Dennis

There was an interesting Hillside after-tremor this week by way of R (Dennis) v London Borough of Southwark (Holgate J, 17 January 2024) which may prove useful in giving more practical guidance as to the approach to drop-in applications in the context of modern multi-phase masterplan-style permissions.

(For a quick refresher on the Hillside judgment itself, see my 2 November 2022 blog post Running Down That Hillside)

In Dennis an objector challenged the decision by Southwark Council to grant a section 96A (non-material amendments) approval the effect of which was intended to make an outline planning permission for the phased redevelopment and regeneration of the Aylesbury Estate in south east London “severable” (within the meaning of the Hillside judgment) by the insertion of that word into the description of development authorised by the outline planning permission. The claimant contended that the amendment was “material” and therefore outside the scope of section 96A. Southwark Council and the developer, Notting Hill Genesis, submitted that the outline planning permission should be interpreted as “severable” in any event and that the amendment sought was just by way of caution. The amendment was made so as to pave the way for implementation of a drop-in permission for development within one of the phases, which would be inconsistent with what the outline planning permission had authorised. The drop-in application had been resolved to be approved subject to grant of the section 96A application.

There are already a few particular aspects as to the facts which need to be borne in mind before applying the judgment more broadly:

  • The approach to seeking to make a particular phase “severable”, in Hillside terms, from the rest of the permission was simply by way of introducing the word “severable” into the description of development!
  • The parties disagreed as to whether the permission was already to be construed as severable but agreed for the purposes of the litigation that if it was not already severable the amendment would be material and therefore fell outside of section 96A. The judge did not reach a ruling that changes to accommodate drop-in applications are necessarily material and of course that will be a matter for the planning judgment of the decision-maker in every case.
  • The amendment was by way of securing “severability” rather than adjusting the permission so that building it out would not be materially incompatible with what was to come forward by way of a drop-in application.

This is to be contrasted by many Hillside strategies that we see, where alongside submission of the drop-in application care is taken to amend the existing permission to the extent necessary to achieve material physical compatibility – often by way of section 96A because the local planning authority in its planning judgment determines those amendments not to be material. This after all makes sense and, whilst I might have some sympathy for objectors where the strategy is taken that was taken in Dennis, where there would be no control over what might come forward on the severed part of the permission, I don’t have any sympathy where it is perfectly clear what the changes are, by virtue of the drop-in application having been made, accompanied by full assessments of the acceptability of the proposal in the context of the wider consented development and where this is all reported to committee so that everyone is clear and has a full opportunity to make representations to the same extent as if the whole development had been the subject of a fresh application (the Supreme Court’s impractical suggestion in Hillside).

So what did we learn from Dennis, aside from the extent to which Hillside issues remain a menace for all concerned, and aside from being reminded, again, that the Government really should have grasped the nettle and legislated to address the problem in the way that many of us urged (we even provided draft clauses!) rather than sticking with introducing via LURA the very weak section 73B procedural option into the 1990 Act?

  • Hillside applies as much to outline planning permissions as to full permissions.
  • Care is needed as to the word “severable” used by the Supreme Court in Hillside. Simply inserting the bare term “severable” into a permission does not make it severable.
  • Phasing alone does not connote severability. Indeed, “if the inclusion of phasing provisions were to be sufficient to sever a planning permission, whether detailed or outline, that could have consequences which nobody involved in seeking or granting that permission would have envisaged, such as the application of the statutory time limits for the implementation of each separate permission. For example, if the outline permission in Percy Bilton had been treated by the court as severed, the statutory time limits for submitting reserved matters for approval would have applied to each of the resulting discrete permissions and so some of those consents would have become time-expired. That was the issue in the case. Practitioners will therefore need to consider carefully the possible consequences of seeking to argue that a single planning permission should be treated as severed.”

A final point to note is that this case arose not from a challenge to the approval of the drop-in application (quite right, see my 15 December 2023 blog post Permission Incompatibility Not Relevant For The Decision Maker – Court of Appeal In Fiske). The case arose from the attempt of the developer to ensure, by way of the section 96A application, that implementation of that drop-in permission would not lead to a risk that the existing planning permission could no longer be relied on. I would comment that it is of course open to the developer to seek again to amend the permission such that the proposals can proceed.

I noted the statement in Planning Resource from the Public Interest Law Centre, which represented Dennis:

“This is an important judgement for housing campaigners across the country, as large estate redevelopments often unfold from outline planning permissions over time – or ‘phased’ like this. This case scrutinises the method in which developers use ‘drop in’ applications to deviate from what was promised to residents.”

My response would be: What really has been achieved by the challenge? What further assessments will be needed and further opportunity for views to be expressed, as a result of this outcome, that could not have been made in the context of the drop-in application? I’m sceptical.

On a separate note, I was really pleased at the beginning of the week to participate in a joint Landmark Chambers and Town Legal event, looking at the implications of the revised NPPF, chaired by Hashi Mohamed and with other panellists Rupert Warren KC, Anjoli Foster, Meeta Kaur and Sam Stafford. If you missed it (we were hugely oversubscribed), Sam has now put it out online as a 50 Shades of Planning podcast. Listen via this link or on Apple. Spotify etc.

Simon Ricketts, 20 January 2024

Personal views, et cetera

Image courtesy of Wikipedia

Accommodating Asylum Seekers: Some Recent Planning Law Cases

The scale of the current crisis as to where and how to provide accommodation for asylum seekers can be viewed through a succession of High Court planning law cases over the last year or so. This blog post simply seeks to gather the cases in one place.

For context, there is much useful detail in a House of Commons Library research briefing, Asylum accommodation: hotels, vessels and large-scale sites.

Or here is how Thornton J pithily summarises the position in the most recent case (R (Clarke-Holland and West Lindsey District Council) v Secretary of State for the Home Department (Thornton J, 6 December 2023)):

“Since the Covid-19 pandemic, the number of asylum seekers requiring accommodation has reached unprecedented levels. The time taken by the Home Office to process asylum applications has slowed. The Home Office had for some time been “block booking” hotel accommodation for use by asylum seekers, a system by which hotel rooms are booked and paid for, usually at preferential rates, whether or not the rooms are in fact used. In October and November 2022, a “processing facility” at Manston became overcrowded. After the overcrowding at Manston, and in light of the increasing pressure on accommodation, the Home Office started to “spot book” hotels to accommodate the overflow. Spot bookings can be released without payment if they are not needed. This approach was controversial with the local authorities in whose areas the hotels were being booked and, in some cases, they sought injunctions to prevent the use of hotels for that purpose. Spot booking was intended as a short-term solution, but the absence of suitable alternative accommodation has led to the continued use of hotels booked in that way.

As a result of the strains on the asylum system, in January 2023, the Home Office approached the Ministry of Defence and other government departments enquiring about availability of Crown Estate assets which could be made suitable in the short term to assist with accommodating asylum seekers.”

One of the main issues which has come to the fore is whether planning permission required to house asylum seekers in hotels. Indeed this is the specific topic covered in a 17 February 2023 House of Commons Library insight paper .

In planning law, sometimes the easiest questions are the hardest, such as: is there a material change of use? We all know that difficulties particularly arise in relation to the use of properties for sleeping accommodation: for instance, where the boundary lines lie between dwellings, co-living developments, student accommodation, elderly living, hotels, hostels and emergency accommodation for those in need whether through homelessness or asylum seeking. I blogged about some of these issues way back in my 1 July 2016 blog post Time To Review The “C” Use Classes?

Since that House of Commons paper, whilst the issue has arisen in various applications by local planning authorities for injunctions to prevent such use, there has been no final determination of the issue. In fact, the lesson to draw from the (I think) only case where an injunction has been upheld, Great Yarmouth Borough Council v Al-Abdin (Holgate J, 21 December 2022), is that the question is specific to the relevant facts, circumstances and policy position in every case. In Great Yarmouth Holgate J upheld an application for the continuation of an interim injunction “restraining the defendants from using or facilitating the use of the Villa Rose Hotel, 30-31 Princes Road, Great Yarmouth, or any other hotel within an area protected by Policy GY6 of the Great Yarmouth Local Plan Part 2, adopted  in December 2021, as a hostel, whether for the accommodation of asylum seekers or at all.”

Holgate J did not need to reach a final conclusion as to whether the use of the hotel was in breach of planning control, but simply had to determine by applying the “balance of convenience” test whether the injunction should continue in effect. However, he did state the following:

“Planning considerations are to do with the character of the use of land.  It is common ground that the policies of the development plan may be relevant to that issue.  See, for example, Wilson v West Sussex County Council [1963] 2 QB 764, 785.  In my judgment Policy GY6 is certainly relevant.  It is aimed at protecting a substantial part of the local economy of the borough dependent on tourism. That, in turn, is said to depend upon a collection of tourist facilities, including hotel accommodation.”

“There are some factors pointing against a hostel use.  Proposed use would involve no alteration of the premises and in many ways the operation of the premises would be similar to that carried out ordinarily by hotel operators. There would be no dormitories and it is not suggested the accommodation is basic or inexpensive.

On the other hand, there are factors pointing to a hostel use.  In this case, unlike others, the Council is aware of how the premises would be used.  In part this is based upon their experience of the use of the Victoria Hotel.  The premises would be block-booked for a substantial period of time, solely for occupation by people belonging to one cohort, asylum seekers, having nowhere else to live.  In addition, as Mr Glason points out, there would be a degree of management of movement of the residents.  They are not supposed to be absent for more than three days. The duration of their transient occupation would be determined by their move to the next stage of the asylum process.  The accommodation would be paid for ultimately by the Home Office.   As I have said, the location of the hotel within the Seafront Area in Policy GY6 is important.  The claimant may rely upon that policy as a factor indicating that there would be a breach of planning control.

I have already referred to the increase in the 21-day average stay to something of the order of 26 weeks. There is no suggestion that that period is likely to decrease.  The hotel would be closed to public bookings both as regards accommodation and the restaurant.  There would be little or no expenditure by asylum seekers in the town.  It strikes me that that is a highly relevant factor.  They would not contribute to the local economy.  Policy GY6 resists hostel use for what have been judged to be sound planning and economic reasons.  This is a policy which is highly specific.  It does not, for example, cover the whole of the borough or the whole of the town.  Instead, it is targeted at the most important part of the town for tourism.   It applies to a carefully defined strip of land closely related to the major tourist attractions.

At the end of the day whether a material change of use would occur is a question of fact and degree, but in my judgment the particular policy considerations raised in this case by Policy GY6 strengthen the Council’s case on breach of planning control significantly.”

There are two important specific points to bear in mind with this ruling:

First, the relevant local plan policy:

“In my judgment, GY6 is a highly specific, protective policy directed to a large and highly important sector of the Borough’s economy. Mr Glason provides helpful context for the policy.   In 2019 the annual value of tourism to Great Yarmouth was around £648 million, supporting around 9,600 full-time tourism jobs and 13,000 tourism-related jobs, representing 37 per cent of total employment within the Borough. A recent economic report indicates that accommodation and food services is likely to be the second largest growth sector in the Borough after government services.”

Secondly, there had already been an enforcement notice in relation to change of use from the hotel to use as a house in multiple occupation, which does not appear to have been subject to any appeal. The judge considered that accordingly, “the present case is one where the apprehended breach of planning control has a flagrant character. “

The case is to be contrasted with earlier cases where Holgate J refused equivalent applications:

First, in Ipswich Borough Council v Fairview Hotels (Ipswich) Ltd v Serco Ltd and East Riding of Yorkshire Council v LGH Hotels Management Limited (Holgate J, 11 November 2022). This judgment contains, at paragraphs 72 to 83, useful analysis as to the distinctions between a hotel and a hostel in planning law terms. At paragraph 101 he states that the “distinction between hotel and hostel use in a case of the present kind is fine. There are some factors pointing against a hostel use. The proposed use involves no alteration of the premises. In many ways the operation of the Novotel would be similar to that carried out ordinarily by the hotel operators. There would be no dormitories and the accommodation could not be described as basic or inexpensive. On the other hand there are factors pointing to a hostel use. The premises would be block-booked for a substantial period of time solely for occupation by people belonging to one cohort, asylum seekers, having nowhere else to live. The duration of their transient occupation would be determined by their move to the next stage of the asylum process. The accommodation would be paid for ultimately by the Home Office. It is arguable that the factors pointing towards a hostel use outweigh those pointing against.

The effect of the block-booking of the whole hotel is that no accommodation is available for any member of the public. It is said that the Novotel is the largest hotel in the centre of Ipswich and that the loss of the accommodation would be damaging to the hospitality and leisure economy of the town, given its close proximity to restaurants and bars. It is arguable that this alleged harm is a planning consideration which may render a change to a hostel a material change of use and so attract planning control.”

At paragraph 110: “In each case before this court there are factors pointing for and against the proposed use being a hostel use. Even if a hostel use would be involved, the key question still remains whether it would represent a material change of use. That would depend upon the planning consequences of the change. In each case that turns upon the planning harm identified by the claimant.”

Secondly, in Fenland District Council v CBPRP Limited (Holgate J, 25 November 2022) which related to the use of a hotel in Wisbech, Lincolnshire. Holgate J refers back to his analysis in Ipswich.

Am injunction was similarly not upheld in The Council of the City of Stoke-on-Trent v Britannia Hotels Limited (Linden J, 2 November 2022) (I don’t have a link to that judgment I’m afraid).

An injunction was also not upheld in relation to the use of the Stradey Park Hotel in Llanelli. On 7 July 2023, Gavin Mansfield KC, sitting as a Deputy High Court Judge, dismissed an application by Carmarthenshire County Council for an injunction prohibiting the use of the hotel for housing asylum seekers.

In subsequent proceedings, Roger ter Haar KC , sitting as a Deputy High Court Judge,  granted an injunction to restrain unlawful protest activity against the use of the hotel for those purposes. (Again, no links to these judgments I’m afraid).

And, indeed, the Planning Court has also been kept busy on the wider issues arising.

In R (Parkes) v Secretary of State for the Home Department (Holgate J, 11 October 2023), Holgate J rejected an application for judicial review that sought to establish that the Home Office’s proposed use of the Bibby Stockholm barge, moored in Portland Harbour, for the accommodation of asylum seekers, was unlawful, in part, it was submitted, because planning permission would be needed for such use. As a matter of principle the judge considered that the claim was misconceived: it was for the local planning authority in the first instance to determine whether the proposed use was in breach of planning permission and whether it would be expedient to enforce against any breach. But in any event the barge was below the low water mark and therefore beyond the scope of planning control.

In R (Clarke-Holland and West Lindsey District Council) v Secretary of State for the Home Department (Thornton J, 6 December 2023) (which followed a related judgment of the Court of Appeal on 23 June 2023 which held that section 296A of the Town and Country Planning Act 1990 was a statutory bar to an injunction being upheld against the Government in the case), Thornton J rejected applications for judicial review brought seeking to challenge the lawfulness of the Home Office’s reliance on class Q of the General Permitted Development Order allowing development on Crown land in an emergency in connection with the proposed use of RAF Wethersfield in Essex and RAF Scampton in Lincolnshire for the accommodation of asylum seekers.

I usually end with some flippant closing comments but not today. Behind each case lies much human misery.

Simon Ricketts, 14 January 2024

Personal views, et cetera

Extract from photograph by Marcus Spiske courtesy of Unsplash

The Only Way Is Up

I remember watching Don’t Look Up on new year’s day 2022. Not the best film ever but certainly an apt analogy when It comes to the climate crisis. I can’t believe that was two years ago. Where does the time go?

I’m going to briefly look up again. Last year was the second warmest ever in the UK and the period since July 2023 has been the wettest in 130 years.

And there’s certainly been some domestic political heat around climate issues. I’m thinking back to my 5 August 2023 blog post Does The Government Have An Environmental Strategy Or Is It More Of A Tactic?

Today’s post was simply going to point to guidance published jointly by the Department for Culture, Media & Sport, the Department for Energy Security and DLUHC: Adapting historic homes for energy efficiency: a review of the barriers (3 January 2024) – and I’ll come to that.

But then news came through yesterday afternoon of Conservative MP Chris Skidmore’s resignation of the party whip (5 January 2024).

I had praised Skidmore’s independent review last year of the Government’s net zero plans in my 21 January 2023 blog post Mission Zero Needs Planning. He knows what he’s talking about on the subject.

Here is his resignation statement in full:

“Next week the government will be introducing the Offshore Petroleum Licensing Bill in the House of Commons.

This bill would in effect allow more frequent new oil and gas licences and the increased production of new fossil fuels in the North Sea. It is a bill that I have already stated my opposition to, by not voting in the King’s Speech debate in protest at the bill’s inclusion in the government’s legislative programme.

As the former Energy Minister who signed the UK’s net zero commitment by 2050 into law, I cannot vote for a bill that clearly promotes the production of new oil and gas. While no one is denying that there is a role for existing oil and gas in the transition to net zero, the International Energy Agency, the UNCCC and the Committee on Climate Change have all stated that there must be no new additional oil and gas production on top of what has already been committed, if we are to both reach net zero carbon dioxide emissions by 2050 and keep the chance of limiting temperature rises to 1.5 degrees.

Decisions taken at COP28 last month also set in motion the global transition away from fossil fuels. As the exponential growth of renewable and clean power continues, as we seek to reduce our energy demand for fossil fuels through the adoption of better energy efficiency in buildings and industry, as the adoption of electricity replaces fossil fuels, there is no case to be made for increasing fossil fuel production at a time when investment should be made elsewhere, in the industries and businesses of the future, and not of the past.

As fossil fuels become more obsolete, expanding new oil and gas licences or opening new oil fields will only create stranded assets of the future, harming local and regional communities that should instead be supported to transition their skills and expertise to renewable and clean energy.

The Net Zero Review I published a year ago next week, Mission Zero, set out how net zero can be the economic opportunity of this decade, if not our generation, bringing with it hundreds of thousands of new jobs, new growth, new regeneration and inward investment worth hundreds of billions of pounds. To achieve this however requires long term commitment to the energy transition, and a clear and consistent message to business and industry that the UK is committed to climate action as a global leader, as it has been for the past two decades.

The bill that will be debated next week achieves nothing apart from to send a global signal that the UK is rowing ever further back from its climate commitments. We cannot expect other countries to phase out their fossil fuels when at the same time we continue to issue new licences or to open new oil fields. It is a tragedy that the UK has been allowed to lose its climate leadership, at a time when our businesses, industries, universities and civil society organisations are providing first class leadership and expertise to so many across the world, inspiring change for the better.

I cannot vote for the bill next week. The future will judge harshly those that do. At a time when we should be committing to more climate action, we simply do not have any more time to waste promoting the future production of fossil fuels that is the ultimate cause of the environmental crisis that we are facing.

But I can also no longer condone nor continue to support a government that is committed to a course of action that I know is wrong and will cause future harm. To fail to act, rather than merely speak out, is to tolerate a status quo that cannot be sustained. I am therefore resigning my party whip and instead intend to be free from any party-political allegiance.

I am deeply grateful for the privilege I have had to serve in government across several departments, including as Energy Minister attending Cabinet, and to have been appointed as the Independent Chair of the Net Zero Review. It is nearly fourteen years since I was first elected as the Member of Parliament for Kingswood, and I am especially grateful to my constituents for placing their repeated trust and faith in me. First and foremost, my duty has been to serve them, as their elected representative.

It is with that duty to them in mind as their representative that my personal decision today means, as I have long argued, that they deserve the right to elect a new Member of Parliament. I therefore will be standing down from Parliament as soon as possible.

It has been a remarkable and wonderful opportunity to serve as a Member of Parliament for nearly fourteen years, but I now intend to focus all my energy and attention on delivering net zero and the energy transition.”

A pretty devastating critique.

Against that broader background, it’s difficult to do anything with the Adapting historic homes for energy efficiency: a review of the barriers guidance document (3 January 2024) than damn it with faint praise.

As stated in the document’s introduction:

“Alongside the need to protect and conserve, historic homes have an important contribution to make in meeting our Net Zero objectives, both in terms of their contribution to the broader UK energy efficiency and low carbon heat agenda, and in the carbon which is saved through their continued use and reuse. Historic properties make up a significant proportion of the UK’s building stock, with 5.9 million buildings constructed before 1919. Historic properties can and should be part of the solution, and this report is intended to maximise their potential in supporting our progress towards Net Zero.

Through this review, we have gained a better understanding of the practical barriers that owners of listed buildings and homes in conservation areas face when they want to install energy efficiency or low-carbon heating measures in their properties.” 

The document follows a commitment in the Government’s April 2022 British Energy Security Strategy. It contains sections on the role of the planning system; issues with local authority skills, training and capacity; guidance available for homeowners and occupiers; construction industry sills, training and capacity, and affordability and financial incentives. It concludes with a summary of the 55 actions and future commitments arising. The seven under the heading “planning” are as follows:

  • Delivery of planning reform through the Levelling-Up and Regeneration Act so that it supports good design and environmental outcomes better, is less complex, and easier to engage with            
  • Implementation of the newly updated National Planning Policy Framework (NPPF), including a new policy to support energy efficiency improvements to existing buildings       
  • Consult on changes to permitted development rights for heat pumps in England
  • Consultation on National Development Management Policies including specifically on improvements to historic buildings
  • Consult on the opportunities for greater use of Listed Building Consent Orders (LBCOs) to support energy efficiency improvements to listed buildings              
  • Support Local Planning Authorities that wish to develop exemplar Local Listed Building Consent Orders   (Historic England)
  • Publish a Historic England Advice Note (HEAN) on Climate Change and Historic Building Adaptation to help decision-makers deliver climate action while protecting heritage (Historic England)

The announcements as to national development management policies and also local listed building consent orders are potentially interesting. This is what the document itself says:

“First, as part of the implementation of National Development Management Policies following Royal Assent of the Levelling-up and Regeneration Act, DLUHC will create new National Development Management Policies (NDMPs), including a policy specifically for improvements to historic buildings. This policy will be integrated into the wider suite of heritage National Development Management Policies which will replace current policy affecting decision making in chapter 16 of the National Planning Policy Framework. In doing so, this will help to ensure greater certainty and consistency about decisions on applications for energy efficiency improvements affecting listed buildings and buildings in conservation areas across England. The government will consult on this new policy as part of its development of National Development Management Policies.

Second, the review has demonstrated there is a significant appetite for increasing the use of Local Listed Building Consent Orders to provide upfront listed building consent for certain common energy efficiency improvements on listed buildings so owners can make these improvements without the need to apply for consent. There is not, however, a clear consensus from stakeholders about how and when Local Listed Building Consent Orders should be used to support these energy efficiency improvements. In particular, it will be important that these orders do not permit energy efficiency measures which harm the significance of listed buildings.

As a first step, DLUHC will consult on the opportunities for using Local Listed Building Consent Orders to support energy efficiency improvements on listed buildings. The consultation will specifically ask about:

  • the role for Local Listed Building Consent Orders prepared by local planning authorities; and
  • the potential for a Listed Building Consent Order made by the Secretary of State which would grant listed building consent for certain improvements across England.”

Here’s to much more of this, in particular to closer working between DLUHC and the Department for Energy Security and Net Zero, and in particular to politicians such as Mr Skidmore actually prepared to look up.

Simon Ricketts, 6 January 2024

Personal views, et cetera

Pic by Christian Wiediger via Unspash

London 2024

The next London Mayoral election will be held on 2 May 2024.

As of 9 November 2023 Sadiq Khan held a 25 point lead over conservative candidate Susan Hall, according to a YouGov poll. Anything could of course happen between now and 2 May though, the greatest risk for Khan possibly being if Jeremy Corbyn stands as an independent candidate and splits the labour vote. The deadline for candidate nominations is 27 March so I suspect we will see increasing levels of speculation in the meantime…

To his left, Mr Corbyn. To his right, Mr Gove.

As part of the flurry of DLUHC announcements on 19 December 2023 (see my blog post that day, In DLUHC Jubilo: NPPF & Much More), the Secretary of State wrote to Mr Khan. The letter included the following passage:

“Due to the significant shortfall in housing supply and under delivery of housing in our capital, I have concluded that it may be necessary to take further action now, as a matter of urgency, to make sure London is delivering the homes our capital needs.

With this in mind, I have asked Christopher Katkowski KC to lead a panel of expert advisers comprising Cllr James Jamieson, Paul Monaghan, and Dr Wei Yang, to consider the aspects of your London Plan which could be preventing thousands of homes being brought forward, with a particular focus on brownfield sites in the heart of our capital. I have asked them to produce their report by January and will make sure that it is shared with you.

If you cannot do what is needed to deliver the homes that London needs, I will.”

The terms of reference given to the advisors were published on 22 December 2023. Lichfields have been appointed along with the advisors previously announced.

“The expert advisers will assess whether there are specific changes to London Plan policies that could facilitate urban brownfield regeneration in London for housing delivery in an appropriate manner and, if necessary, recommend changes to the London Plan accordingly.

The output of the review will be a short report, delivered by 15 January 2024, to the Secretary of State.”

The objectives of the work are as follows:

“To consider and, if appropriate, make recommendations for specific changes to the London Plan. The Secretary of State will share the recommendations with the Mayor to consider their implementation.

To work with Lichfields consultants to ensure that there is an evidence base which supports the recommendations of the expert advisers.

To complete a report on how, specifically, the London Plan could be improved to facilitate the delivery of new homes on brownfield sites.”

15 January! It will be interesting to see what emerges. I assume that aside from the implications of the detailed and prescriptive approach taken by the London Plan – a document which is instead meant to operate only at a strategic level – one potential area for investigation will be the extent to which the Mayor’s rigid approach to minimum levels of affordable housing, even in the face of agreed unviability, and/or his requirements as to review mechanisms which can cause difficulties with funders, is holding back delivery (although of course the Mayor’s response is always to point to the level of need for social housing). Will another be the Mayor’s resistance to development in the green belt? But this would only make sense in the context of Mr Gove’s letter if the focus is on previously developed land in the green belt – and even this would uncomfortably with the Government’s 19 December 2023 revision to the NPPF, absolving authorities of the need to review green belt boundaries when preparing local plans…

Are there possibly any clues in two recent Secretary of State decisions?

On 11 December 2023 the Secretary of State overturned inspector Jennifer Vyse’s recommendation and granted planning permission in relation to called-in applications for mixed use development at Homebase and Tesco Osterley, Syon Lane, Hounslow. His approach to the planning balance and overall conclusion in  his decision letter is as follows:

“64. For the reasons given above, the Secretary of State considers that the application is not in accordance with LonP policies D9 and HC1 and LP policies CC3 and CC4 of the development plan, and is not in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in line with the development plan.

65. Weighing in favour of the proposal is the regeneration of under-utilised brownfield land which carries substantial weight. Also weighing in favour is the delivery of up to 2,150 homes which carries substantial weight, and the delivery of 750 affordable homes designed to meet the current housing need profile in Hounslow, which each carry substantial weight. Economic benefits carry significant weight whilst the provision of open space and significant biodiversity net gain both carry moderate weight.  Highway and transport improvements carry limited to moderate weight and the reprovision of an existing Tesco store and the provision of community space each carry limited weight.

66. Weighing against the proposal is less than substantial harm to a number of designated heritage assets which carries great weight. Moderate harm to the character and appearance of the area in relation to the Homebase scheme carries moderate weight. Heritage harm caused by the total loss of a non-designated heritage asset (the Homebase store) carries limited weight and the Secretary of State has considered paragraph 203 of the Framework in coming to this decision.

67. In line with the heritage balance set out at paragraph 202 of the Framework, the Secretary of State has considered whether the identified less than substantial harm to the significance of each designated heritage asset is outweighed by the public benefits of the proposal. Taking into the account the public benefits of the proposal as identified in this decision letter, the Secretary of State agrees with the Inspector at IR15.11 that the public benefits of the appeal scheme are more than sufficient to outweigh the identified harm, including cumulative harm, to the significance of the designated heritage assets. He considers that the balancing exercise under paragraph 202 of the Framework is therefore favourable to the proposal.

68. Overall, in applying s.38(6) of the PCPA 2004, the Secretary of State considers that despite the conflict with the development plan, the material considerations in this case indicate that permission should be granted.

69. The Secretary of State therefore concludes that planning permission should be granted.”

Note the weight placed on delivery of homes, including affordable homes, on under-utilised brownfield land, together with economic benefits, versus heritage harm.

On 4 December 2023 the Secretary of State agreed with his inspector’s recommendation and granted planning permission for the demolition of existing buildings and the comprehensive phased redevelopment of the site for a mix of uses including up to 1,049 residential units and up to 1,200 square metres of flexible commercial and community floorspace in buildings ranging from 3 to 18 storeys along with car and cycle parking, landscaping and associated works. His decision letter demonstrates a similar balancing exercise, in the additional context of Barnet Council not having a five year supply of housing land:

“35. Weighing in favour of the proposal is the delivery of market and affordable housing which each carry significant weight; the reduction in traffic, provision of open space, biodiversity improvements, regeneration benefits and employment provisions which each carry moderate weight; and improvement in healthcare facilities which carries minimal weight.

36. Weighing against the proposal is the less than substantial harm to the designated heritage asset which carries great weight.

37. In line with the heritage balance set out at paragraph 202 of the Framework, the Secretary of State has considered whether the identified less than substantial harm to the significance of the designated heritage asset is outweighed by the public benefits of the proposal. Taking into the account the public benefits of the proposal as identified in this decision letter, overall, the Secretary of State agrees with the Inspector at IR238 that the public benefits outweigh the identified less than substantial harm to the significance of the designated heritage asset, and that the proposal would secure the optimum viable use of the site (IR235). He therefore considers that the balancing exercise under paragraph 202 of the Framework is favourable to the proposal.”

Whatever we think of the Secretary of State’s reasoning in granting these permissions, let’s not give him credit for thereby speeding up the development process. These were both applications which had been resolved to be approved by Hounslow and Barnet respectively in 2021!

Finally, how about this for petty point scoring, in relation to the continuing political pawn which is the Mayor’s extended ULEZ scheme? The Secretary of State would like the Mayor to arrange for vehicles that are the subject of his scrappage scheme to be provided to Ukraine to help with its war effort. The Mayor’s position is that this is not within his legal powers. This is Mr Gove’s latest letter dated 21 December 2023 to the Mayor of London. I have no idea what the right answer is on this specific issue but in a year where there are too many real battle grounds around the globe, perhaps let’s try to avoid unnecessary domestic political battlegrounds? Even in an election year?

Simon Ricketts, 30 December 2023

Personal views, et cetera

PS It’s so often been the case that I’ve had some song going through my head when writing one of these posts that I thought as an end of year gift I would present to you this Spotify playlist – a track for each post this year – I’m sure you’ll be able to match them up…

See you in 2024.

From YouGov 9 November 2023 poll

Street Votes!

I know we are all trying to wind down, or maybe are slumped there fully unwound already, I do know that, I do see you. However, I couldn’t let a DLUHC consultation paper just slip out unnoticed on 22 December…

The Government’s consultation paper on street votes development orders landed this afternoon. The consultation period closes on 2 February 2024

You will recall that this new potential consenting route for domestic development was teed up by section 106 of the Levelling-up and Regeneration Act 2023, which shoehorns new sections 61QA to 61QM into the 1990 Act.

The consultation paper summarises as follows how SVDOs will work in practice:

“11. A group of residents which meets certain requirements will be able to come together with a proposal for permission to be granted for development on their street, for example the addition of an extra storey to properties. The proposal can be put forward by the group of residents directly or with the assistance of an individual such as an architect.

12. The proposal will be examined by the Planning Inspectorate on behalf of the Secretary of State to check that the proposed development is in scope and that requirements prescribed in secondary legislation are met. These requirements will help ensure that development meets high design standards and that local impacts are taken into account.

13. If the proposal passes the examination, it is then put to a referendum. Where the required threshold of votes is met, subject to any final checks, the Planning Inspectorate will make the street vote development order on behalf of the Secretary of State. Once the street vote development order is made, granting planning permission, a person with control of the land can then decide whether they want to take forward development.

14. Where street vote development takes place, local authorities will be able to capture value from the new development via the Community Infrastructure Levy and, when it is introduced, the new Infrastructure Levy, and use it to fund infrastructure that will support the local area.”

The Government proposes that for the procedure to be available there will need to be at least ten residential properties in the street, with rules as to the minimum size of the qualifying group of voters and percentage of votes required as follows:

It is proposed that any proposal must include:

  • “a signed and witnessed letter from members of the qualifying group declaring that they support the proposal, where a proposal has been submitted on their behalf
  • a map which identifies the street area and the land in that street area to which the proposal relates
  • a draft order which includes a description of the development to which the order relates and any proposed planning conditions
  • any necessary supporting information such as impact assessments or statements. Further information is set out in the “Managing local impacts” section of this consultation
  • details of any consultation with statutory bodies
  • a declaration that the qualifying group has engaged with the local community”

“21. In addition, we propose that qualifying groups (or those acting on their behalf) must submit a street design code that sets out illustrated design parameters for physical development within the street area such as number of floors, plot use and the facade treatment of buildings.

22. We also propose qualifying groups (or those acting on their behalf) will have the option to submit a detailed specification of the elevations visible from public spaces for new or extended buildings that are permitted in the street area. If these are submitted, they must include at least one detailed elevation drawing for facades facing public spaces. Specifications of elevations not facing public spaces are optional. Qualifying groups may provide various façade options if a varied streetscape is desired.

23. If plot widths in the street area vary, the specification must include requirements on how the elevations can be adapted to deal with such variation. If they wish, qualifying groups may also choose to include permitted elevations for wider buildings that can be created by merging plots e.g. an elevation for a small mansion block created by merging three existing plots.”

A ”street area” is to be defined as “the properties on each stretch of road starting or ending at a crossroads or as a minor road at a T-junction or where there is a gap between buildings of more than 50 metres. A street is treated as terminated if the continuous stretch of buildings is broken by a bridge wider than 3 metres. This applies to both the street running beneath and over the bridge. A residential property is counted as being in a street area if any part of its boundary runs along the highway. The street area must have at least 10 residential properties within its boundary. We also propose that adjoining streets could be joined together to form one street area, for example, joining together two streets that have fewer than 10 residential properties.”

Detailed design requirements are set out in a table at paragraph 35 of the consultation document, informed by six design principles:

  • Supporting a gradual evolution in the character of neighbourhoods
  • Limiting impacts on neighbours
  • Preserving green space and increasing outdoor space (including balconies)
  • Celebrating heritage
  • Promoting active travel
  • Creating sociable neighbourhoods

If you look at the paragraph 35 table you will see that there is much detail as to for instance, the maximum number of extra storeys (dependent on the density of the area); setbacks; basements; angled light planes; ceiling heights and corner properties.

It is proposed that “street vote development orders should be permitted to go beyond that which might be permitted under the local development plan where the impacts are broadly acceptable in the view of the Secretary of State according to national policy, and it will not cause problems with the implementation of the local plan.”

If the proposal survives examination and the necessary referendum, the Government hasn’t yet decided how long property owners will have to commence development:

  • “Option A: Development must be commenced within 10 years of the order being made. This is longer than is typically allowed for planning permission granted through existing consent routes because the permission will potentially apply to properties under many different owners, some of which may not be able to commence development within a shorter period (e.g. 3 years). The qualifying group would also have the option to propose an increase to this period as part of its proposal if it takes the view more time is needed to commence development;
  • Option B: Development must be commenced within a specified period (e.g.10, 20 or 30) years of the order being made. The qualifying group would also have the option to apply to the local planning authority after the order has been made to extend the commencement period; and
  • Option C: No time period. Permission granted through a street vote development order would be permanent.”

In summary, there’s a lot here for local planning authorities, planning professionals and (above all) home owners to get their heads around. The concept has been widely lobbied for by eg Policy Exchange, Create Streets and YIMBY. I’ll be interested to see the extent to which ultimately there is take-up and, aside from the inevitable definitional problems with any rules-based process such as this, of course there are some open questions as to the extent to which this process, alongside continuing extensions of permitted development rights and the prospect of national development management policies, further marginalises the role of the local planning authority. And does anyone remember neighbourhood development orders and all of that malarkey…?

But something to be picked up again on the other side, as they say.

In the meantime, peace to all in 24 – even to those I may be seeing across a planning inquiry or court room!

Simon Ricketts, 22 December 2023

Personal views, et cetera

Image from YIMBY Street Votes website

In DLUHC Jubilo: NPPF & Much More

God bless planners who have been waiting for this day all year. I hope you participated in the nppfestivities although to my mind the NPPF itself was the least interesting of what was published today (19 December 2023).

This is today’s publication list as it stands at 6 pm (ten items):

  1. The new National Planning Policy Framework and
  2. the Government’s response to consultation on reforms to national planning policy.

I’ve been reading the latest version of the NPPF as against the previous September 2023 version and against the amendments consulted on in December 2022. This is just a first quick take. I’ve just read the lines so far. The interesting bit is of course going back and reading between them. (A Landmark Chambers/Town Legal seminar is planned for 15 January 2024 with exactly this in mind – details here).

As compared to the December 2022 consultation (see my 22 December 2022 blog post) the changes are relatively limited, the main substantive ones being (in broad summary):

  • No further restrictions after all as to when the paragraph 11 tilted balance applies (although for an authority whose plan has reached at least regulation 18 stage the requirement to show five years’ worth supply of housing supply drops to four years). The consultation paper had suggested exclusions where meeting need in full “would mean building at densities significantly out of character with the existing area” and where there is “clear evidence of past over-delivery”.
  • The changes consulted upon to the “soundness” test for local plans, particularly the deletion of the “justified” requirement, are not being taken forward.
  • Whilst as per the consultation draft, the outcome of the standard method for assessing housing requirements for an area is expressed as an “advisory starting point”, the exceptional circumstances for departure make it clear that “the particular characteristics of an area” is in fact the “particular demographic characteristics of an area”.
  • References have been added, supportive of “community-led development”.

The “area character” point has instead been picked up in a new paragraph 130 which advises that “significant uplifts in the average density of residential development may be inappropriate if the resulting built form would be wholly out of character with the existing area. Such circumstances should be evidenced through an authority-wide design code which is adopted or will be adopted as part of the development plan.”

Substantively as per the consultation document, there is “no requirement for Green Belt boundaries to be reviewed or changed when plans are being prepared or updated”. How can this possibly work in Green Belt authorities with high levels of unmet housing need?

As per the consultation document there are plenty of exhortations as to beauty.

3. Consequential changes to the advice in the Government’s Planning Practice Guidance about the Green Belt and about traveller sites .

4. The Secretary of State’s Falling Back In Love With The Future speech at the RIBA.

5. The Secretary of State’s written ministerial statement to the House of Commons: The Next Stage in Our Long Term Plan for Housing Update.

Much of the statement simply summarises the other documents covered in this blog post but the section on Cambridge is worth setting out in full:

“Cambridge

Finally, I want to provide an update on the Government’s vision for Cambridge 2040. In July, I outlined plans for a new urban quarter – one adjacent to the existing city – with beautiful Neo-classical buildings, rich parkland, concert halls and museums providing homes for thousands. This would be accompanied by further, ambitious, development around and in the city to liberate its potential with tens of thousands of new homes.

In the intervening months, Peter Freeman, the Chair of the Cambridge Delivery Group, has been developing our vision for the city, in collaboration with a whole host of local leaders and representatives. I am clear that delivering our vision means laying the groundwork for the long-term, and that starts now.

We plan to establish a new development corporation for Cambridge, which we will arm with the right leadership and full range of powers necessary to marshal this huge project over the next two decades, regardless of the shifting sands of Westminster.

We recognise the scale of development we are talking about will require support from across the public and private sectors, to realise our level of ambition.

And we must also ensure we have an approach towards water that reflects the nature of Cambridge’s geography. So today I am also announcing that we will review building regulations in Spring next year to allow local planning authorities to introduce tighter water efficiency standards in new homes. In the meantime, in areas of serious water stress, where water scarcity is inhibiting the adoption of Local Plans or the granting of planning permission for homes, I encourage local planning authorities to work with the Environment Agency and delivery partners to agree standards tighter than the 110 litres per day that is set out in current guidance.”

6. Housebuilding in London: Letter from the Secretary of State for Levelling Up, Housing and Communities – the highlights:

“We agree that housing delivery in London is far below the levels needed. Not only is delivery considerably short of your own London Plan target by approximately 15,000 homes per year, it was approximately 63,500 homes lower than actual need last year, as calculated by the standard method. This is not a national issue. London was the worst performing region in the Housing Delivery Test 2022. Fewer than half of the London Boroughs and Development Corporations delivered more than 95% of their appropriate housing requirement for the test over the three-year monitoring period. Areas like the West Midlands are overdelivering, while London continues to fall short.

This has a significant effect on the availability of homes for those wanting to live and work in the capital, as well as for the standard of housing available. London’s average house prices remain the most expensive in the UK – an average of £537,000 in September 2023. The average price was over 12.5 times average earnings last year. London has the lowest level of home ownership in England. Our capital also has, as you know, the highest proportion of renters. There are 60,040 homeless households in temporary accommodation, including over 80,000 children.

Under your leadership the GLA is failing to provide affordable homes for those that need them most.

While I welcome the commitments you made in your letter, as well as the ideas you have provided for Government to consider, they are not enough to change this woeful picture. In July, I asked my officials to review housing delivery in London to gain a greater understanding of the reasons for this significant under-delivery. We met stakeholders, including planning authorities, developers, and boroughs to identify the challenges they encounter in delivering housing. In the course of those discussions, a number of issues were raised which stakeholders believe are adversely affecting housing delivery in London.

Due to the significant shortfall in housing supply and under delivery of housing in our capital, I have concluded that it may be necessary to take further action now, as a matter of urgency, to make sure London is delivering the homes our capital needs.

With this in mind, I have asked Christopher Katkowski KC to lead a panel of expert advisers comprising Cllr James Jamieson, Paul Monaghan, and Dr Wei Yang, to consider the aspects of your London Plan which could be preventing thousands of homes being brought forward, with a particular focus on brownfield sites in the heart of our capital. I have asked them to produce their report by January and will make sure that it is shared with you.

If you cannot do what is needed to deliver the homes that London needs, I will.”

7. Housing Delivery Test: 2022 measurement

8. Local Plan intervention: Secretary of State’s letters to 7 local authorities  directing them to revise their local plan timetables – Amber Valley. Ashfield, Basildon, Castle Point, Medway, St Albans and Uttlesford.

9. Direction preventing West Berkshire Council from withdrawing its emerging local plan at a meeting tonight.

10. Freeports delivery roadmap.

A busy day in Marsham Street…

Simon Ricketts, 19 December 2023

Personal views, et cetera

PS This my 400th post. I’ll get the hang of it soon, I promise.

Permission Incompatibility Not Relevant For Decision Maker – Court Of Appeal In Fiske

The Court of Appeal handed down somewhat of a Christmas present today for those of us frustrated with questions raised from time to time by local planning authorities as to whether “Hillside” issues may arise in relation to particular application strategies adopted by our clients. In his judgment today in R (Fiske) v Test Valley Borough Council (Court of Appeal, 15 December 2023) Lindblom LJ makes it clear that this is simply a question for the developer to deal with – it is “not the authority’s job”.

The conclusion is clear although the underlying facts of the judgment take some unpicking. The first elephant trap to avoid is that whilst the case is part of the same saga arising from a local resident’s efforts to thwart development for a proposed solar farm in Hampshire, this is not an appeal from the High Court’s ruling in R (Fiske) v Test Valley Borough Council (Morris J, 6 September 2023) –  the case that endorsed the now well understood legal position in relation to the scope of section 73 permissions, that the development approved must not depart from the description of development on the face of the parent planning permission and must not constitute a fundamental alteration to the development approved by the parent planning permission. The court held in that case that removal of a substation from the approved development (a revised form of substation having been approved within the site by way of a separate planning permission) could not be achieved by way of section 73 given both that this conflicted with the operative wording of the parent permission that referred to a substation and given that the planning committee was not made aware of the removal of the substation from the proposals. (Here is Town Legal’s Town Library summary of that ruling).

In today’s Court of Appeal ruling, the question before the court was as to whether that separate planning permission had been granted unlawfully, given that at the time it was granted the subsequently quashed section 73 permission (to amend the rest of the scheme to be consistent with that permission) had not yet been granted (Sincere congratulations if you are still following this). As encapsulated by Lindlom LJ at the beginning of his judgment:

“Did a local planning authority err in law when granting planning permission for a distribution network operator (“DNO”) substation to connect a proposed solar park to the national grid? In particular, did it fail to have regard to an “obviously material” consideration by not taking into account the incompatibility of that planning permission with the permission it had previously granted for the solar park itself? These questions arise in this case. They involve principles of law that are already well established.”

Lindblom LJ then sets out the relevant legal principles in relation to the nature of material considerations and as to the incompatibility of planning permissions (our old friends Pilkington, Pioneer Aggregates and Hillside).

He goes on to agree with the conclusions of HHJ Jarman KC at first instance: the incompatibility of planning permissions or the prospect of some future breach of planning control was not a material consideration to which the council was required to have regard under any provision of the statutory planning code.

“The fact that the differences between the two proposals were obvious when the challenged decision was taken does not mean that their incompatibility was an “obviously material” and thus mandatory material consideration in the council’s decision. That would be a misconception. The planning system does not preclude the possibility of a number of applications for planning permission being made and granted for different developments on the same site. It accepts the granting and co-existence of mutually incompatible permissions, one or more of which may prove incapable of lawful implementation, whether in whole or in part, unless the incompatibility can be defeated by a further grant of permission under section 70 of the 1990 Act, or section 73. This was a point strongly emphasised in Pilkington.

There is nothing in the judgment of Lord Sales and Lord Leggatt in Hillside Parks, nor in Lord Widgery’s in Pilkington, or elsewhere in the cases to which counsel referred, to support the proposition that the incompatibility between a previously granted planning permission and an application seeking permission for a different scheme is a mandatory material consideration in the decision being taken, either as a general rule or in the “special cases” to which Lord Widgery referred.”

“In the light of the relevant reasoning in Pilkington, recently confirmed in Hillside Parks, and the cases on mandatory material considerations, I do not accept that the fact of the 2017 permission being expressly “associated” with the application for the 2021 permission made the incompatibility between the two permissions an “obviously material” consideration. Such incompatibility did not nullify or prevent the implementation of either the 2017 permission or the 2021 permission. It did not negate the principle of a solar park development on the site, which the 2017 permission had established. Nor did it go to the intrinsic planning merits of the substation proposal that the committee was now considering.”

“I see no force in the submission that the possibility of Woodington Solar acting in breach of planning control was itself an “obviously material” consideration. If the incompatibility of the two planning permissions was not an “obviously material” consideration, the future actions of a developer with the benefit of those two permissions cannot be seen as a matter on which the council needed to speculate. This was a question for Woodington Solar as developer. It did not bear on the planning merits of the proposal in hand.”

“For a large development such as this to require changes to be made to it in the course of design and construction is not unusual. It often happens. When it does, the developer may be expected to make such changes through the normal planning process. If he has the benefit of two or more planning permissions incompatible with each other, or potentially so, there may be lawful steps he can take to overcome that incompatibility and proceed with the development he wants to build. Sometimes this will not be so. In that case the incompatibility will remain, and the lawful implementation of one permission or the other, or both of them, will not be possible. But the local planning authority is not legally compelled to anticipate how the developer might later choose to deal with such inconsistency, or to assume that he will resort to unlawful means of doing so. That is not the authority’s job.”

Hear, hear.

Just waiting now from my NPPF present from DLUHC, although I suspect it may be very similar to what we all received this time last year…

Simon Ricketts, 15 December 2023

Personal views, et cetera

Photo courtesy of Neenu Vimalkumar via Unsplash

2023 Unwrapped (Or The Case Of The DLUHC That Didn’t Bark?)

A pause to reflect as we wait for the latest version of the NPPF finally to be published, possibly in the coming week.

My final post of 2022, It Will Soon Be Christmas & We Really Don’t Have To Rush To Conclusions On This New NPPF Consultation Draft covered the publication on 22 December 2022 of the consultation draft. Back then the final version was to be published in Spring 2023. Never trust a DLUHC time estimate…

That timescale assumed that the Levelling-up and Regeneration Bill would receive Royal Assent that Spring. Ho ho ho. The Act finally received Royal Assent on 26 October 2023, although, as set out in my 4 November 2023 blog post Act Up!, nothing substantive has yet come into force, most elements requiring secondary legislation with only limited sections being switched on from Boxing Day. (My firm has prepared a detailed summary of the planning reform aspects of the Act, running to some 41 pages. Do message or email me if you would like a copy.)

Judging from the tone of DLUHC’s 28 November 2023 response to the Levelling Up, Housing and Communities Committee’s reforms to national planning policy report, together with Mr Gove’s appearance before the Levelling Up, Housing and Communities Committee on 6 December 2023, we assume that the final version of the NPPF will reflect quite closely the December 2022 draft, but time will tell.

Of course, barring a general election in the meantime, in 2024 we will then have consultation on further proposed revisions to the NPPF, to reflect LURA’s proposed reforms to plan-making, and consultation on much else besides.

In the meantime, 2023 has seen yet more ministerial changes with Rachel Maclean sacked in favour of an expanded role for Lee Rowley. There have been at best sporadic attempts to discourage local authorities from withdrawing emerging plans (Spelthorne and Erewash). There has been a self-styled long-term plan for housing. There have been sporadic culture wars – for example the swipe at South Cambridgeshire District Council for its four-day working week trial (anyone remember localism? I have an old book to flog).

But has anything really moved the dial in terms of encouraging housebuilding or indeed encouraging economic activity? Far from it if yesterday’s Planning Resource headline is anything to go by: Number of planning applications plummets 12% year-on-year in latest quarterly government figures (8 December 2023, behind paywall)

Spotify-style, I looked back at which simonicity posts were most widely read, last year. Perhaps this list tells its own story – one of procedural hurdles, unnecessary complexity and political climbdowns. In order:

  1. M&S Mess (21 July 2023). We wait to see what the High Court makes of Mr Gove’s 20 July 2023 decision letter.
  1. Thank You Mikael Armstrong: New Case On Scope Of Section 73 (28 January 2023). The Armstrong case has now been supplemented by R (Fiske) v Test Valley Borough Council (Morris J, 6 September 2023). The scope of section 73 remains a live issue, although the legal boundaries are now pretty clear ahead of the coming into force of section 73B which will raise new questions.
  1. The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment (29 August 2023). The subsequent defeat suffered by the Government on this in the House of Lords was possibly DLUHC’s most embarrassing moment of the year, when taken with the subsequent, aborted, attempt by the Government to introduce a fresh Bill.
  1. New Draft London Guidance On Affordable Housing/Viability (6 May 2023). These are critical issues, particularly in London, and we need to understand as clearly as possible the Mayor’s position. But the GLA draft guidance continues to grow like topsy. Since that post in May we have also had draft guidance on purpose-built student accommodation and on digital connectivity – and in the last week we have had draft industrial land and uses guidance.
  1. Euston We Have A Problem (8 July 2023). Subsequent to the post there was then of course the Government’s total  abandonment of proposals for HS2 north of Birmingham (see my 4 October 2023 blog post, Drive Time) and wishful thinking as to a privately funded terminus for HS2 at Euston. It will be interesting to see what happens this coming year to the idea of a new “Euston Quarter” Development Corporation.

Incidentally, thank you everyone for continuing to read this blog, now in its eighth year (with more daily views than ever before), and for occasionally saying nice things about it. Believe me, I would otherwise have given up a long time ago. I did hope that I could pass it over to chatGPT next year but from early experimentation I suspect not:

Simon Ricketts, 9 December 2023

Personal views, et cetera

BNG For The Benefit Of Mr Kite

(plus other species obviously, yes including the beetles)

The post that follows is just really an excuse for the title. Its initial title was going to be The Unbearable Lightness Of BNG, but that didn’t quite fit – for one thing the biodiversity net gain arrangements that we now have in draft are certainly not light.

So what do we now have? At this government page we have the following documents, all dated 29 November 2023, save where indicated:

What biodiversity net gain is:

Land manager guidance:

Developer guidance:

Local planning authority guidance:

Calculate a biodiversity value:

Legal agreements:

Habitat management and monitoring plans:

Planning practice guidance:

We also have four separate sets of draft Regulations:

There is also some useful Planning Advisory Service guidance, Biodiversity Net Gain in Development Management , including examples of developer guidance, planning conditions and section 106 clauses and template agreements.

My previous criticism of the slight delay that there has been in publishing all of this, ahead of the regime taking effect in January 2024 (April 2024 for small sites and November 2025 for NSIPs), was perhaps a little harsh…

Having skimmed only much of this documentation, what have I picked up?

Some exemptions:

(a) small developments where an application for planning permission is made or has been granted before April 2024,

(b) developments with no impact on priority habitat and where impacts on other habitat fall below specified thresholds (namely less than 25 square metres of habitat that has biodiversity value greater than zero and less than 5 metres in length of linear habitat),

(c) householder applications,

(d) HS2,

(e) off-site gain developments i.e. developments which fulfil the biodiversity net gain requirement arising in relation to another development, and

(f) certain self-build and custom build developments.

Detailed provisions about phased developments.

The regime will not catch section 73 applications where the parent permission predates the coming into effect of the regime.

“Irreplaceable habitats” (which are not included in this regime – ie you cannot simply quantify the value of their loss and show a 10% net gain overall) are defined as including ancient woodlands and ancient/veteran trees.

Much detail as to how the register to be maintained by Natural England will operate.

Still no news as to which will be the “responsible bodies” with which owners will be able to enter into conservation covenants.

A solid step forward for the environment or just another technocratic “price of everything/value of nothing” system? Time will tell, but for now, in the words of Catriona Riddell’s least favourite band …

Let It BNG! This bird has flown. We can work it out. Strawberry fields forever.

Simon Ricketts, 2 December 2023

Personal views, et cetera

Red kite, courtesy of Wikipedia. (Where I live in west Hertfordshire, kites are these days such a common – and wonderful – sight).

There’s No Other Way

To what extent is a decision-maker required to consider, before granting planning permission, whether there are alternative, more acceptable, development proposals compared to that which has been applied for?

The question arises again and again and the answer can be a bit of a blur.

Now that Marks and Spencer’s challenge to the Secretary of State’s decision to refuse planning permission for the demolition and redevelopment of its Oxford Street building has been ruled by Lang J to be arguable and will proceed to a full hearing, we shall see what the court makes of the reliance that the Secretary of State placed upon his conclusion that:

“32. Overall, the Secretary of State concludes that the evidence before him is not sufficient to allow a conclusion as to whether there is or is not a viable and deliverable alternative, as there is not sufficient evidence to judge which is more likely. The Secretary of State also does not consider that there has been an appropriately thorough exploration of alternatives to demolition. He does not consider that the applicant has demonstrated that refurbishment would not be deliverable or viable and nor has the applicant satisfied the Secretary of State that options for retaining the buildings have been fully explored, or that there is compelling justification for demolition and rebuilding.

33. The Secretary of State notes that M&S has stated that it will not continue to occupy and trade from the store for very much longer if permission is refused (IR13.46). Whether or not M&S leave the store following the Secretary of State’s decision is a commercial decision for the company. However, taking into account the locational advantages of the site, the Secretary of State does not agree with the Inspector at IR13.75 that redevelopment is the only realistic option to avoid a vacant and/or underused site.”

My 18 November 2023 blog post, Two Apples: Bramley and Worcestershire, referred in passing to alleged inadequate consideration of alternatives being one of the unsuccessful grounds of challenge in R (Bramley Solar Farm Residents Group) v Secretary of State (Lang J, 15 November 2023). Lang J referred to  Holgate J’s review of the case law on alternative sites in R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport (Holgate J, 30 July 2021 – see also my 30 July 2021 blog post Stonehenge Road Tunnel Consent Quashed) – see his paras 268 to 272, in particular:

“269 The analysis by Simon Brown J (as he then was) in Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P & CR 293,299–300 has subsequently been endorsed in several authorities. First, land may be developed in any way which is acceptable for planning purposes. The fact that other land exists upon which the development proposed would be yet more acceptable for such purposes would not justify the refusal of planning permission for that proposal. But, secondly, where there are clear planning objections to development upon a particular site then “it may well be relevant and indeed necessary” to consider whether there is a more appropriate site elsewhere. “This is particularly so where the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it.” Examples of this second situation may include infrastructure projects of national importance. The judge added that, even in some cases which have these characteristics, it may not be necessary to consider alternatives if the environmental impact is relatively slight and the objections not especially strong.

270 The Court of Appeal approved a similar set of principles in R (Mount Cook Land Ltd) v Westminster City Council [2017] PTSR 1166, at para 30. Thus, in the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site or of the same use on alternative sites are normally irrelevant. In those “exceptional circumstances” where alternatives might be relevant, vague or inchoate schemes, or which have no real possibility of coming about, are either irrelevant or, where relevant, should be given little or no weight.”

And now it has arisen yet again, in R (Peak District and South Yorkshire Branch of the CPRE) v Secretary of State for Transport (Thornton J, 17 November 2023. The CPRE argued that the Secretary of State should not have given development consent for the A57 Link Roads Scheme, on the basis that:

“Ground 1: The Secretary of State unlawfully failed to comply with the requirement in Regulation 21(1)(b) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 to provide a reasoned conclusion on the significant effects of the Scheme because he erroneously treated National Highways’ Environmental Statement as providing a cumulative assessment of the carbon emissions from the Scheme in conjunction with other developments when it did not and he failed to assess the significance of those cumulative impacts.

Ground 2: when concluding that the benefits of the Scheme clearly outweighed the harm to the Green Belt such that there were ‘Very Special Circumstances’ justifying inappropriate development in the Green Belt, the Secretary of State unlawfully failed personally to assess whether credible alternatives proposed might deliver substantially similar benefits with less harm to the Green Belt.”

Both grounds of challenge were rejected but I am going to focus on the second.

“Twenty-two hectares of the Scheme will be located on Green Belt land. The Panel reached the view that the Scheme will cause harm to the openness of the Green Belt. It will cross the Green Belt, introduce permanent embankments, bunds, and barriers alien to the Green Belt; give prominence to vehicles and introduce new street lighting. The Panel gave the harm significant weight in its decision making but concluded that the need for, and considerable public benefits of, the Scheme clearly outweighed the adverse effects of the Scheme, including its harm to the Green Belt. The public benefits weighing significantly in favour of granting consent were said to include the reduced congestion and improved journey time through Mottram, Hollingworth and Tintwistle, as well as between Manchester and Sheffield, together with the significant economic benefits brought about by the improvements proposed. The Secretary of State agreed with the Panel’s conclusion.”

CPRE argued that “in the circumstances of this case, the existence or absence of alternatives that might deliver the same or similar benefits, with no or substantially less harm to the Green Belt, was a mandatory material consideration which the Secretary of State unlawfully failed to take into account. The following reasons were advanced for this assessment. First, the Scheme will involve large scale civil engineering works that will be permanent and irreversible. Second, the Scheme was considered to be inappropriate development and the harm caused to the openness of the Green Belt by the Scheme was given “substantial weight” by the Secretary of State. Third, National Highways had expressly relied on its options appraisal, and “the lack of alternatives” to demonstrate very special circumstances justifying inappropriate development. Fourth, interested parties had specifically identified credible alternatives in the course of the Examination that they claimed would deliver the same or similar benefits with no or substantially less harm to the Green Belt. Fifth, the alternatives proposed were concrete and capable of genuine assessment. They had scored well in early options appraisals, and their promoters were present and engaged in the Examination. Those credible alternatives had received considerable attention in the Examination. Sixth, this was not an “alternative sites” case. Rather, as in Langley Park School for Girls v Bromley London Borough Council ([2010] 1 P & CR 10) and R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport ([2021] EWHC 2161 (Admin)) it was an “alternative schemes” case where the alternative schemes advanced by interested parties fell within the red line boundary of the application site. Seventh, the initial options appraisal was more than seven years old and did not reflect substantial changes in policy and technology since then and had not assessed alternatives with regard to their impacts on Green Belt purposes and openness, as in Langley Park.“

The judge referred to Holgate J’s summary of the case law.

“The category of legal error relied on in the present case is said to be that the Secretary of State erred by failing to take account of the alternatives advanced by CPRE and Mr Bagshaw. An error of law cannot arise in this regard unless, on the facts, the alternatives advanced by CPRE and Mr Bagshaw were so obviously material, that it was irrational for the Secretary of State to fail to consider them.”

The judge rejected the arguments as follows:

“In conclusion; I do not accept the underlying factual basis of CPRE’s primary case that the Secretary of State treated alternatives as a material consideration but failed to assess them for himself. Permission to apply for judicial review on CPRE’s primary case is refused.

Nor am I persuaded that the alternatives advanced by CPRE and Mr Bagshaw were mandatory material considerations such that it was unlawful for the Secretary of State to rely on their assessment by National Highways in its options appraisal of the Scheme. The present case is not analogous with the wholly exceptional set of circumstances in R (Save Stonehenge World Heritage Site) v Secretary of State for Transport [2021] EWHC 2161 (Admin). There is no general principle of law that the existence of alternative sites inevitably becomes a mandatory material consideration in any case where a proposed development would cause adverse effects but these are held to be outweighed by its beneficial effects (Lang J in R (Substation Action Save East Suffolk Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2022] PTSR 74 at §211). Neither the applicant for development consent or the decision maker relied on the absence of alternatives to justify the Scheme. The credibility of the alternatives advanced was in dispute. The present case is distinguishable from Langley Park School for Girls v Bromley London Borough Council [2010] 1P & CR 10). The criticism advanced about the age of the options appraisal by National Highways was addressed by the Panel in its Report.

The Panel approached the alternatives proposed as a matter of planning judgement, giving them brief consideration but focussing its consideration on whether a proportionate options appraisal had been carried out by the applicant for development consent, in accordance with paragraph 4.27 of the Policy Statement on National Networks. The Secretary of State agreed with the Panel’s approach and conclusion. In my judgment the approach taken demonstrates no error of law.”

I have emboldened above the passages which are of most interest.

It is also worth remembering that environmental impact assessment does not require consideration of alternatives, simply a description of the “reasonable alternatives” which have in fact been “studied by the developer”.

In summary, whilst there are exceptions, decision making in relation to planning applications and appeals is not generally about casting around for better alternatives to the proposal under consideration, but about assessing its adequacy, judged against the development plan and other material considerations.

Simon Ricketts, 26 November 2023

Personal views, et cetera