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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

NPPF Paras 49 & 14: So What Is The Supreme Court Really Saying?

The Supreme Court’s judgment in Suffolk Coastal District Council v Hopkins Homes and Richborough Estates v Cheshire East Borough Council, handed down on 10 May 2017, has been keenly anticipated but what does it mean for the development industry?
The issue

The issue at stake is subtle but crucial for promoters of residential development in areas that cannot show five years’ supply of deliverable housing sites. In such circumstances, paragraph 49 of the NPPF advises that “[r]elevant policies for the supply of housing should not be considered up-to-date” meaning that what is called the “tilted balance” in the second part of paragraph 14 applies: planning permission should be granted unless:

* “ any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

* specific policies in this Framework indicate development should be restricted”.

Footnote 9 of the NPPF gives examples of “specific policies”, such as green belt policies or policies relating to particular environmental designations.

There have been various attempts by the courts to resolve what the phrase “relevant policies for the supply of housing” actually means:

* Should it be given a narrow interpretation, limiting it to policies that deal with the quantum and distribution of new housing, or a wider interpretation, including policies whose effect is to restrict housing development in certain parts of the authority’s area, for example gaps between settlements or land subject to particular landscape designations?

* Once those “relevant policies” have been identified, are they to be given limited weight, or no weight?

The two cases

The Supreme Court (as did the Court of Appeal previously) had before it two separate cases raising these issues.

The Cheshire East case had first come before Lang J in the High Court. Richborough Estates had appealed against Cheshire East Borough Council’s non-determination of its planning application for 170 (later reduced to 146) homes between Willaston and Crewe. The inspector allowed the appeal. He concluded that the council was unable to demonstrate five years’ housing land supply and that policies in relation to “open countryside”, “green gap” and “housing in the open countryside” were relevant policies for the supply of housing to be given reduced weight by virtue of paragraph 49. Lang J quashed the decision, on the basis that the inspector had erred in treating the “green gap” policy as subject to paragraph 49.
The Suffolk Coastal case had first come before Supperstone J in the High Court. Suffolk Coastal District Council had refused planning permission for a development of 26 houses in Yoxford. The developer, Hopkins Homes, had appealed and the inspector dismissed the appeal. Notwithstanding a relatively up to date local plan, the inspector had found that it was “very unlikely that a five years’ supply of housing land could now be demonstrated”. He considered that none of the policies in the plan relating to the boundary of settlements, landscape, townscape, settlement hierarchy and the character of key and local service centres were “relevant policies for the supply of housing”. He also found that the proposal would have an unacceptable effect on historic parkland. Supperstone J ruled that the inspector had erred in thinking that paragraph 49 only applied to “policies dealing with the positive provision of housing” and also considered he had failed properly to assess the significance or otherwise of the historic parkland as a non-designated heritage asset.

The Court of Appeal

Both cases came before the Court of Appeal in January 2016 at a conjoined hearing. Lindblom LJ gave the judgment of the court on 17 March 2016 and found for the developers in both cases. He gave the phrase in paragraph 49 the “wider” interpretation, construing the words as meaning relevant policies “affecting the supply of housing”. He considered that it was then for the decision maker to determine the weight that should be applied to these policies, deemed out of date.

The Supreme Court

The Supreme Court only hears cases that raise points of law of general public importance and this was the first time that issues concerning the NPPF had come before it, Sullivan LJ having granted permission on 1 May 2016. The case was heard by five Supreme Court justices, Lord Carnwath, Lord Neuberger, Lord Clarke, Lord Hodge and Lord Gill, at a hearing on 22 and 23 February 2017. Lord Carnwath gave the lead judgment for all of the justices save for Lord Gill who gave a separate judgment.

Lord Carnwath and Lord Gill are the two justices most familiar with planning law south and north, respectively, of the border. Lord Gill indeed has been editor of the Scottish Planning Encyclopedia. This was his last case before retirement. His separate judgment provides a wider commentary on the proper role of the planning system in delivering sufficient housing, alongside that of Lord Carnwath, himself a former leading advocate at the planning bar. Carnwath, Gill, Sullivan, Lindblom: these are judges who understand our subject area and its particular complexities.
As set out by Lord Carnwath at the beginning of his judgment, the appeals provided the opportunity for the court “not only to consider the narrow issues of interpretation of para 49, but to look more broadly at issues concerning the legal status of the NPPF and its relationship with the statutory development plan.”
The following points may be of particular interest:

Legal status of the NPPF

There was some debate at the hearing as to the legal status of the (non-statutory) NPPF and as to the source of the Secretary of State’s power to issue national policy guidance as to the determination of applications and appeals, which could have led the court in an unanticipated direction. However’ despite the lack of any statutory basis (in relation to the determination of applications and appeals, as opposed to his role in relation to plan-making), the court pragmatically held that he did indeed have the power, which arose “expressly or by implication, from the planning Acts which give him overall responsibility for oversight of the planning system.” (Lord Carnwath, paragraph 19)

Interpretation of the NPPF

The court stressed that it is important not to overstate the scope of the Secretary of State’s policy-making role. The NPPF is no more than “guidance” and is no more than a “material consideration” for the purposes of section 70(2) of the 1990 Act: “It cannot, and does not purport to, displace the primacy given by the statute and policy to the statutory development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme”. (Lord Carnwath, paragraph 21)

The distinction between interpreting the meaning of words (a matter for the courts) and the application of guidance (exclusively a matter for the planning authority and inspectors) is stressed in Lord Gill’s separate judgment.

The interaction of law and policy

The Supreme Court had previously determined in Tesco Stores Limited v Dundee City Council (2012) that “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context”. This has led to concerns (expressed by counsel appearing in these proceedings) “about the over-legalisation of the planning process, as illustrated by the proliferation of case law on paragraph 49 itself…This is particularly unfortunate for what was intended as a simplification of national policy guidance, designed for the lay reader”. (Lord Carnwath, paragraph 23).

The court made it clear that “it is important that the role of the court is not overstated”. There was a specific development plan policy under consideration in Tesco and “some policies in the development plan may be expressed in much broader terms, and may not require, nor lend themselves to, the same level of legal analysis”. (Lord Carnwath, paragraph 24). “It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light…Furthermore, the courts should respect the expertise of the specialist planning inspectors and start at least from the presumption that they will have understood the policy framework correctly” and the courts have “cautioned against undue intervention” in policy judgments within specialist tribunals’ areas of competence. (Lord Carnwath, paragraph 25). Applicants for judicial review should “distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy.” (Lord Carnwath, paragraph 26).

The meaning of NPPF paragraph 14

The court drew the analogy with a policy for the supply of employment land which may become out of date because of the arrival of a major new source of employment in the area. Whether it is out of date, and what should be the consequence, are matters of planning judgement, including any effect on other related policies, for example for transport. Other competing policies may need to be given less weight, but “again that is a matter of pure planning judgement, not dependent on issues of legal interpretation”. (Lord Carnwath, paragraph 55). This should also be the approach in relation to housing policies deemed “out of date” under paragraph 49. “It also shows why it is not necessary to label other policies as “out of date” merely in order to determine the weight to be given to them under paragraph 14. As the Court of Appeal recognised, that will remain a matter of judgment for the decision-maker”. (Lord Carnwath, paragraph 56).

This is vital stuff! It changes what has been the orthodox approach to the paragraph 49/14 conundrum, rendering less important the analysis of which policies are “relevant policies” and bringing us back to a sensible balancing of the issues and allowing the need to secure an adequate supply of housing land to be taken into account in determining the weight to be applied to a policy, even for those policies not specifically caught by paragraph 49.

Lord Gill’s separate judgment stresses the importance that the NPPF places on boosting the supply of housing. “The message to planning authorities is unmistakeable”. (Lord Gill, paragraph 77). He refers to “the futility of authorities’ relying in development plans on the allocation of sites that have no realistic prospect of being developed within the five year period”. (paragraph 78).

In passing it should be noted that Lord Carnwath and Lord Gill both read into the footnote 9 examples of protective designations in the NPPF, references to the related development plan policies. Lord Gill notes that the “rigid enforcement of such policies may prevent a planning authority from meeting its requirement to provide a five-years supply” (paragraph 79).

The meaning of NPPF paragraph 49

The meaning of “relevant policies for the supply of housing” on this analysis becomes less important. The court preferred the “narrow” interpretation, namely “housing supply policies”. “However, this should not be seen as leading, as the lower courts seem to have thought, to the need for a legalistic exercise to decide whether individual policies do or do not come within that expression.” If there is a failure to provide for a five year housing land supply “it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the overly-restrictive nature of other non-housing policies.” (Lord Carnwath, paragraph 59). The shortfall is enough to trigger the “tilted balance”.

Lord Gill puts it like this: “If a planning authority that was in default of the requirement of a five-years supply were to continue to apply its environmental and amenity policies with full rigour, the objective of the Framework could be frustrated”. (paragraph 83).

Application of the principles to the cases

On this basis, the inspector was wrong to adopt a wider interpretation to the policies at issue in the Cheshire East case. However, “that did not detract materially from the force of his reasoning…He was clearly entitled to conclude that the weight to be given to the restrictive policies was reduced to the extent that they derived from “settlement boundaries that in turn reflect out-of-date housing requirements”. The permission was upheld.

On this basis, the inspector in the Suffolk Coastal case had embarked on an “inappropriate and unnecessary” exercise in distinguishing between policies which affected the supply of housing and those which did not. He should not have given the weight that he did to the settlement boundary policy given that it was “to an extent at least, no more than the counterpart of the housing policies.” The decision to dismiss the appeal was quashed and will need to be re-determined.

Concluding thoughts

This is the highest court in the land telling us to be less legalistic about the way we frame our arguments as to the application of national and local policies to development proposals. The exercise is not so much a close technical examination as to whether policies are “relevant policies” for the purposes of paragraph 49 but a weighing up of the consequences of a housing supply deficit against policies which are restricting that supply. In the Cheshire East case it is noteworthy that the court considered that it was right that the green gap policy was given less weight – not because it was a paragraph 49 policy (they found that it was not) but because it reflected out-of-date housing requirements.

We have all perhaps been guilty, spurred on particularly by the Supreme Court itself in Tesco v Dundee, of seeking too often to reduce matters of planning judgment to narrow points of legal interpretation. It is a habit we need to break.
The court stressed the expert role of inspectors. Of course not all decisions are taken by inspectors. Is the same latitude to be given to local planning authorities’ decisions, whether given on or against officers’ recommendations, or to those of the Secretary of State? The point is unaddressed, given that the only two situations before the court were decisions taken by inspectors.
If the advice of the court leads to fewer judicial reviews and statutory challenges, that is surely to be welcomed.
The previous Government has of course been consulting on potential revisions to the NPPF. I would suggest that the new Government reflects on the approach that it should take in the light of this judgment. The amendments that the Government had proposed to paragraph 14 may not give rise to undue concern but shouldn’t more thought be given to whether it is right or not further to complicate paragraph 49 with reference to a three years’ supply safety net where a neighbourhood plan is in place containing defined housing policies, as proposed in the December 2016 written ministerial statement? Isn’t this precisely the over-prescriptive approach being deprecated by the court – and one driven perhaps by a concern that communities were seeing local designations in some way “switched off” or automatically being given less weight through being treated as “relevant policies”? This should no longer be feared. Instead, a sensible balancing exercise will need to be undertaken.
Lastly, the relationship, in the statutory presumption, as between the adopted development plan and other material considerations, has been sought by some judges to be rigidly applied, in a way which does not sit well with this ruling. I am thinking particularly of Green J’s judgment in East Staffordshire Borough Council v Secretary of State and Barwood Strategic Land (22 November 2016) an appeal against which is due to be heard by the Court of Appeal (probably again with Lindblom LJ as the lead judge) on 25 May 2017. It will be fascinating to see this early application of the Supreme Court’s thinking.
Simon Ricketts 10.5.17
Personal views, et cetera

(Town Legal LLP acted for Richborough Estates in this case. Special personal thanks from me to Christopher Young and James Corbet Burcher, both of No 5 Chambers, and to my colleague Ricardo Gama).

Make No Little Plans: The London Plan

“Make no little plans; they have no magic to stir men’s blood and probably themselves will not be realized. Make big plans; aim high in hope and work, remembering that a noble, logical diagram once recorded will never die, but long after we are gone be a living thing, asserting itself with ever-growing insistency” (Daniel Burnham)
The current version of the London Plan is no little plan, but fails the “magic to stir blood” and “noble, logical diagram” tests. It runs to over 400 pages, which is surely ridiculous – particularly since it is legally constrained only to deal with “matters which are of strategic importance to Greater London”. (Whilst no replacement for a formal document, New London Architecture’s 2015 summary of the document in a four minute video fronted by Peter Murray shows how the key messages can be got across in a more accessible and rousing style).

We are expecting initial non-statutory public consultation this autumn into a review of the current plan, so as to reflect the policy priorities of our third London Mayor, Sadiq Khan. Following this initial process, there would then need to be two formal consultation stages (the first with the London Assembly and GLA bodies, the second with the public) before an examination in public into the submitted document, which the Mayor projects for summer 2018, and perhaps adoption (his fingers still crossed) in autumn 2019. So even on a best case the Mayor will not have an adopted plan until over three quarters of his way through his four year term of office.
His predecessors had the same problem. It took Ken Livingstone four years from election in 2000 to have in place the first London Plan (which ran to an even more thudding 420 pages) and it took Boris Johnson three years from election in 2008 to have in place his 2011 Replacement London Plan, which, subject to three sets of alterations, remains the current plan, supplemented by no fewer than adopted 21 SPGs with two further SPGs currently in draft (Culture and Night Time Economy (April 2017); Affordable Housing & Viability (November 2016)). The extent of reliance on SPGs is no doubt partly down to the exclusion of non-strategic matters from the plan itself (although the SPGs cover a whole range of strategic matters) but as much as anything is probably down to pragmatism, given the slowness of the statutory process.
Strange and dysfunctional system isn’t it? Particularly when one recalls that the inspector, Anthony Thickett, concluded his report dated 18 November 2014 into the Further Alterations to the London Plan as follows:
“57. The evidence before me strongly suggests that the existing London Plan strategy will not deliver sufficient homes to meet objectively assessed need. The Mayor has committed to a review of the London Plan in 2016 but I do not consider that London can afford to wait until then and recommend that a review commences as soon as the FALP is adopted in 2015 (IRC3). In my view, the Mayor needs to explore options beyond the existing philosophy of the London Plan. That may, in the absence of a wider regional strategy to assess the options for growth and to plan and co-ordinate that growth, include engaging local planning authorities beyond the GLA’s boundaries in discussions regarding the evolution of our capital city. “
There are urgent and important issues to be grappled with, with implications far beyond London postcodes. Why do we put up with such slow processes?
The London Plan, or “spatial development strategy” to give it its statutory title, is a strange and unwieldy beast and, as we await consultation on its new incarnation, let’s remind ourselves of some of the curiosities arising from its statutory basis in sections 334 to 341 of the Greater London Authority Act 1999 and the Town and Country Planning (London Spatial Development Strategy) Regulations 2000.
The legal structure for the plan arrived at in the 1999 Act was at the time largely novel. The plan superseded the then Government’s non-statutory regional planning guidance (specifically, RPG3, the then regional planning guidance for London) and the procedure set out for the adoption of this new strategic regional plan echoed in part the examination-in-public process for structure plans of the time. (My recollection from then was that the emphasis on “strategic” was to mark a contrast from the over-prescriptive and slow plan-making of the previous Greater London Council – nice try!).
When the development plans system (over-engineered in the extreme) was created by virtue of the Planning and Compulsory Purchase Act 2004 (which also introduced statutory regional spatial strategies for the rest of England), although the London Plan was not a “development plan document”, it was part of the statutory development plan alongside the boroughs’ development plan documents (ie core strategies etc). Under section 38(6) of the 2004 Act, planning applications therefore must be determined “in accordance with the plan unless material considerations indicate otherwise”.
Increased powers were devolved to the Mayor, including, by way of the Mayor of London Order 2008, the ability to direct that he should be the local planning authority on a planning application of potential strategic importance and determine it himself. The plan’s policies are central to the call-in criteria in Article 7(1) of the Order, all of three of which must be met in order for the Mayor to be able to intervene:
“(a) the development or any of the issues raised by the development to which the PSI application relates is of such a nature or scale that it would have a significant impact on the implementation of the spatial development strategy;

(b) the development or any of the issues raised by the development to which the application relates has significant effects that are likely to affect more than one London Borough; and  

(c) there are sound planning reasons for issuing a direction”

The application of the criteria was tested in R (Spitalfields Historic Trust) v Mayor of London (Gilbart J, 10 May 2016).

By way of the Localism Act 2011 the regional spatial strategies were abolished but the London Plan remained. The extent to which the London Plan was a development plan for the purposes of the new “duty to cooperate” that the 2011 Act introduced (by way of inserting a new section 33A into the 2004 Act) was left unclear. The plan also now sat not just above the boroughs’ individual local plans but also above potentially a tier of neighbourhood plans below those plans.
When the Government’s National Planning Policy Framework (haiku-like little plan, in contrast to the swathes of guidance it replaced) was published in March 2012, it cancelled the guidance there had been in Circular 1/2008 as to the contents of the London Plan. There is now very little direct guidance for the Mayor in the NPPF or indeed in subsequent Planning Practice Guidance.
These are some of the key legal elements of the London Plan process:
What it must contain
The plan’s functions are unique:
As well as the Mayor’s “general policies in respect of the development and use of land in Greater London” (section 334(3)), it must deal with any “general spatial development aspects” of the other strategies, policies and proposals that he is responsible for, whether or not they relate to the development or use of land (section 334(4)). These other strategies include transport, bio-diversity, waste, air quality, noise and culture.
The plan “must deal only with matters which are of strategic importance to Greater London” (section 334(5)). The meaning of “strategic” was tested in R (Mayor of London) v First Secretary of State (Forbes J, 7 April 2008). The then Mayor had directed that Brent Council should refuse planning permission for a student housing scheme on design grounds. The developer appealed against the refusal and in allowing the appeal the Secretary of State awarded costs against the Mayor on the basis that he should not have intervened on grounds that were not of strategic importance. The Mayor challenged the award of costs but the court held that the Secretary of State had been entitled to reach that conclusion.
Co-operation
There has been legal argument as to the extent to which the formal “duty to co-operate” (for what it’s worth) is engaged in relation to the London Plan. This occupied time at the examination of the 2012 examination of “revised early minor alterations” to the plan and the 2014 examination of further alterations.
Inspector Geoff Salter in his report dated 19 June 2012 concluded that the duty did not formally apply:
“Section 110 of the Localism Act introduced a new section (33A) of the Planning and Compulsory Purchase Act 2004 which imposes a duty on local planning authorities and other prescribed bodies to co-operate in a range of planning activities. The Mayor is a prescribed person for the purposes of the duty but the London Plan is in effect a regional strategy (RS), the preparation of which does not fall within the list of activities covered by the duty, such as preparation of Development Plan Documents (DPDs). Activities that can reasonably be described as preparing the way for activities such as DPD preparation fall within the duty. However, I do not agree with the South East Waste Planning Advisory Group and the East of England Waste Technical Advisory Body that the LP can be considered to meet this definition, since its production is an activity in its own right“.
Whereas Inspector Anthony Thickett in his report dated 18 November 2014 appears to reach the opposite conclusion:
“Section 33A(3) lists the activities to which the duty applies. The first activity is the preparation of development plan documents. The London Plan is part of the development plan for London but the Mayor points to Section 38(2) of the 2004 Act which defines the FALP as a spatial development strategy and not a development plan document. Section 33A(3)(d & e) apply the duty to any activities that can reasonably be considered to prepare the way for or support the preparation of development plan documents. The preparation of the FALP is an activity in its own right but it must, in my view, also prepare the way for and support the preparation of development plan documents.”
By the time of the most recent examination, into further minor alterations to housing and parking standards, inspector David Hogger’s report dated 15 December 2015 simply accepts the Mayor’s position that the duty does not formally apply, as set out in a procedural note submitted to him which contains the following passage:
“Although the duty applies to the Mayor in respect of other authorities’ plans, it is the Mayor’s view (upheld by Leading Counsel) that section 33A does not apply specifically to the activity of preparing or amending the London Plan. However, London Plan Policy 2.2 makes clear that the Mayor is strongly committed to working with authorities and agencies in the East and South East of England to secure sustainable development and the management of growth in the wider metropolitan area and to co-ordinate approaches to other strategic issues of common concern.” (paragraph 3.6)
The point may be a sterile one in part given that all three Inspectors found that in practice there had been sufficient co-operation in any event, in the context of specific duties in the 1999 Act for the Mayor to:

* consult on any alteration to or replacement of the spatial development strategy (the London Plan) with counties and districts adjoining London (section 335), and
* inform local planning authorities in the vicinity of London of his views concerning any matters of common interest relating to the planning or development of London or those areas (sections 339 and 348).

However, it is a point that needs urgently tidying up to avoid legal uncertainty in the context of the forthcoming plan.

The previous Mayor established the Outer London Commission to consider how parts of outer London might better realise their economic potential. Given as well Anthony Thickett’s urging in his report of the need for a new approach given the pressures for housing, inter-relationships with surrounding areas outside London’s formal boundaries cannot be ignored. The Outer London Commission’s March 2016 report, Coordinating Strategic Policy And Infrastructure Investment Across The Wider South East, touches on the taboo subject of green belt review:

“3.24 […] a strategic review [of green belt boundaries] in London may raise legal issues. The NPPF is very clear that Green Belt reviews should be a local planning authority matter and the two London’s Mayors have so far accepted this. However, S30 of the GLA Act enables the Mayor to take action to further one or more of the authority’s principal purposes. Moreover, the London Plan is legally part of the Development Plan for any area of London and, more practically, the NPPF is clearly written with single tier planning authorities in mind. A case might well be constructed to justify Mayoral/strategic involvement in a review (he already addresses other issues to which the NPPF attributes responsibility to the local planning authority). A formal legal opinion on the admissibility of the Mayor leading a strategic review might inform this.”
No doubt, the new plan will duck the issue, but should it?
Relationship with the boroughs
Section 24(1)(b) of the Planning and Compulsory Purchase Act 2004 requires borough plans to be in general conformity with the London Plan.
The content of the plan is clearly of critical importance to the boroughs and the sensitivity is heightened given that the Mayor does not have to accept an inspector’s recommendations. Differing political priorities between the Mayor and boroughs can lead to tensions, as we saw in relation to the affordable rented housing policies in “revised early minor modifications” introduced by Boris Johnson. Nine boroughs challenged the policy which had been adopted in the face of recommendations from inspector Geoff Salter in his report dated 19 June 2012. They argued that the policy would unlawfully preclude them from imposing borough-wide caps on rent for affordable rented housing at lower than a London-wide default level of 80% of market value.
The dispute reached the High Court in London Borough of Islington (& 8 other London boroughs) v Mayor of London (Lang J, 25 March 2014). The court dismissed the challenge:
“28. In my view, the Claimants have failed to establish that the Defendant’s strategy is contrary to the NPPF. The NPPF is a national policy framed in terms of broad policy objectives. Detailed decisions on how those objectives can be best achieved have to be made at a regional and local level. The only reference to rent caps for affordable rented housing is in the definition of affordable rented housing, which provides that the rent must be “no more than 80% of the local market rent”. Paragraph 47 of the NPPF does not speak either for or against local rent caps. Nor does it prevent the Defendant from adopting a London-wide policy against rent caps with which local boroughs must comply. There are other ways in which the Claimants can and should “use their evidence base” to ensure their local plans meet “objectively assessed needs” for affordable housing…”
The future
So, a plan is to be adopted in 2019 with a two year preparation process, within which period the environmental and other implications of emerging policies will need to be thoroughly tested. How will it point London forward in a certain and confident way given the various current uncertainties over such issues as Brexit (given the particularly internationally-facing role that Greater London plays, a clear priority for Khan will be to avoid a hard Glexit, regardless of the consistency of any Brexit); Heathrow; Crossrail 2; the Bakerloo Line extension and other infrastructure proposals, and whatever emerges as the (new) Government’s air quality plan? But perhaps above all of these uncertainties remains the continued desperate need for increased housing, with affordability a key component.

What a challenging prospect the Mayor and his team have ahead of them in appropriately directing boroughs and developers with clarity and precision, retaining the good, snipping out the unnecessary or counter-productive. Let’s hope that, in every respect save its length, this turns out to be no little plan.
Simon Ricketts 23.4.17
Personal views, et cetera

The Unfortunate Case Of The Council’s Sports Hub

It’s easy for a planning lawyer to summarise R (Boot) v Elmbridge Borough Council (Supperstone J, 16 January 2017). The High Court confirmed what we already know from paragraph 89 of the NPPF – that “the provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it” is not inappropriate development, but that conversely, if harm is caused to the openness of the Green Belt, even limited harm, the development is inappropriate and permission should be refused save in very special circumstances.
The court duly quashed a planning permission granted on 26 January 2016 for the “Elmbridge Sports Hub” – a proposed athletics stadium, ‘league’ football pitch and training pitches (grass and artificial) for Walton Casuals FC, Walton and Hersham FC and Walton Athletics club to replace their current facilities, on a former landfill site in Waterside Drive, Walton-on-Thames.

However, scratch beneath the surface of any case and there are usually some interesting factors.

This is not a developer-led proposal. It’s being promoted by Elmbridge Borough Council, on land that it owns. The development is proposed to be funded by the sale by the Council, for the development of 52 homes, of Walton and Hersham FC’s present ground at Stompond Lane.
Most developers would not take the risk of starting construction work ahead of their permission being free from legal challenge. However, Elmbridge embarked on construction on 21 March 2016, despite the scheme already at that stage having become significantly controversial. Indeed the claimant’s solicitors, renowned claimant firm Richard Buxton & Co, were already on board for objectors and had previously scored an early blow by securing an EIA screening direction from the Secretary of State in July 2015, when the application had already initially gone to committee, requiring environmental impact assessment to be carried out. The Secretary of State ruled:
“Whilst this is a finely balanced case, the proposal does raise concerns to suggest the potential for significant environmental impacts through surface disturbance of the former landfill site, uncertainty about the extent of the contamination of the site and the potential for gas migration to both the River Thames and nearby residential properties.”
Why did development start when the permission was still at risk, presumably when proceedings had already been served, or at least a pre-action protocol letter? I don’t know any of the details but I do note that the local elections took place a little afterwards in May 2016. Was this at all relevant?
Rolling ahead to 2017, by the time that the permission was quashed, the construction project was significantly advanced. With the developer a local planning authority, responsible for planning enforcement, this is surely hardly a comfortable position.

Image from Get Surrey website

Elmbridge had tried unsuccessfully to delay the court hearing, fixed for 6 December 2016, to allow a second planning application to be determined, for a revised version of the scheme, a request that was rejected by Ouseley J in November.
The second application eventually went to committee on 17 January 2017, the day after the first permission was quashed and on the basis of a detailed officers’ report, resolved to approve it (perhaps no surprise there). Having delayed the scheme first on an EIA point and secondly on the council’s flawed approach to green belt policy, no doubt objectors will be looking for their next line of attack.
So a straight-forward ruling by Supperstone J but the situation on the ground is plainly a mess. How does a local planning authority get itself into this sort of position? To what extent is this about financial or political imperatives and, against the backdrop of a construction project in mid flow (one dreads to think of the financial consequences under its construction contract if the authority now pauses or abandons the project), how easy was it for members to determine the second application with open minds but on the contrary how difficult it may be for objectors to prove to a court that minds were already made up?
Simon Ricketts 21 January 2017
Personal views, et cetera

Trees In Court: A Festive Special

Trees stir emotions. Dwarfing us in their scale and their natural lifespan, they are integral to, define and inspire our built and natural landscapes. Their leaves connect us with the changing seasons. But they can be inconveniences: their roots, their debris, sometimes even their very presence.

The £1m lime tree
Who would spend £1m litigating over problems alleged to arise from a single lime tree in a suburban London Street? This is a recent piece from The Lawyer. HHJ Edward Bailey’s 29 July 2016 county court judgment refusing the owner of the tree (a subsidiary of Grainger Trust plc) access over the neighbouring lawyer’s property (because the answer is of course a lawyer) under section 1 of the Access to Neighbouring Land Act 1992, to prune it, runs to 27 pages. All of the papers relating to the litigation, including transcripts and evidence, are at www.disputewithgrainger.com, a website created for the purpose by the neighbour. A £100,000 interim payment on account of his costs was due to be paid by Grainger yesterday.
Sets the bar pretty high for future neighbour disputes it must be said.
Trees & PFI
Where does the line of least resistance lie where a local authority’s PFI contractor faces increased highways maintenance costs due to the presence of trees?
Sheffield City Council, abetted by its contractor Amey, has been engaging in a systematic programme of tree felling and replacement along its highways.

A somewhat speculative challenge was brought to the process by local residents in R (Dillner) v Sheffield City Council (Gilbart J, 27 April 2016), following an interim injunction that was granted at short notice.

Gilbart J is in lyrical form, starting his judgment with the following background:

“Sheffield is one of the great cities of Northern England. Parts of it lie within the Peak District, which abuts its western aspect. It lies where several rivers and streams (the Rivers Don, Sheaf, Loxley, Rivelin, and Porter, Meers and Owler Brooks) flow eastwards off the Pennines. Many of its roads and streets (and especially in the suburbs running westwards and south-westwards from the City Centre) have trees planted along them, in the verges or other land within the highway. Like many of the great cities of the north of England, it suffered during the deindustrialisation of the late 20th Century and the financial stringency endured by local authorities over the last 30 years or more. The upkeep of its roads and streets were not immune to the testing climate that created for local authorities, and a backlog of maintenance developed.

It is in the nature of highway trees which are well established that they are intrinsically attractive (save in unusual cases), but also that, if allowed to grow unchecked, they cause problems to the proper maintenance of the roads, verges and pavements in which they sit or which they abut. Thus, the loss of a tree may be seen as regrettable in visual terms, but it may be required if the highway is to be kept in repair. The background to this case concerns the way in which Sheffield City Council (“SCC”) has sought to deal with the backlog of repairs, and in particular of how it has dealt with the presence of trees on its roads and streets”.

The grounds of challenge followed familiar territory: inadequate consultation; the need for environmental impact assessment, and engagement of the decision maker’s duty to pay special attention to the desirability of preserving and enhancing the character of conservation areas.

The grounds were rejected:

– “provided the felling or lopping of the tree is carried out in pursuance of [a highways authority’s duty to maintain (and thus repair) [the highway], there is no requirement for consent to fell the tree “.

– “while there is a requirement in those domestic Regulations which apply the EU Directives for environmental assessment in the case of trees, it only applies to projects of deforestation on sites of at least 1 hectare in size (0.5 ha in a National Park); see Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999 Schedule 2 paragraph 2. This project cannot be called deforestation”

– It “follows from the above that:

(a) the execution of works in the highway to repair it does not constitute development and therefore requires no planning permission;  

(b) the removal or lopping of trees requires no planning permission in any event;  

(c) the removal or lopping of highway trees in a Conservation Area requires no consent under s 211 TCPA 1990 if carried out in pursuance of the duty of the highway authority to maintain the highway, keep it in repair, and free of sources of danger or causes of obstruction;  

(d) there is therefore no question of a development consent being required for the works;  

(e) no planning function arises relevant to s 72 LBCAA 1990;  

(f) at most, the fact that a tree could contribute to the appearance and character of a Conservation Area could be a material consideration. There is no evidence at all that Amey and SCC failed to take it into account. ”

Gilbart J’s closing comments:

“I repeat that nothing in this Judgment is to be read as criticising the residents of Sheffield for seeking to protect the trees in their streets and roads, whose presence many of them appreciate so much. But as with many matters, such an understandable and natural desire must be tempered by acceptance of the important duties cast on the highway authority to maintain those roads and streets in good repair. It is unfortunate in the extreme that those advising the Claimant and others who object have failed to address both sides of the argument, and even more so that the claim was advanced, and the injunction sought, without any proper analysis on their behalf of the statutory and legal context. It may be that those who will be disappointed by the terms of this Judgment will want to see a different legislative regime in place. That is a matter for Parliament, and not for this Court.”
So will Parliament now conduct a root and branch review?
Andrew Lainton’s February 2016 blog post, written when the interim injunction was granted, is, as always, worth reading.
Sycamore vs the tree of heaven
In determining in the Sheffield case that the decision by an authority to fell a tree does not engage the conservation area special duty in section 72(1) of the Listed Buildings and Conservation Areas Act 1990, Gilbart J had cited R (McClennan) v London Borough of Lambeth (HH Judge Sycamore, 16 June 2014), which concerned Lambeth’s proposals to fell a tree of heaven at the rear of the grade II listed Durning Library building in Kennington Lane, within Kennington conservation area – with the objective, said Lambeth, of preventing structural damage to the listed building. Whilst section 72(1) wasn’t engaged, the judge held that Lambeth’s cabinet had failed to take into account a material consideration, namely that the tree was situated in the conservation area. The decision was quashed. Lambeth subsequently carried out public consultation but I think I know where the tree has gone.

Forest Hill Park, Labour In Vain Road
is the address in Wrotham, Kent of a caravan site which has been the subject of a TPO saga. Following the felling of various protected trees, enforcement proceedings were brought and court action was settled on the basis of an undertaking given by the defendants to cease the felling. The felling resumed, the council started proceedings for contempt of court and the defendants applied to release the undertaking, on the basis that they could fell the trees in reliance on a 1983 planning permission for “development … and continuation of use of land as caravan site”. The question that came to the Court of Appeal in Barney-Smith v Tonbridge and Malling Borough Council (Court of Appeal, 9 December 2016) was whether the exemption from the need for consent, where felling was “immediately required for the purpose of carrying out development authorised by” a planning permission, was satisfied. The court, not unsurprisingly, held that the answer was no – even though the planning permission could have been implemented in such a way as would have necessitated the tree felling, it could be implemented in a manner which left the trees untouched and therefore the exemption did not apply.
The Hampstead Heath dam

R (Heath & Hampstead Society) v City of London (Lang J, 28 November 2014) concerned the Hampstead Heath dam project, the decision by the City of London to approve and proceed with proposals for reservoir safety works to the ponds on Hampstead Heath. The claimant regarded the proposed works which would entail the loss of over 80 trees, as “damaging, unnecessary and over-engineered”. But Lang J held that the only legal consideration under the Reservoirs Act 1975 is public safety and that the works would not be in breach of the restrictions in the Hampstead Heath Act 1871 which requires that the City of London shall forever keep the Heath “unbuilt on” as they would fall within exceptions for drainage and improvement.

Festive Litigation
Whatever your religion or non religion, enjoy the break (if I don’t blog again in the meantime). In the US, the constitutional status of the Christmas tree reached the US Supreme Court in Court County of Allegheny v. American Civil Liberties Union (3 July 1989). The combined display outside local authority offices of a Christmas tree, Menorah and sign saluting liberty was sufficiently secular so as not to offend the establishment clause in the First Amendment of the constitution, as opposed to a nativity scene inside a court building, which was held to be unlawful. What would the Daily Mail have to say about any UK Supreme Court justices who made such a ruling one wonders? I gather that since then the US Supreme Court has remained decidedly unfestive – according to one US commentator it has since declined to intervene in cases concerning: a Menorah and Christmas nativity scene combined with Frosty the Snowman and Santa Claus; an attempt to have Christmas decertified as a federal holiday, and efforts to allow Christmas music to be played over the intercom at public schools.

What’s a lawyer to do? The High Court rises on 21 December and the new term starts on 11 January. Oh well, put another log on the fire.
Simon Ricketts 17.12.16
Personal views, et cetera

First World Problems: Basements

Does anyone actually need to excavate a basement? Despite, or because of, the cheek by jowl impacts on neighbours arising from the construction process and/or concerns as to structural implications, basement excavation does have one benefit – of regularly testing various areas of planning law.
Permitted development rights
We have yet to see whether Team Javid/Barwell have the same enthusiasm for permitted development rights as Team Pickles/Lewis, with their three tier approach to development management: permitted development rights without the need for prior approval; permitted development rights with the need for prior approval where specific issues arise, and planning permission “for the largest scale development” (budget, 2014).
Basement development exposes the difficulties with the permitted development process. Indeed the case of Eatherley v London Borough of Camden (Cranston J, 2 December 2016) has blown a huge hole in the concept of permitted development rights as its conclusions could be applied to all but the most minor forms of development. It will surely have implications for the Government’s more ambitious, but currently stalled permitted development proposals summarised in my 15.6.16 blog post .
As summarised by Cranston J, the central issue was “a question about the extent to which subterranean development can be carried out relying on the current regime of permitted development rights. The question is of general interest but arises particularly frequently in central London because of economic and social factors, in general terms, the increasing pressure for space. It is a matter of controversy in the planning world and there is a split between local planning authorities as to the correct answer”.
Class A, Part 1, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 grants deemed permission for the “enlargement, improvement or other alteration of a dwellinghouse” subject to defined limitations.
The judge held that the proposals involved excavation works which, as a matter of fact and degree, constituted “an engineering operation” which did not benefit from any permitted development right:
“In my judgment the planning committee asked itself the wrong question with its focus on the works being “entirely part” of the overall development, which would “by necessity” involve engineering works. It concluded that because this was the case it followed that the works did not constitute a separate activity of substance. That is not the approach laid down in the authorities. The Council’s conclusion that the engineering works were not a separate activity of substance followed from a misdirection. It should not have asked itself whether the engineering works were part and parcel of making a basement but whether they constituted a separate activity of substance. The Council needed to address the nature of the excavation and removal of the ground and soil, and the works of structural support to create the space for the basement.”
So now, objectors to projects that are being pursued in reliance upon permitted development rights will be alert to elements of the works that can be said to be engineering works that would require a separate planning permission.
The judgment is topical – in November 2016, DCLG published Basement Developments and the Planning System – Call for Evidence which “seeks evidence on the number of basement developments being taken forward: how these developments are currently dealt with through the planning system; and whether any adverse impacts of such developments could be further mitigated through the planning process. This review is not considering whether or not basement development should be permitted, but rather how the planning process manages the impacts of that development where it is permitted. ” The deadline for consultation responses is 16 December 2016.
Other uncertainties of the (similarly worded) equivalent part of the predecessor Order were considered in Royal Borough of Kensington and Chelsea v Secretary of State (Patterson J, 17 June 2015):
– whether the limitation in the Order if “the enlarged part of the dwelling house would have more than one storey” is referring to the dwelling house as enlarged by development, i.e. includes the original dwelling house, or whether it is referring to that part of the dwelling house permission for which is given by Class A of the GPDO. The judge held that it was the latter, simply excluding anything more than a single level basement.
– whether the limitation in the Order if “the enlarged part of the dwelling house would be within 7 metres of any boundary of the curtilage of the dwelling house opposite the rear wall of the dwelling house” is referring to the dwelling house being developed, i.e. the application dwelling house, or to another dwelling house opposite the dwelling house being developed”. The judge held that it was the former.

Article 4 directions
One clear flaw in the Government’s reliance on permitted development rights is the relative ease with which LPAs can disapply the process through Article 4 directions (without giving rise to any rights to compensation if the direction is expressed to come into force at least a year after it is made). In relation to both of the cases referred to above the relevant LPAs have now put directions in place.
On 3 October 2016 the London Borough of Camden confirmed a direction made under Article 4(1) of the GPDO, covering the whole of the borough. From 1 June 2017 planning permission will be required for basements. The direction covers:  “The enlargement, improvement or other alteration of a dwellinghouse by carrying out below the dwellinghouse or its curtilage of basement or lightwell development integral to and associated with basement development, being development comprised within Class A, Part 1 of Schedule 2 to the Order and not being development comprised within any other Class.”

The Royal Borough of Kensington and Chelsea made an Article 4 direction on 19 March 2015 which came into force a year later.
Restrictive policies
To the extent that planning permission is required, where the proposed works fall outside the scope of permitted development rights, LPAs have been tightening their policies so as to be able to take a more restrictive approach.
Lisle-Mainwaring v Royal Borough of Kensington and Chelsea (Lang J, 24 July 2015) was an application (supported by a basement excavation contractor!) to quash RBKC’s adoption of a revision to its development plan so as to include a basements planning policy , claiming that the council and the plan inspector “failed to take account of a material consideration, namely the permitted development rights for basement development, and the risk of greater reliance on them if the BPP were adopted, without the benefit of any planning control over construction noise and loss of amenity”, failed to consider “reasonable alternatives” to the policy under the SEA Directive and failed to consult adequately on the new policy. (Ms Lisle-Mainwaring also of course painted her house in candy-cane stripes as part of a bizarre protest against opposition to her proposed three storey basement, thereby creating even more work for the planning bar).
The 2015 basements policy prevented double basements in most circumstances and restricted the construction of basements under the garden to no more than 50% of the garden area (previously 85%). RBKC has since adopted, on 14 April 2016, a more detailed basements SPD as well as a code of practice on noise, vibration and dust
(Of course, policies should not be applied regardless of specific circumstances. By a decision letter dated 18 September 2015 an appeal was allowed for a double basement as part of the redevelopment of the former Kensington Tavern site, albeit partly on the basis of a fallback position by virtue of existing planning permissions).
First world problems
Celebrity super basements are of course a particular headache for RBKC.
Brian May continues to lobby and litigate against, we have had Jimmy Page reportedly objecting to a super basement proposal by Robbie Williams, and of course the saga of Foxtons founder’s plans for “new subterranean space for leisure facilities to include a swimming pool and conversion of the existing undercroft into a car museum” at his home in Kensington Palace Gardens, opposed by, amongst others, the French and Japanese embassies and Indian High Commission.
The dispute as to whether planning permission and listed building consent for the works had been validly implemented and whether lawful development certificates had been lawfully issued came to court in Government of the Republic of France v Royal Borough of Kensington and Chelsea (Holgate J, 27 November 2015), with the court finding for Hunt. I believe that the case is now heading to the Court of Appeal.
It all makes for interesting press of course – and certainly interesting law – but would most of us would choose to spend our money three storeys down were we to win life’s lottery?
Simon Ricketts 5.12.16
Personal views, et cetera

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