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.
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?
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??
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.
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.”
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…”
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).
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).
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
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  PTSR 1132 at -). 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…!)
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).
“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:
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?
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  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.
“We are continuing to issue decisions where we can and 1,625 have been issued across all case types since lockdown restrictions started. Not being able to visit sites and hold public events has, however, clearly had an impact on our ability to process cases and the time it is taking to reach a decision.
As explained in our guidance, to limit the spread of the Coronavirus we have postponed site visits up to the middle of May, as well as most hearing and inquiry physical events where these would otherwise have taken place in May. Our case officers have notified parties of event postponement until further notice. We will be issuing updated information on arrangements for postponed events as soon as practicable in line with latest government advice.
We have been able to progress cases where:
• the physical event was concluded prior to lockdown restrictions;
• no physical event is required to make a decision; or
• a physical event is still further in the future and preparatory activity can continue (e.g. via telephone case conferences).
New cases continue to arrive at normal levels and are being registered and processed as far as possible. As at 23 April, there were 9,591 open cases. In the last three weeks we have seen the number of open cases rise by 337.”
(It is encouraging, in passing, to note that appeals are still being made at normal levels – that is our experience too).
The Planning Inspectorate is anxious to reassure that it is moving quickly to catch up:
• “The first fully ‘digital’ hearing is due to take place on 11 May.
• We are preparing for additional cases to be heard by digital hearings/inquiries in May/early June with a view to scaling up digital events further over June/July.
• We are assessing postponed cases to establish whether they can proceed by digital, traditional or a ‘hybrid’ approach, in order to re-arrange these in due course accordingly.
• A trial of ‘virtual site visits’ is underway involving thirteen Inspectors.
• Five local advisory visits have taken place remotely (critical for helping Local Planning Authorities to progress local plans and reduce the length of examinations).”
But is this fast enough? Can more be done? Could we see a leap forward in the way that planning hearings and inquiries are conducted?
After all, the planning inquiry process has been constantly adapting. Planning inquiries were first introduced in the Housing, Town Planning etc Act 1909 to consider objections to town planning schemes. The right to appeal against a planning decision was introduced in the 1932 Act, and the 1947 Act provided that all appeals were to be determined by public inquiry. Weirdly to us now, the procedures followed and the reasoning for decisions was kept secret until changes were made to implement some of the recommendations of the 1957 Franks Committee on Administrative Justice. We still refer to the three Franks Principles, of openness, fairness and impartiality.
This is what was said by the minister of the time in a 1957 Commons debate on the report:
“I must, however, return to a point I made in the opening of my remarks, that we must not complicate the procedures more than we can help. The great majority of objectors and appellants are small people. Quite a few present their own cases without professional assistance and for most people it is essential that the procedure should be simple, intelligible, quick, and cheap, as well as fair.”
Dear reader, of course we did then complicate those procedures, often through changes made with the best of intentions. When I started practice, there was no advance exchange of proofs of evidence. We all read the documents for the first time as they were being read out by the witness. No rebuttal proofs, no laboriously prepared cross-examinations or written closing submissions. Every procedural step that has been introduced, introducing frontloading of appeal preparation and evidence (good), minimising surprises (good), has by a sidewind elongated and complicated the processes (bad). There may now be a much more forensic and detailed examination of the issues, but where have we left those “small people”?
The Planning Bar is obviously at the sharp end of the current slowdown and has been trying to move things along.
It is of course hugely frustrating that the massive improvements to the inquiry appeals system brought about by the Rosewell review (see eg my 25 May 2019 blog post Pace Making: Progress At PINS) have been undone by this pandemic. The Rosewell changes, unlike possibly every previous reform of any aspect of the planning system, did not add complications, but modernised and streamlined it in many ways, with telephone case management conferences and the like now the norm. I assume that everyone saw the interview with Bridget Rosewell on last week’s second episode of Have We Got Planning News For You? Her frustration with the Inspectorate’s present apparent slowness to get virtual hearings and inquiries underway was apparent, talking about the need to “move forward as soon as possible” and extolling the “fairer access” that can be achieved in a “virtual environment”.
We should listen to Bridget.
(Indeed, to go off on a tangent, if I were Secretary of State for the day, I would presently quietly shelve “Planning For The Future” and instead ask Bridget, very nicely, to carry out “Rosewell 2”, this time a review, with similar practical focus, in relation to the planning application process, so as to identify opportunities for simplification and reduction of unnecessary paperwork. Step by step there are surely simple opportunities for improvement. Off the top of my head:
– Recommended word limits for supporting documents such as Planning Statements, Design and Access Statements and Environmental Statements (or application fee linked to size of the documentation)
– Removal of need for multiple hard copies of documents
– Modernisation of publicity requirements
– Recommended word limits for officers’ reports to committee
– Standardisation of wording of planning conditions
– Updated model section 106 agreement template (the Law Society’s current so-called template draft agreement dates from 2010!)
– Updated advice as to the types of application which properly should be dealt with by way of officers’ delegated powers
But of course, moving to virtual appeals, even on a temporary basis, is not easy. The interests of all participants, and potential participants, in the appeals process need to be taken into account. Whilst justice delayed is justice denied, justice has to be both done and be seen to be done.
I was struck by an assertion in the Landmark Chambers paper:
“ It is safe to proceed on the basis of a presumption that every participant in a planning appeal will have reasonable access to a means of participating in a remote hearing session unless they provide evidence to the contrary. Virtually every household has a telephone, and the vast majority of people have access to a computer or mobile device on which video conferencing is possible.”
This isn’t still true for a few members of my own family (well they all have a land line – but certainly couldn’t be expected to follow proceedings on a telephone). And indeed whilst the chattering classes are currently going on about Zoom and the rest of it, I know that many are finding it very difficult to access or be at ease on these platforms, surrounded by us lawyers and others who inevitably spend much of every day now speaking with a variety of people on screen and unwittingly developing new social norms and cues.
Any procedural solution does needs to meet the three principles set out in the paper:
– The common law requirements of fairness;
⁃ Article 6(1) ECHR – the right to a fair trial in civil cases;
⁃ Article 6 of the Aarhus Convention (“public participation in decisions on specific activities”).
But decisions as to procedure also need to have regard to “protected characteristics” under the Equality Act 2010, which of course include age and disability. Bridget is right that virtual hearings and inquiries would allow many to engage with the process who currently cannot, which is great as long as there are protections to make sure that some are not excluded.
In my view this is perfectly achievable for the majority of hearings and inquiries. I accept that (1) the inquiry process is very different from the court process and we cannot simply “read across” and (2) even in relation to the court process, there were some words of warning this week from the Court of Appeal in a family law case, Re A (Children) (Court of Appeal, 30 April 2020) – see paragraphs 49 to 56. However, let’s analyse the real position:
The only parties entitled to appear at a hearing are the appellant, the local planning authority and defined statutory parties. Everyone else is at the discretion of the inspector. As long as the inspector is confident that there is no third party, from whom the inspector feels he or she should hear, and who cannot participate adequately by some remote means, why should not virtual hearings proceed, as long as the proceedings are able to be viewed remotely (perhaps also with a transcript of what is said – not difficult at all – where there is any doubt as to whether there may be interested parties without adequate screen access)?
At inquiries, the parties only entitled to appear are the appellant, local planning authority, defined statutory parties and those who have (at their own request) become rule 6 parties. Again, if all of those parties are in agreement (with possible adverse costs award consequences for those who unreasonably refuse) and as long as the same approach can be taken in relation to other parties, why cannot inquiries proceed?
Site visits are less of a problem, whether accompanied or unaccompanied, and whether in fact still always needed, in the light of visual material now available.
Furthermore, as long as there are indeed adequate protections for those who should be heard at the hearing and genuinely cannot reasonably be expected to participate remotely, the change to a virtual process has the benefit of opening up access to so many other people. And imagine the benefits in future of being able to offer a “virtual” evening session at the next inquiry at your local town hall? That surely would be participative democracy.
Which is a long way of saying: I agree with Bridget.
Five out of five proposals for housing development have been approved by the Secretary of State so far in April 2020, in each instance in accordance with his inspectors’ recommendations.
1 April – Vauxhall Cross Island, Lambeth
The Secretary of State approved a called in application for “the construction of a mixed-use development comprising two towers of 53 storeys (185m) and 42 storeys (151m), with a connecting podium of 10 storeys (49m), containing office (B1), hotel (C1), residential (C3) and flexible ground floor retail and non-residential institution (A1/A2/A3/A4/D1) uses plus plant, servicing, parking and other ancillary space, the provision of hard and soft landscaping, the creation of a new vehicular access point on Wandsworth Road, a vehicular layby on Parry Street and other works incidental to the development”.
“The proposal would deliver 257 homes onsite, including 23 affordable, alongside a Section 106 payment of £30m for further off-site affordable housing provision. The Secretary of State notes that, citing LB Lambeth’s past record of utilising such payments, the Inspector was satisfied this would deliver a further 54 homes and provide a total of 30% affordable… The Secretary of State notes that a viability assessment demonstrated that this was the maximum amount achievable, and was accepted by LB Lambeth.”
The Secretary of State found that the proposals would be in accordance with the development plan. The market and affordable housing components of the scheme attracted “significant weight in favour. There would also be hotel, office and retail uses in an area identified for all three, alongside a new public square. All of these would contribute to the development plan’s goal of creating a new district centre in Vauxhall. This also attracts substantial weight in favour.”
(Town acted for the applicant).
1 April – Station Road, Long Melford, Suffolk
The Secretary of State allowed an appeal by Gladman Developments Limited for “outline planning permission for the erection of up to 150 dwellings with public open space, landscaping and sustainable drainage system (SuDS), and vehicular access point from Station Road, with all matters reserved except means of access”.
The Secretary of State found that the proposals were not in accordance with the development plan. In terms of other material considerations:
“The site is outside the settlement boundary, and would result in the development of a greenfield site into housing, which would cause visual harm. However, the settlement boundary is out of date, and the visual harm would be confined to the site itself, with limited impact on the wider settlement. This carries moderate weight against the proposal.
The proposal would provide up to 150 new homes, including around 53 affordable homes. Although the local authority can now demonstrate a supply of housing land above 5 years, this figure is a baseline and not a ceiling. Relevant to this appeal, the appellant has demonstrated there is a local need in this settlement, in line with the expectations of the development plan, for both market and affordable housing. The Secretary of State recognises that there is now a five-year supply of housing land supply. However, in the light of the identified local need, and the Government’s objective of significantly boosting the supply of homes (Framework paragraph 59), he considers that the housing delivery should carry significant weight. The proposal would provide land for a new early years centre, which attracts significant weight in favour. There would be economic benefits provided by the construction of the homes and from the new residents, which attract moderate weight. Improvements to existing public rights of way, public space and play areas, and biodiversity benefits each attract moderate weight in favour. Improvements to bus stops and footway connections attract limited weight in favour.”
7 April – Barbrook Lane, Tiptree, Colchester
The Secretary of State allowed an appeal by Gladman Developments Limited (again) for “outline planning permission for the development of up to 200 dwellings (including 30% affordable housing), provision of 0.6ha of land safeguarded for school expansion, new car parking facility, introduction of structural planting and landscaping and sustainable drainage system (SuDS), informal public open space, children’s play area, demolition of 97 Barbrook Lane to form vehicular access from Barbrook Lane, with all matters to be reserved except for access”.
The Secretary of State found that the proposals were not in accordance with the development plan. In terms of other material considerations:
“As the local authority are unable to demonstrate a five-year supply of housing land, paragraph 11(d) of the Framework indicates that planning permission should be granted unless: (i) the application of policies in the Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.
The proposal is an undeveloped agricultural site outside the settlement boundary, and the rural character of the site would change. This carries moderate weight against the proposal.
The proposal would provide up to 200 dwellings, with 30% affordable, helping the local planning authority achieve a five-year supply of housing land. This attracts significant weight in favour of the proposal. The proposal includes informal open space and safeguarded land for a school expansion, which carry limited weight. Although the site would change from rural to a housing estate, there would be little wider impact on the setting of the village as the site is well-screened. The scale of the proposal would not harm or prejudice local services, highways or residential amenity, and the site represents a sustainable location for access to jobs and services.
The Secretary of State considers that there are no protective policies which provide a clear reason for refusing the development proposed. The Secretary of State considers that the adverse impacts of the proposal do not significantly and demonstrably outweigh the benefits.”
22 April – Stanley Road, Cheadle Hume, Stockport
The Secretary of State allowed an appeal by the Seashell Trust “for the erection of a new school with associated kitchen and dining facilities, swimming and hydrotherapy facilities, infrastructure, drop-off parking, access, landscaping and ancillary works; the demolition of the Chadderton building, Orchard/Wainwright/Hydrotherapy/Care block, Dockray building, part of existing college, 1 Scout Hut and 1 garage block, and erection of new campus facilities (Use Class D1/D2 – Reception, Family Assessment Units, Family Support Services/Administration/Training/Storage Facility Sports Hall and Pavilion) with associated infrastructure, parking, landscaping and ancillary works; and up to 325 dwellings (Use Class C3) in northern fields with associated infrastructure, parking, access, landscaping and ancillary works”.
The site is in the green belt and the Secretary of State found that the proposals were not in accordance with the development plan. However, these were his overall conclusions:
“As Stockport Borough Council cannot demonstrate a five year housing land supply, paragraph 11(d) of the Framework indicates that planning permission should be granted unless: (i) the application of policies in the Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.
The Secretary of State considers that the harm to the Green Belt carries substantial weight, the ‘less than substantial’ harm to the setting of the listed building carries great weight and harm to the landscape carries moderate weight. The Secretary of State considers the proposal will harm agricultural land, habitat, non-designated heritage assets and demand for mainstream school places and attributes very limited weight to each of these harms.
The Secretary of State considers the need for the redevelopment of the Special Educational Need school carries substantial weight, the housing benefits overall carry very significant weight, and the provision of employment and community benefits each carry moderate weight.
The Secretary of State considers that the above benefits clearly outweigh the harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances exist to justify this development in the Green Belt. In the light of his conclusion on this and the heritage test is paragraph 18 above, the Secretary of State considers that there are no protective policies which provide a clear reason for refusing the development proposed and further considers that the adverse impacts do not significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole. Paragraph 11(d) of the Framework therefore indicates that planning permission should be granted.”
Paul Tucker QC led the case for the appellant and this is a statement on the decision published by Kings Chambers.
23 April – Wheatley Campus, College Close, Wheatley, Oxford
The Secretary of State allowed an appeal by Oxford Brookes University for outline planning permission for “demolition of all existing structures and redevelopment of the site with up to 500 dwellings and associated works including; engineering operations, including site clearance, remediation, remodelling and deposition of inert fill material arising from demolition on site; installation of new and modification of existing services and utilities; construction of foul and surface water drainage systems, including SuDS; creation of noise mitigation bund and fencing; creation of public open space, leisure, sport and recreation facilities including equipped play areas; ecological mitigation works; construction of a building for community/sport use and associated car parking; construction of internal estate roads, private drives and other highways infrastructure and construction of pedestrian footpaths”.
Again this is a green belt site. Whilst the Secretary of State agreed with the inspector that the appeal should be allowed, he differed as to his reasoning. I set out the Secretary of Statement’s application of the planning balance and overall conclusions as follows:
“For the reasons given above, the Secretary of State considers that the appeal scheme is in accordance with the following policies of the development plan: CS Policy CSEN2, LP Policy GB4. He has identified an overall benefit to heritage assets, so has found no conflict with heritage policies CSEN3, CON5 and CON11. He has found no conflict with CS Policy CSEN1 or LP Policies G2, C4 and C9 insofar as they seek to protect the district’s countryside and settlements from adverse development. While he has found conflict with policies CSS1 and CSH1 regarding the amount and spatial distribution of housing, he has found these policies to be out of date. He has therefore concluded that the appeal scheme is in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.
At IR13.118, the Inspector, having concluded that the proposed development would not conflict with the development plan, states that it should be approved without delay in accordance with paragraph 11c) of the Framework. The Secretary of State disagrees. Paragraph 11 c) of the Framework refers to “development proposals that accord with an up-to-date development plan”. As the Secretary of State has concluded that the policies which are most important for determining this appeal are out-of-date, he considers that paragraph 11 c) of the Framework does not apply.
Paragraph 11(d) of the Framework indicates that planning permission should be granted unless: (i) the application of policies in the Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.
The Secretary of State considers the harm to the Green Belt on that part of the site where development is considered inappropriate carries substantial weight.
The Secretary of State considers that the significant visual benefit to openness over a wide area of the South Oxfordshire Green Belt and the delivery of up to 500 houses, 173 of which would be affordable, are both considerations that carry very substantial weight.
The Secretary of State considers that the economic benefits of the scheme should be afforded significant weight.
The Secretary of State has considered the development in terms of its impact on heritage assets and on accessibility and considers that both offer benefits that should be afforded significant weight.
The net benefit to biodiversity that would be delivered by the scheme is a consideration of moderate weight, and the reinvestment of the proceeds arising from the sale of the land into the education sector should be afforded significant weight.
Given his findings in this letter, the Secretary of State considers that the proposal meets the emerging Neighbourhood Plan site-specific development principles in respect of Green Belt, affordable housing and accessibility, and public open space.
Having concluded at paragraph 39 of this letter that very special circumstances exist the Secretary of State considers that there are no policies in the Framework that protect areas or assets of particular importance that provide a clear reason for refusing the development proposed. He also concludes that any adverse impacts of granting permission do not significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.”
Chris Young QC led the case for the appellant and this is a statement on the decision published by No 5 Chambers.
Quite a month so far!
Two quick plugs:
⁃ If on Thursday you watched the first Planning In Brief web event hosted by Charlie Banner QC, Chris Young QC, Sasha White QC, Paul Tucker QC and Town’s Mary Cook you would have heard some discussion about the Seashell Trust decision. I wouldn’t be surprised to hear some coverage of the Oxford Brookes decision this coming week. Another reason to make the charity donation and tune in.
⁃ Do subscribe to Town Legal’s weekly, comprehensive, inquiry appeal decisions updates. Subscriptions to this and our other update services are still free.
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.
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