documents to a friend, Mr Miller, who was apparently located only a few minutes from the court; and he asked him to file the claim. It is the Applicant’s case, accepted by the judge below for the purposes of the application before her and by Mr Mills for the Secretary of State today, that Mr Miller arrived at the Royal Courts of Justice at 4.25pm; but, although the advertised closing time for the court was 4.30pm, he was refused entry at the main front entrance of the building, the security guard there informing Mr Miller that the counters were closed.

The following day, Thursday 24 March, the Applicant personally attended the Administrative Court Office, where he arrived at 3.30pm. It was Maundy Thursday and, for the court office, the last working day before the Easter break. Due to the volume of people in the queue, he was not seen until about 5pm, when he was informed by a member of staff that he had used an out-of-date claim form, and he would need to complete a different form. He was given a copy of the new form, and he asked if he could complete it there and then. He was told that he would have to return the next working day. The following day was Good Friday, and the next day upon which the court office was open was Tuesday 29 March. The Applicant attended the Administrative Court Office that day, and filed the claim.”



The court at first instance struck out the claim as out of time. The Court of Appeal however granted permission to Mr Croke to appeal, taking into account that there did not appear to be any legal authority applying to these precise facts:
“Having considered the ground of appeal with particular care – and not without some hesitation – I am persuaded that this appeal is arguable, particularly given the absence of authority on this point. It is also noteworthy that this issue affects not just section 288 claims, but a variety of proceedings where there are strict time limits. Therefore, although the Applicant himself accepts that the merits of his particular case may not be the strongest or attract great sympathy, the issue of principle involved does or may have some broader importance.”
(I don’t know what then happened with Poor Mr Croke’s claim. Deadlines, the risk of missing or incorrect paperwork (or an incorrectly drawn cheque), reduced court hours for filing out of court terms and the current long queues at the Royal Courts of Justice to file claims all combine to give solicitors nightmares – clients, please don’t leave it to the last moment!). 
All this brings us to last month’s case, R (Thornton Hall Hotel Limited) v Wigan Metropolitan Council (Kerr J, 23 March 2018).
The claimant operates Thornton Hall Hotel and the interested party, Thornton Holdings Limited, operates Thornton Manor. The hotels are competitors for wedding bookings and other functions. 

On 7 September 2011 Wigan Council’s planning committee resolved to grant planning permission for three marquees to be erected in the grounds of Thornton Manor. The hotel is in the green belt (as well as being listed grade II* – any Fawlty Towers references in this blog post are by the way wholly inappropriate as will be seen from the above image, courtesy of hitched.co.uk). According to the judgment the committee resolved that very special circumstances existed to allow for the erection of the marquees for a limited period of five years so as to secure “the “generation of an income stream” to enable restoration of the gardens, which were in decline and at risk“. The proposed permission with appropriate conditions was drafted. Indeed, a draft in that form was annexed to a section 106 agreement that was entered into on 11 November 2011. However, the actual permission that was issued on 20 December 2011 and placed on the council’s website omitted any conditions whatsoever, no restriction to five years, no nothing. 
The agent for Thornton Holdings cottoned onto this immediately and said nothing. However the problem was it seems not apparent to the council until the five years period expired and the marquees were not dismantled. The council took a report to committee in July 2017 accepting that a mistake had occurred. A little over a month later (and almost six years after the decision complained of, ie the issue of the incomplete permission) Thornton Hall Hotel Limited brought its proceedings, which were not opposed by the council – so the hearing was purely hotel versus competitor hotel. 
Kerr J allowed the late challenge, and quashed the permission, for nine reasons:
1. The error had been made in issuing the flawed permission. 
2. Permanent permission would not granted and would not have been in the public interest. 
3. “If the marquees are now allowed to stay permanently, the proper operation of the planning process will have been subverted.”
4. That would be contrary to the public interest. 

5. The interested party was aware of the error. 

6. “it follows that the interested party ran its commercial operation at Thornton Manor from 22 December 2011 knowing that the presence of the marquees after 19 December 2016 would be, at the very least, a matter of possible controversy and possible legal challenge. It was not, in my judgment, realistic to rely on expiry of the three month limitation period without also bringing the issue into the open, which the interested party decided not to do.”

7. It follows that the interested party cannot say that it would be prejudiced by the quashing due to lost bookings. 

8. “it is said by the interested party that it would be detrimental to good administration if the marquees have to be removed. Normally, detriment to good administration in public law cases relates to the undesirability of interfering with the provision of public services rather than commercial interests. I see no detriment to good administration in rectifying the error. I think it is detrimental to good administration that the marquees are still there. Good administration includes correct implementation of planning decisions.”

9. “the interested party signed the section 106 agreement embodying the omitted conditions including the five year time limit. Yet, it proceeds in this litigation as if it were not bound by the terms of that agreement. That seems to me only to compound the unconscionability of its position. It undertook in private law the same obligations as it denies in public law.”

As they say, hard cases make bad law. Whilst clearly no-one should have any sympathy for the interested party, which saw that it had by luck gained something it never deserved, there are really serious repercussions and I can’t see that other factors were taken on board by the judge, for instance:
1. There is no discussion of the public interest in being able to rely on permissions once free from legal challenge. When acting on the acquisition of properties or businesses, what do we now need to do to ensure that our client isn’t going to find that its permission is similarly flawed? Sometimes it will not be at all obvious. Does the permission, even if many years old, need to be checked against the resolution to grant? What about other latent flaws in it?
2. Surely, the council should have sought a revocation or modification order. No doubt it would have had to pay substantial compensation to Thornton Holdings but is that relevant? The permission was on the website and could have been challenged within the deadline. No-one challenged it (and why indeed should it be down to a competitor to spend money at risk on a challenge? What if it hadn’t?). It used to be considered that authorities, in considering whether to make a revocation or modification order, couldn’t take their potential compensation liability into account. To my mind it was a sad day when that changed as a result of the Supreme Court’s ruling in Health & Safety Executive v Wolverhampton City Council (Supreme Court, 18 July 2002). As a result, revocation and modification orders are almost unused. 

3. There are of course many examples of flawed permissions which authorities issued in error where hitherto the possibility of a late challenge does not appear to have been considered. (See some of them in my 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions). Is this ruling, even if only slightly, going to open the floodgates, particularly in relation to the errors that most frequently occur on section 73 permissions where it turns out that previous restrictive conditions have been lost, for example as to the types of goods that may be sold from a retail park?

Does anyone knows whether an application for permission to appeal has been made? I would welcome views as to how we all take on board the practical implications of this case. Or do we simply regard it as turning on fairly extreme facts? I’m not so sure. 

Simon Ricketts, 7 April 2018

Personal views, et cetera


No conditions, you say?”

Not In My Neighbourhood

To my mind, the problems with neighbourhood plans that I listed in my 19.2.17 blog post haven’t gone away. 

In fact, two changes to the neighbourhood plan process that were switched on from 19 July 2017 by the Neighbourhood Planning Act 2017 (Commencement No. 1) Regulations 2017 will just bring the issues to the boil at an earlier stage:

– section 1 of the 2017 Act gives decision makers a duty to have regard to neighbourhood plans as a material consideration once they have been examined, prior to their having been approved in a neighbourhood referendum or finally made (ie ‘adopted’ in local plan language). 

– section 3 of the 2017 Act requires decision makers to treat a neighbourhood plan as part of the statutory development plan once they have been approved by a referendum (unless the local authority then decides not to make it). 

In the meantime, the last few weeks have seen various rulings from the High Court and decision letters from the Secretary of State that demonstrate the complexities, uncertainties and tensions that are arising. 

Farnham Neighbourhood Plan

Bewley Homes Limited v Waverley District Council (Lang J, 18 July 2017) 

The claimants, Bewley, Wates and Catesby, were three development companies unhappy that their respective development sites were not allocated for development in the draft Farnham neighbourhood development plan. 
The case illustrates the real difficulties that arise both with grappling with detailed issues during the examination process and seeking to assert, when the report has been published, that the examiner’s reasoning is deficient. 
The claimants’ first line of attack was that the examiner was wrong to conclude that the draft plan complied with the basic condition of being in conformity with the strategic policies of the 2002 local plan. 
Lang J sets the bar very low in terms of the extent of the examiner’s duty to give reasons for the conclusions in his report: “I consider that an Examiner examining a neighbourhood plan is undertaking a function which is narrowly prescribed by statute and he is subject to a limited statutory duty to give reasons. It is distinguishable from the function of an Inspector determining a planning appeal, where the duty to give reasons is expressed in general terms.”
Secondly, she makes clear that the requirement that the neighbourhood plan must be in general conformity with strategic policies in the relevant local plan is pretty loose in practice: “The authorities establish that the phrase “in general conformity” is a flexible test which allows for some differences. The plans do not have to match precisely. It was a matter of planning judgment for the Examiner to decide whether the degree of the differences was such that he could not properly find that “the making of the [plan] was in general conformity with the strategic policies in the development plan”, as required by paragraph 8(2)(e) of Schedule 4B. For that purpose, he was required to consider the plan as a whole.”



The judge found that it was sufficient that the examiner referred to his consideration of Farnham Parish Council’s Basic Conditions Statement, from which it could be taken that he accepted Farnham’s Basic Conditions Statement as the basis for identifying the strategic policies in the Local Plan 2002.
Lang J noted that even if the reasoning had been flawed, in the light of the Court of Appeal’s ruling in DLA Delivery, “the Examiner could lawfully have adopted a different route, holding that the strategic policies restricting housing development had become time-expired in 2006 and were now redundant, and could be disregarded.”
The claimants’ other grounds of challenge arose from detailed evidence and submissions that they had made on issues relating to SANGS land and relating to a landscape study on which a key policy in the draft plan was based. It is clear that the developers had approached both issues in some forensic detail. However, the judge was satisfied with the light-touch way in which the matters had been addressed in the report:

“It was sufficient that the Examiner recorded at paragraphs 2.4, 2.7 and 2.8 that he had considered all the written material submitted to him, together with the discussions at the public hearing, all of which provided him with sufficient information to enable him to reach his conclusions. The main points raised by the Claimants were adequately addressed in the report and the Examiner’s conclusions were made sufficiently clear
.”

“The Claimants invited me to infer that the Examiner did not consider the Wates’ material because he did not refer to it. However, given the limited scope of his examination, he was not required to refer specifically to the evidence and representations presented by the Claimants, and the points raised therein. There was a large volume of evidence and these were not principal documents. It was sufficient that the Examiner recorded that he had considered the representations. He also stated at paragraphs 2.4, 2.7 and 2.8 that he had considered all the written material submitted to him, together with the discussions at the public hearing, all of which provided him with sufficient information to enable him to reach his conclusions
.”

Faringdon Neighbourhood plan

Hoare v Vale of White Horse District Council (Deputy High Court Judge John Howell QC, 7 July 2017)
Here policy 4.5B in the draft plan sought to safeguard Wicklesham Quarry for employment uses following completion of quarrying and restoration activities on the site and to support such development on it provided that there is a demonstrable need for it, no other suitable site closer to the town centre is available and certain other conditions are met.
The claimant was a local resident objecting to the allocation. 
The court took a similar approach as in Bewley to complaints as to the lack of general conformity with strategic policies in the local plan:


“The phrase “strategic policies” is, like “general conformity”, inherently imprecise, and it is not one in my judgment to which the court should seek to give a spurious degree of precision. Which policies in a development plan warrant that classification will inevitably involve a question of planning judgment that will be framed (but not necessarily exhausted) by the objectives of the particular plan and the policy’s significance in relation to their achievement and to the character, use or development of land in the area to which the plan relates which it seeks to promote or inhibit. The more central or important the policy is in relation to such matters the more likely it will be that it may be a “strategic policy” in that plan. Its identification as “strategic” or as part of the “strategic policies” in that plan may well provide a good indication of its significance. But the fact that it is not so identified does not necessarily mean that it is not a strategic policy and its identification as such does not necessarily mean that it is.”



The claimant also submitted that Policy 4.5B is about a “county matter”, which is a category of “excluded development” that cannot lawfully form part of a neighbourhood plan; and that the District Council erred in treating the quarry as “previously developed land” for the purpose of the NPPF. 
The deputy judge held that the policy was not about a county matter, given that it sought to safeguard the Quarry for employment uses following the completion of quarrying and restoration activities on the site: “The provision which is excluded from a neighbourhood plan is not any provision about any development in respect of land which is the subject of a restoration condition or an aftercare condition. It is any provision about development which “would conflict with or prejudice compliance with” such a condition. There may be operations or uses that can be carried on on such land without doing so. Moreover there is nothing to preclude a neighbourhood development plan making provision about a development that may be carried out on land subject to such conditions but only after they have been complied with. That may in fact be desirable in order to provide guidance about the future use of the land. Thus in my judgment the mere existence of such conditions applicable to an area of land does not mean that no provision about that land may be made in a neighbourhood plan.”



The deputy judge agreed that the council had indeed been wrong to categorise the site as previously developed land, given the restoration condition. However, he did not consider that the error was material to the outcome of the plan and declined to quash the plan on that basis.

 
Not easy to challenge a neighbourhood plan, is it?

Central Milton Keynes Business Neighbourhood Plan

The Secretary of State issued his decision letter on 19 July 2017, granting planning permission to Intu Milton Keynes Limited for extension of the Intu Milton Keynes shopping centre. The application was supported by Milton Keynes Council but had been called in by the previous Secretary of State Greg Clark in November 2015, who indicated that for the purposes of determining the application he wished to be informed as to “the consistency of the application with the development plan for the area including the Central Milton Keynes Business Neighbourhood Plan”.

The Central Milton Keynes Business Neighbourhood Plan was England’s first business neighbourhood plan. Central Milton Keynes Town Council objected to the application. As part of its objections it sought to portray the proposals as contrary to policies of the Neighbourhood Plan seeking to protect semi-public open space in Midsummer Place and seeking to retain Central Milton Keynes’ classic grid pattern.

However, the Secretary of State agreed with his inspector’s conclusion that the application was “in accordance with development plan policies, including those in the Neighbourhood Plan, and is in accordance with the development plan overall”.

The inspector indicated that her finding was “based on a balanced interpretation of Policy CMKAP G3. Had I taken an absolute approach to the policy, the reduction in the quantity of semi-public open space, would have resulted in a breach of the policy. Nevertheless, the proposed development would have been consistent with the development plan as a whole. In the final instance the considerable benefits of the proposal would have been material considerations sufficient to indicate that it should be determined other than in accordance with the development plan”. 



Buckingham Neighbourhood Plan

The Secretary of State declined to follow his inspector’s recommendation and, by his decision letter dated 17 July 2017, refused planning permission to Bellway Homes for a development of 130 dwellings in Buckingham. The inspector concluded that the neighbourhood plan was silent as to the proposed development of the application site. The Secretary of State disagreed:

“the larger housing sites, representing both the acceptable location and level of housing, are specifically identified and allocated in the BNDP. Both larger sites and the smaller windfall sites being confined to within the settlement boundary (HP7). The application site, being both unallocated and outside the settlement boundary, falls within neither category above and, as a consequence, the Secretary of State considers the proposals are not policy compliant. This is a policy conflict to which the Secretary of State attaches very substantial negative weight in view of the Framework policy (paragraphs 183-185) that neighbourhood plans are able to shape and direct sustainable development in their area and that where an application conflicts with a neighbourhood plan, planning permission should not normally be granted (paragraph 198).


Barnham and Eastergate Neighbourhood Plan & the Walberton Neighbourhood Development Plan

 Yet another application called in so that the Secretary of State could consider whether development proposals (for 400 dwellings as well as commercial development in Fontwell, West Sussex) were consistent with (here two) neighbourhood plans. The Secretary of State granted planning permission, by his decision letter dated 13 July 2017, finding that the proposals were indeed consistent, “subject to careful consideration at the reserved matters stage”. 
In relation to each of these applications, call in by the Secretary of State on neighbourhood plan grounds has been directly responsible for significant delays, of at least 18 months. In each of the applications there has been significant debate, argument and uncertainty as to the meaning of neighbourhood plan policies – perhaps no surprise given the light touch, difficult to challenge, nature of the neighbourhood plans examination process.
Isn’t it time for a proper review of the costs and benefits of the neighbourhood plans system as it is currently operating?
Simon Ricketts, 22 July 2017

Personal views, et cetera

Viability & Affordable Housing: Update

This is a supplement to my 28 May 2017 Affordable Housing Tax blog post, since when:
Politics, people
The avoidable tragedy on 14 June of Grenfell and its aftermath – with its residents needing to be rehoused and concerns as to the fire safety of many other council housing blocks – has surely focused attention on the challenge of providing adequate housing.
Except that by cruel irony this has come precisely when the Government is of course having to face other challenges as a result of the 8 June election. Despite the Conservatives’ manifesto promises in relation to “social housing” (later confirmed to be in fact not social housing) and changes to compulsory purchase processes, the background notes to the Queen’s Speech on 21 June simply said this on housing:

HOUSING


“Proposals will be brought forward to […] help ensure more homes are built.” 

We have not built enough homes in this country for generations. In order to fix the dysfunctional housing market, we need to build more of the right homes, in the right places, and ensure the housing market works for all parts of our community. 


This will help to tackle the increasing lack of affordability by bringing more properties onto the market. It will slow the rise in housing costs relative to the rise in wages, and help ordinary working people gain better access to this most basic of necessities. It will help more ordinary working families buy an affordable home and will bring the cost of renting down. 


In February we published a Housing White Paper, which proposes end-to-end action across the whole housing system, with measures to: 

    * release more land for homes where people want to live; 


    * build the homes we need faster; 


    * get more people building homes; 


    * support people who need help now.

We will deliver the reforms proposed in the White Paper to increase transparency around the control of land, to “free up more land for new homes in the right places, speed up build-out by encouraging modern methods of construction and diversify who builds homes in the country” (p.70). 
We will consult and look to take action to promote transparency and fairness for leaseholders. We will look at the sale of leasehold houses and onerous ground rents, working with property developers, the Competition and Markets
 Authority and others as outlined in the Housing White Paper. 


Key facts 


Getting more homes built 

    * In 2016, the median house price in England was nearly eight times the median earnings – an all time record high. 


    * Home ownership among 25-34 year-olds in England has fallen from 56% in 2005/06 to 38% in 2015/16, whereas the percentage of 25-34 year-olds living in the private rented sector increased from 24% to 46% over the same time period. 


    * 189,650 net additional homes were delivered in 2015/16 in England, up 11% on 2014/15 and the highest level since 2007/08. We need to sustain that momentum to meet the affordability challenge. All credible sources agree we need between 225,000 and 275,000 new homes per year to tackle this problem. “

Are we moving into a period when local rather than national government will have to make the running, regardless of political complexion? Plus ça change, perhaps. Nickie Aiken, leader of Conservative-run Westminster City Council, gave a no-holds-barred speech to the London Real Estate Forum on 13 June 2017:
“There’s no time for on-going pleasant and cosy chats that might improve things for the better at some undefined point in the future.”

“My view is that too many times we have not always pushed back enough in requiring affordable homes onsite, have buckled on viability or surrendered to the idea that brutal market economics simply denies housing opportunities for most people and that is just a harsh fact of life.”

“If you are a developer who wants to invest in and be invested in the future of our city for the long haul you are very welcome.

However, if you are just a speculator who wants to make a fast buck by building properties that only oligarchs and absent overseas investors can afford, you are in the wrong borough.
It’s good for a politician to make statements such as this but it’s not so popular (although equally true) to say that viability is still a challenge on many schemes. Many sites do attract a high market value regardless of any developer’s proposal (even when circular arguments are avoided) and why would the owner relinquish the site at a loss? Sales prices and costs budgets cannot be guaranteed. Development values are maximised by targeting the most profitable segments of the market and in the approach taken to density, yes to maximise return, but also to make the affordable housing numbers work on top of CIL and other non-negotiable requirements. Criticise from the side lines but would you speculate or lend your own money on any different or more altruistic basis, given the commercial and political uncertainties to which any significant longterm project will be exposed to? For a decision maker to make the right judgment call that maximises both the amount of housing that will actually be delivered and, within that, the amount and range of affordable housing (rather than ending up with nothing more than homes on paper, an unimplemented permission), is never going to be easy. What would make it easier would be:
– closer prescription as to the appropriate methodology to be followed – and for that methodology to follow economic reality as closely as possible so that, on the one hand, developers cannot avoid their proper obligations but, on the other, equally importantly, so that they still have every incentive to develop.  

– alongside that greater prescription, real penalties for those who game the system and bring it into disrepute. 

– due recognition for genuine altruism – how can we encourage good behaviour?

It is crucial to crack this because what the public perhaps doesn’t appreciate is the degree to which affordable housing subsidies are being left to be provided by the private sector – see for example the government’s latest statistics (April 2009 to March 2017) as to HCA/GLA funded affordable housing starts/completions by tenure type.
High Court
The current realities of viability negotiations have been exposed to the light in Minerva (Wandsworth) Limited v Greenland Ram (London) Limited (Rose J, 23 June 2017), a contractual dispute over an overage payment that Minerva, seller of the Ram Brewery site, successfully claimed from its purchaser, Chinese developer Greenland for securing a section 73 permission enabling a tower within the redevelopment scheme to be two storeys higher than initially approved. The factual account by Mrs Justice Rose is relentless in its detail.  
Appeal decisions
One theme of the Minerva case was the way in which the different parties’ viability consultants arrived at vastly differing figures, given the uncertainties as to the approach to be taken to, for instance the hypothetical land cost (benchmark land value) to be taken into account. Whilst the Mayor has set out his preferred approach in his draft affordable housing and viability SPG, the debate has continued and there have been two decision letters this month where inspectors have had to arbitrate between differing approaches taken by appellant and LPA. 
I referred in my 18 June 2017 blog post to a decision letter dated 12 June 2017 concerning a site at the junction of Notting Hill Gate and Kensington Church Street in which Inspector David Nicolson considered that the site value of £33m within the appellant’s viability appraisal (and indeed agreed by RBKC) was too high and he consequently did not accept the appellant’s position that affordable housing “could not be provided on site or, more importantly, that there needs to be a loss of all the existing 20 social housing bed spaces on the site or a net loss in the borough“. The inspector gave little weight to an alternative use value approach and was sceptical as to any figure that might be arrived at using an EUV approach. In his view, in the absence of any planning permission, there was “little sound evidence to show that the site is more of an asset than a liability”. 

The 19 June 2017 decision letter issued a week later in relation to the proposed redevelopment of the former Territorial Army Centre, Parkhurst Road, Islington was highly unusual as the central issue for the inspector, Michael Boniface, to determine was “whether the development would provide the maximum reasonable level of affordable housing in accordance with the development plan”. The proposal, by Parkhurst Road Limited, was for 96 homes and related works. The appellant had purchased the site for £13.25m in May 2013 from the Ministry of Defence. 
At the inquiry the appellant offered to provide 10% affordable housing (up from an initial position that 0% was justified given the viability position). Islington Council’s final position at the inquiry was that it would accept 34% (down from an initial requirement of 50%). The main issue between the parties was as to the appropriate land cost to be allowed for. The benchmark land value argued for by the appellant was £13.26m, a figure established at a previous inquiry, and sought to support the figure by reference to various comparables. The council argued for the EUV+ (existing use value plus premium) approach advocated for by the Mayor in his draft SPG and put forward a figure of £6.75m, which approach and figure was favoured by the inspector. The inspector was also not satisfied with the review mechanism that was proposed. 
Of note for other schemes in Islington, the inspector did not support the council’s proposed obligation, pursuant to its “Wasted Housing Supply” SPD, that would have required that none of the dwellings be left unoccupied or unused for a period of three months or more. The inspector did not consider on the evidence that the obligation was justified or that it could be properly and fairly enforced.
What next?
Obviously all eyes are on Alok Sharma, new housing and planning minister, for some hint of the approach that he will take. 
In the meantime, in London, the adoption of the Mayor’s affordable housing and viability SPG in July will provide more certainty, together with first sight of his draft Replacement London Plan later in the year. 
But ahead of that, an announcement is due on 26 June as to the Mayor’s proposed changes to his CIL charging schedule (to come into effect in 2019). Just remember that almost every penny of any extra charges levied on housing schemes will simply feed through into viability assessments and will reduce any surplus available for affordable housing. 
Time finally for a quick plug: LD Events’ annual Viability & Planning conference is taking place on 28 September 2017. 
Simon Ricketts 24.6.17
Personal views, et cetera

(Town Legal acted for the appellant in relation to the Parkhurst Road inquiry)

The Tomorrow People: Planners & Technology

This blog post scratches at the future of planning, which is a ridiculous topic in some ways. After all, whether the political priority of the day is to predict and provide, or to intervene and influence, the whole of planning is about the future (albeit learned from the past, and carried out in the inevitable fog of the present). Isn’t that why it is so fascinating?
Do we really know what lies ahead, however robust the OAN, however detailed the TEMPro modelling, however in-depth the OBR forecasting?
Politically, economically, technologically, the future comes at us fast – the outliers are always here already if only we notice them. 
Focusing on technology in the last month:
We have seen massive IT resilience issues in the light of the Google Docs malware attack, particularly affecting public services reliant on older software, and in the light of the BA global systems failure.
We have seen the partnership announced between Moda Living and Uber to provide up to £100 monthly Uber credits to Moda tenants, who would forego a parking space.

We have also seen Google’s revised plans for its Kings Cross development, and indeed its Toronto plans also announced last month. Bloomberg’s Toronto piece is worth setting out in its entirety:

“Sidewalk Labs LLC, the urban innovation unit of Page’s Alphabet Inc., has applied to develop a 12-acre strip in downtown Toronto, responding to a recent city agency request for proposals, according to two people familiar with the plans. Details of the proposal are private, but these people said the bid fits with the company’s ambition to create a connected, high-tech city or district from scratch.

Last year, the company began talking openly about building a theoretical urban zone “from the internet up,” with some of the same tools and principles that have fueled success at many tech companies. Before applying in Toronto, Sidewalk Labs discussed creating a district in Denver and Detroit with Alphabet executives, according to the people. They asked not to be identified discussing private plans.

In a speech last week at the Smart Cities NYC conference, Sidewalk Labs Chief Executive Officer Dan Doctoroff said the firm is exploring development of a “large-scale district.” 

“I’m sure many of you are thinking this is a crazy idea,” Doctoroff said, according to news website StateScoop. “We don’t think it’s crazy at all. People thought it was crazy when Google decided to connect all the world’s information. People thought it was crazy to think about the concept of a self-driving car.”

A representative for Sidewalk Labs confirmed Doctoroff’s speech but declined to comment further. Doctoroff was CEO of Bloomberg LP and worked as deputy mayor of New York City when Bloomberg founder Michael Bloomberg was mayor. 

Canadian officials set up Waterfront Toronto, a public corporation designed to revitalize a 2,000-acre downtown plot, in 2001. Earlier this year, the agency requested proposals for part of that area: a new “community” called Quayside to be developed with a private “innovation and funding partner.” Quayside would be “a testbed for emerging technologies, materials and processes that will address these challenges and advance solutions that can be replicated in cities worldwide,” the city wrote in its invitation. 

Andrew Hilton, a spokesman for Waterfront Toronto, declined to comment on the applicants for Quayside or its funding structure. The agency plans to identify its development partner by June at the earliest, according to its proposal document.

Formed two years ago, Sidewalk Labs was among the first independent units of Google before it turned into the Alphabet holding company. So far, the most visible project is LinkNYC, a network of ad-supported Wi-Fi kiosks in New York City run by Intersection, a Sidewalk Labs investment.

But the vision extends well beyond corner kiosks and other “smart city” efforts that typically involve selling software and infrastructure to local agencies facing budget pressures. Doctoroff has spoken often about how technology like autonomous transit, high-speed internet, embedded sensors and ride-sharing services could transform urban life. He’s also hinted at tech’s ability to overhaul zoning rules and control housing costs, a particular interest of Alphabet’s Page. 

Technology-focused companies such as Google, Amazon, Tesla, Apple and Facebook (not to mention Bloomberg itself) are massive influences for all of us in the planning world, directly through their increasing space and employment requirements (with their HQs being medieval fortress cities of ancillary uses) but also through the scale of their pioneering ambition. 

Self-driving cars, drone deliveries, blockchain, smart cities – to what extent does our planning system even attempt to plan for, or at least not make more difficult to achieve, an internet-of-things future that is more connected, more without boundaries than we can quite imagine? When I started work in the 1980s I never imagined an email, let alone a smartphone, or an online purchase. And nor did any plan of the time. 
There’s this passage in the Conservatives’ manifesto:
“Digital technology will also transform the management of our national infrastructure. We are leading the world in preparing for autonomous vehicles and will press ahead with our plans to use digital technology to improve our railways, so that our roads and tracks can carry more people, faster, more safely and more efficiently. Smart grids will make the most efficient use of our electricity infrastructure and electric vehicles, and we will use technology to manage our airspace better to reduce noise pollution and improve capacity. We will step up our programme of support for businesses developing these new technologies, creating a better environment for them to be tested in the UK.”
Whatever the election outcome (which you in the future reading this after next Thursday will know – please tell), this is all obviously right. But how do we do it, and do it right? If the Conservatives return to office, rapid progress needs to be made in response to their Building Our Industrial Strategy green paper  from January 2017. 
We also need to examine whether our planning system is fit for the future. I have previously blogged as to how in my view the C classes of the Use Classes Order do not reflect modern ways of living. I don’t believe that the B classes of the Order reflect modern ways of working. 
Another passage in that manifesto caught my eye:
“Digital land 

And we will use digital technology to release massive value from our land that currently is simply not realised, introducing greater specialisation in the property development industry and far greater transparency for buyers. To make this happen, we will combine the relevant parts of HM Land Registry, Ordnance Survey, the Valuation Office Agency, the Hydrographic Office and Geological Survey to create a comprehensive geospatial data body within government, the largest repository of open land data in the world. This new body will set the standards to digitise the planning process and help create the most comprehensive digital map of Britain to date. In doing so, it will support a vibrant and innovative digital economy, ranging from innovative tools to help people and developers build to virtual mapping of Britain for use in video games and virtual reality.

Clearly that didn’t come from nowhere and googling led me to the really interesting wealth of material being created by the government-funded Future Cities Catapult on the Future of Planning. Their website has a series of blog posts, as well as a couple of papers with plenty of examples (with web links) of where emerging technologies are being used to improve planning processes:
 – Future of Planning: State of the Art Innovations in Digital Planning 
 – User Research Insights Report: Prototyping the Future of Planning 
For example:
– The GLA’s infrastructure mapping  
– Chicago’s State of Place walkability index

– Adelaide’s 3D city model  

stickyworld, being used by Canterbury City Council and the London Borough of Wandsworth

City Swipe being used in Santa Monica to learn citizens’ preferences and concerns about the city’s urban core. 

– and what about smelly maps

My personal experience is that local authorities’ online systems are now largely excellent, with most using similar indexing and searching systems. If you know what you’re looking for and have sufficient broadband capacity, the systems work.
The Planning Inspectorate needs to catch up in terms of online availability of appeal documents – its NSIPs unit is by comparison a paragon of excellence, driven largely by the modern, prescriptive, inclusionary, processes of the Planning Act 2008. 
Of course there are bearpits to be avoided with online availability of information, for instance, careful attention is needed to prevent the publication of sensitive personal data, as Basildon Council discovered to its cost last month with a £150,000 fine from the Information Commissioner
We also need to be thinking about how the planning system needs to adjust to a world of online campaigns and representations. In my 2014 Oxford joint planning law conference paper Heroes And Villains – Challenge And Protest In Planning: What’s A Developer To Do?, I put it like this:

“Via social media, we can readily show our frustrations and organise ourselves, quickly establishing a strong presence, strength in numbers and political influence, sharing data and knowledge.. Whilst there will always be a role for the old-fashioned demonstration with placards, has the traditional planning system yet caught up with the consequence of thousands of objections able to be generated on-line by use of SurveyMonkey and equivalent free software? How much detail does the objector need to provide for his or her objection to be registered and dealt with individually, and to what extent is the sheer quantity of objections received to a particular proposal a material planning (as opposed to a political) consideration? How are decision-makers and developers alike to cope with the occasional personalisation of campaigns? Some will recall the effigy of Secretary of State, Nicholas Ridley, that was burned by objectors following his announcement, that he was minded to grant planning permission for Consortium Developments’ proposed development of 4,800 homes at Foxley Wood in Hampshire in 1986 (subsequently overturned by his successor, Chris Patten). It is so much easier these days for objectors to turn up the heat on individuals via Twitter and Facebook from the comfort of their smartphone, often under a pseudonym. ”

Three years on, this is even more so. 

Away directly from planning, more widely in the industry, building information management (BIM) systems have already transformed construction and project management but only occasionally stray into earlier planning stages. 
Modelling has also reaped enormous benefits in the visualisation of development proposals as well as the modelling of the effects of development on daylighting, assisting for example with the excellent and challenging research document Guiding Light: Unlocking London’s Residential Density prepared by Gordon Ingram Associates in association with London First – partly using game engine software. 
When it comes to planning law, in my view we are way off the pace in terms of the technological applications that would make answers more accessible for the public and make professional planning lawyers’ work quicker (ie cheaper) and more accurate. For example:
– wouldn’t it be good to be able to carry out a thematic search within an authority’s website of all decisions in relation to a specific policy?
– why should Compass effectively have a monopoly in relation to thematic searches of planning appeal decisions?

– Why is http://www.gov.uk such a mess as a resource and a backward step on the old departmental sites?

– why is due diligence on planning aspects of real estate transactions such a regular reinvention of the wheel without the standardisation that the City of London Law Society has for instance applied to certificates of title?

– why has the Law Society still not updated since 2010 (2010! Pre-CIL even) its model section 106 agreement

– why is there no reliable way of checking with the High Court whether judicial review proceedings have been lodged?

– for on line access to court transcripts, why are we reliant on the fantastic BAILII, the British and Irish Legal Information Institute , a charity reliant on donations  ?

Don’t we all need greater processing power?
This was already feeling current as a topic and then I noticed that PlanTech Week is happening from the 12 to 16 June. You never know what’s around the corner. 
Simon Ricketts 3.6.17
Personal views, et cetera 

Newmarket: Horses, Houses, Politics, Planning

Let’s please constrain the circumstances in which the Secretary of State can intervene in planning decision-making. Who is going to carry on investing in housing land promotion when, frankly, the outcome of betting on the horses can be more predictable?
The day before the Supreme Court’s ruling in Suffolk Coastal (where the Supreme Court justices examined the semantic intricacies of paragraphs 49 and 14 of the NPPF, extolled the virtues of expert inspectors and recognised the need to boost the supply of housing), judgment was handed down in Moulton Parish Council and the Earl of Derby v Secretary of State  (Gilbart J, 9 May 2017). 

The case concerned the controversial proposals by the Earl of Derby for residential development in Newmarket, in the heartland of the British horseracing industry. 
The Secretary of State had in 2012 dismissed an appeal against refusal by Forest Heath District Council of planning permission for mixed-use development including up to 1,200 dwellings, 36,000 sq m of B1 employment floorspace. Whilst various representatives of the horse-racing industry had argued the scheme would harm their interests, through the traffic and other effects arising, the appeal was only dismissed on the ground that the scheme was premature, in that due to its strategic implications, it should be considered through the development plan process. 
There had been a policy in the local plan that included an urban extension for 1,200 dwellings north east of Newmarket that included the appeal site. However, the grouping of horseracing interests had succeeded in quashing that policy and related housing provision policies in Save Historic Newmarket Limited v Forest Heath District Council  (Collins J, 25 March 2011). 
The Council carried out a “single issue review” of its housing policies, dealing with overall housing provision and distribution, and with site allocations and published a preferred options document for consultation. The review proposed a mixed use development, including 400 dwellings, on part of the previous site, and the Earl of Derby brought forward a planning application for that level of development. The application was resolved to be approved by the district council (after overcoming an attempted judicial review by objectors who sought unsuccessfully to overturn a negative EIA screening opinion) but it was called in by the Secretary of State on 11 July 2014. The inquiry took place in April and May 2015, the inspector’s report was dated 9 July 2015 and yet the Secretary of State didn’t issue his decision  until 31 August 2016. The Secretary of State rejected the application for a number of reasons, including concerns as to highway safety, raised again in no uncertain terms by those representing the horseracing industry.
So, a year for the Secretary of State to consider the inspector’s report and over two years since his intervention in the local decision-making process! One might think that the decision, which rejected the inspector’s recommendation that planning permission be granted, would be bullet-proof in its reasoning after such a delay. Hmm. The decision has been quashed by Gilbart J following a challenge brought by two parties, one unsurprisingly being the appellant, the Earl of Derby, but the other unusually being a parish council, Moulton, concerned at the additional pressure for development that would arise in its parish if the proposals do not proceed at the application site – after all, housing has to go in someone’s back yard, somewhere, sometime, doesn’t it?
The application will now have to be redetermined. 
I want to consider the following questions which arise out of this sorry but not unusual tale:
– what went wrong in the Secretary of State’s reasoning?

– why did his decision take so long?

– what is the role in practice of lobbying and political pressure in ministerial decision-making?

What went wrong in the Secretary of State’s reasoning?



The claimants’ successful grounds of challenge were that the Secretary of State:
– failed to apply his own policies set out in the NPPF; and

– failed to have regard to his own previous decision “where he had reached conflicting conclusions to those he now holds on matters relating to highway safety, or has reached a conclusion on safety without evidence, or which is irrational“.

A world away from the complexities facing the Supreme Court in Suffolk Coastal, the Secretary of State’s mistake on the first ground was an obvious one. The inspector reported that there were no up to date development policies in relation to housing provision and that therefore paragraph 14’s “tilted balance” in favour of sustainable development applied. However, the Secretary of State fails to address this material consideration at all in his decision letter. 
Gilbart J: “In this particular decision, it is plain that the effect of the tilted balance in NPPF [14] was of considerable importance. It was one of the eight main issues identified by the Inspector, and much debate between the parties. While the effect of the change in the housing supply position after the Inspector’s report had been received could have affected the weight to be given to the arguments about the 5 year supply, the issue relating to the important absence of housing policies remained. One of its particular contexts was that this site would meet important objectives of policy in terms of sustainability, as well as the fact that it was best and most versatile agricultural land. This is a local authority area where more land has to be found for housing, as suggested by the emerging local plan allocations.
In relation to the second ground, the inspector and Secretary of State had found in the case of the larger scheme that highway safety problems were not likely to arise. There was no explanation as to his volte face.

Gilbart J: “There is not a single reference by the SSCLG to the previous decision, let alone to the previous Inspector’s Report. In my judgement, the very least that was required of the SSCLG was to acknowledge the fact of the previous conclusions, and face up to the fact that he was being asked to reach conclusions which on any view were entirely at odds with the those he had reached in 2012. NHG had not held back in its case at inquiry that the first decision was wrong on this issue, with which contention the Claimants (and FHDC) disagreed, as did the Second Inspector. But despite that, it received no mention or consideration at all in the Decision Letter.”

How wasteful for such an important decision to fall at two basic hurdles – hardly Brecher’s Brook, were they? A single careful sentence in each case would in my view have saved the decision letter. 
Why did the Secretary of State’s decision take so long?


Call-in in this case led to a delay of over two years before his decision was received and the re-determination process will now add significantly to that delay, at no-one’s cost save for the Earl of Derby and indeed those in housing need. 
Gilbart J gives this explanation for the delays that occurred after the inspector’s report was received by the Secretary of State on 9 July 2015:
“About four months after the inquiry had finished the [Newmarket Horsemen’s Group] elected to make further representations in September 2015, as did the local member of Parliament the Rt Hon Matthew Hancock MP. The SSCLG circulated them for comment at the end of October 2015. He then circulated the comments he had received.

In February 2016, the Planning Consultants for the Claimant Lord Derby made representations, which were also circulated for comment. The responses received were also circulated. In April 2016, the SSCLG circulated the representations he had received, and also invited comment on the then recent Court of Appeal decision in Suffolk Coastal District Council v Hopkins Homes Ltd & Anor [2016] EWCA Civ 168, circulating the further responses on 5th May 2016.”

So we can see that the problem comes down to a combination of a slow decision-making process and the opportunities that gives third parties to seek to bolster their case with post-inquiry representations, relying on the inevitability of changing circumstances over time; indeed, the longer the decision-making takes, clearly the more vulnerable it is to such interventions. No doubt, the ministerial changes that followed the June 2016 referendum were another factor but my basic principle still holds, in my view. 

It may be said that the Secretary of State needs to be allowed sufficient time to make a considered decision. But the outcome of the challenge demonstrates that time does not ensure quality of outcome. A study as to what was happening week by week in relation to the decision, from July 2015 to August 2016 would surely be instructive. 
What is the role in practice of lobbying and political pressure in ministerial decision-making?

The principles to be applied by the Secretary of State in deciding to call in an application for his own determination have always been left extremely flexible. As summarised in a helpful July 2016 House of Commons library briefing paper on calling in planning applications , the 1999 ‘Caborn principles’ still apply:

“Such cases may include, for example, those which in his opinion: 

* may conflict with national policies on important matters; 


* [may have significant long-term impact on economic growth and meeting housing needs across a wider area than a single local authority]; 


* could have significant effects beyond their immediate locality; 


* give rise to substantial cross-boundary or national controversy; 


* raise significant architectural and urban design issues; or 
• may involve the interests of national security or of foreign Governments. 

However each case will continue to be considered on its individual merits “. 

The list of recent call-in decisions is a pretty long one.

A decision to call in or not to call in an application is barely justiciable in practice (as long as properly reasoned to a basic extent) given the breadth of the criteria. 
In this case the reasons stated in the inspector’s report as to why the Secretary of State had called in the application (for a relatively limited amount of development, against the background of an emerging supportive local development plan policy) were apparently:
“3.1  The proposal may have significant long-term impact on economic growth and meeting housing needs.

3.2  The proposal could have significant effects beyond its immediate locality.

…which tell us nothing.  
This obviously leads to speculation, however ill-founded. The Independent for instance inevitably ran a story, “Tory minister lines up with racing royalty against new homes”  on 16 August 2014. 

The political pressure being applied can surely not be doubted however. Recall as well that post-inquiry representations were being made against the scheme by the local MP,  Matthew Hancock. 
Even when these representations are made openly, one worries as to the further politicisation of this quasi-judicial process. But often there is suspicion that there are informal as well as formal attempts to influence ministerial decisions. The judiciary has recently of course in Broadview Energy Developments Limited v Secretary of State  (Court of Appeal, 22 June 2016) deprecated informal lobbying attempts by MPs, in that case Andrea Leadsom MP’s attempts to stop a wind farm scheme, with a conversation in the Commons tea-room and numerous emails from her to the minister, including one referring to her “badgering [him] in the lobby”. Longmore LJ in that case indicated that he “would not endorse that part of the judge’s judgment [at first instance] in which he said that lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP with its implication that such lobbying was permissible even when the Minister is making a quasi-judicial decision in relation to a controversial planning application. MPs should not, with respect, be in any different position from other interested parties.”

We have seen the influence that individual MPs can bring to bear on ministers, with MP for Sutton Coldfield, Andrew Mitchell MP, having brought about the Secretary of State’s holding direction (now lifted) in relation to the Birmingham development plan, as a result of his concerns as to proposed green belt housing allocations in his consistency. 

It may be said that planning cannot be separated from politics but it is depressing to see. It was also eyeopening to see that of the seven decisions issued by the Secretary of State in his last day before purdah, with the parties suddenly in pre-election mode, six were to refuse planning permission. When the decision as to whether a major scheme goes ahead is not to be taken at local level, with the promise of a quasi-judicial assessment, how do we ensure that the role of the inspector is respected: the careful evidence taking and testing at inquiry and neutral evaluation of that evidence as against the statutory criteria? Our role becomes that of guessers as to how the politics, against the deployed legal tactics on all sides, will play out.

This is how the next Secretary of State could make a difference: fewer call ins and fewer recovered decisions, but clearer guidance as well as renewed attempts to ensure that up to date local plans are in place. But what are the odds?
Simon Ricketts 13.5.17
Personal views, et cetera