Back To Big: Amended Class MA

My 13 February 2024 blog post The RUBR Hits The Road: Residential Urban Brownfield Regeneration covered the various announcements by the Secretary of State that day. But, of course, that afternoon also saw the loosening of significant restrictions on existing permitted development rights to convert commercial buildings into residential use.

The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2024 comes into force on 5 March 2024.

It makes two major changes to the class MA right (class E commercial, business and service uses to class C3 residential use) that came into force on 21 April 2021. First, the 1,500 sq m floorspace upper limit for building changing use under the right is removed. Secondly, the removal of the requirement that the building must have been vacant for a continuous period of at least 3 months immediately prior to the date of an application for prior approval.

This has been a topsy turvy ride.

First of all, of course, from 2013 class O allowed conversion of offices to residential with relatively limited matters in respect of which the local planning authority could require prior approval and with no limitation on the size of building that could be converted (initially a temporary mechanism that was made permanent in 2015). In 2017 new permitted development rights were introduced to enable conversion of light industrial buildings as well as those falling within the old use A1 and A2 use classes (500 sq m and 150 sq m respectively).

Once the new commercial use class E was introduced by way of the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (in force from 1 September 2020), the Government consulted on various proposed new permitted development rights, including the right “for the change of use from any use, or mix of uses, within the Commercial, Business and Service use class (Class E – see paragraph 12 above) to residential use (C3). The right would replace the current rights for the change of use from office to residential (Part 3, Class O of Schedule 2 to the General Permitted Development Order), and from retail etc to residential (Part 3, Class M of the General Permitted Development Order) which remain in force until 31 July 2021. (See also Part 3 of this consultation document in respect of consequential changes.) It will go significantly beyond existing rights, allowing for restaurants, indoor sports, and creches etc to benefit from the change use to residential under permitted development rights for the first time. The protections in respect of pubs, including those with an expanded food offer, theatres, and live music venues, all of which are outside of this use class, continue to apply and a full planning application is always required for the change of use to or from such uses.

The Commercial, Business and Service use class applies everywhere in all cases, not just on the high street or in town centres. In order to benefit from the right premises must have been in the Commercial, Business and Service use class on 1 September 2020 when the new use classes came into effect.”

“Building on the delivery success of the permitted development right for the change of use from office to residential, it is proposed that there be no size limit on the buildings that can benefit from the right. The right would allow for the building, or part of the building, to change use, rather than lying vacant for example. It is recognised that some retail and office buildings in particular could be a substantial size, and therefore result in a significant number of new homes, the impacts of which would be managed through prior approvals. Permitted development rights do not apply to development that is screened as requiring an Environmental Impact Assessment.”

So at that point the Government was considering not imposing any floorspace limitation. However the Government listened to the outcome of that consultation process. From its consultation response (31 March 2021):

“Question 1: Do you agree that there should be no size limit on the buildings that could benefit from the new permitted development right to change use from Commercial, Business and Service (Class E) to residential (C3)?

10 There were 711 responses to the question, with strong opposition to the proposal. Less than a third were supportive of there being no size limit to the right.

11. Views were expressed as to the impact the measure might have on the viability of the high street. For instance, if it encouraged large numbers of residents to move into the area, this would place additional demands on local services, schools, traffic and parking. It was also suggested that this right could support a trend towards ‘out of town’ shopping while town centres became more residential. Views were expressed about the economic impact that the loss of larger commercial units could have on an area. It was also suggested that the lack of size limit could have far reaching and unintended consequences for local areas and could change the character of those areas. There were some suggestions that there should be a size limit, including that it applies only to ‘smaller shops’.

12. Other respondents felt that the right allowed for the more effective use of buildings, addressing the decline in retail, and changing ways of working, and that a size limit would inhibit such development. There was a view that the change of use of vacant buildings should be supported. Some stated that the policy would result in the loss of neighbourhood parades of shops and local facilities, with a threat to “20 Minute Neighbourhoods” – that is, places where residents have easy, convenient access to many of the places and services they use daily. Views were also expressed as to the potential loss of health services, nurseries and day centres and what impact this might have.”

“47. Reflecting responses to Question 1 that the right should only apply to smaller buildings, the right will provide for up to 1,500 sq m of floorspace to change use. To go further, reflecting comments on the potential impact on business, the building must have been vacant for at least three continuous months. This will help focus the right on smaller buildings that may more easily change use, and which are already vacant, thereby protecting existing businesses. Larger buildings may continue to be brought forward for redevelopment under a planning application, and in such cases may attract affordable housing.”

Accordingly, the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 which came into force on 21 April 2021 imposed a cap of 1,500 sq m on the floorspace that could be converted within a building as well as the requirement that the floorspace should have been vacant for at least three months leading up to the date of the prior approval application.

There was then a further consultation last year on “additional flexibilities to support housing delivery, the agricultural sector, businesses, high streets and open prisons; and a call for evidence on nature-based solutions, farm efficiency projects and diversification” (24 July 2023):

“21. The permitted development right currently allows up to 1,500 square metres of Commercial, Business and Service use to change use to residential; this could allow, for example, the delivery of up to 20 two bed homes. To provide greater flexibility for owners and support housing delivery, it is proposed that the right is amended to allow more floorspace to change to residential use. Increasing the cumulative floorspace that may change use in an existing building could have significant benefits for housing delivery, particularly for larger sites. We are seeking views on whether the size cap should be doubled to 3,000 square metres or removed to provide no limitation on the amount of floorspace that can change use.”

“22. The existing permitted development right requires that the premises be vacant for a continuous period of at least 3 months immediately prior to the date of the application for prior approval. This was introduced to safeguard against businesses being displaced. However, we believe the requirement may be ineffective and could result in property being left vacant for longer periods. In order to provide greater flexibility for owners, enable more premises to change use, and therefore to deliver additional homes, it is proposed that this vacancy requirement is removed.”

The latest changes are the outcome of that consultation although we don’t have any analysis yet of the consultation responses and what may have changed so decisively between the 2021 and 2023 consultation processes. Last week’s statutory instrument was accompanied by an explanatory memorandum  and there is no more detail as to the background to the latest changes than this:

“7.1 Permitted development rights have an important role to play in the planning system. They are an important tool to support growth by providing certainty and removing the time and money needed to submit a planning application. Permitted development rights can incentivise certain forms of development and provide flexibilities and planning freedoms to different users, including businesses, local authorities and local communities.

7.2 There are a number of permitted development rights that allow for the change of use from a variety of existing uses to dwellinghouses. These rights make an important contribution to housing delivery. In the eight years to March 2023, permitted development rights for the change of use have delivered 102,830 new homes to rent or to buy. In the last year 9,492 homes were delivered under these rights, representing 4% of overall housing supply.”

“10.2 There were just under 1,000 consultation responses received. The Government response to the consultation will be published in due course. A summary of responses to the relevant Class MA questions is provided below.

10.3 The consultation sought views on either removing or doubling the limit on the cumulative floor space of an existing building that can change use. Those that supported removing or doubling the floor space limit cited positive impacts on housing supply, with greater flexibility and planning certainty encouraging the delivery of dwellinghouses that might not otherwise have come forward under a planning application. Those that did not support amending the floorspace limit thought that larger schemes would benefit from local authority consideration under a planning application owing to the greater number of planning matters that can inform the decision making process. It was also noted that the permitted development right could impact on the quality of housing delivered.

10.4 The consultation sought views on removing the requirement that a building must have been vacant for a continuous period of at least 3 months immediately prior to the date of an application for prior approval. Those that supported the removal of the vacancy requirement considered that it would streamline the permitted development right for the change of use of commercial, business and service uses to dwellinghouses, speeding up housing delivery, and avoiding unnecessary periods of vacancy. Those that did not support the proposal were concerned that removing the vacancy requirement would result in viable businesses closing or being displaced.”

So, in summary, as from 5 March 2024 any building which has been in lawful class E use for at least 2 years prior to the submission of the prior approval application, may be converted to residential use, as long as various protective designations do not apply, and as long as (if required by the local planning authority) prior approval has been obtained as to:

“(a) transport impacts of the development, particularly to ensure safe site access;

(b) contamination risks in relation to the building;

(c) flooding risks in relation to the building;

(d) impacts of noise from commercial premises on the intended occupiers of the development;

(e) where—

(i) the building is located in a conservation area, and

(ii) the development involves a change of use of the whole or part of the ground floor, the impact of that change of use on the character or sustainability of the conservation area;

(f) the provision of adequate natural light in all habitable rooms of the dwellinghouses;

(g) the impact on intended occupiers of the development of the introduction of residential use in an area the authority considers to be important for general or heavy industry, waste management, storage and distribution, or a mix of such uses; and

(h) where the development involves the loss of services provided by—

(i) a registered nursery, or

(ii) a health centre maintained under section 2 or 3 of the National Health Service Act 2006

the impact on the local provision of the type of services lost.”

The Government’s nationally described space standards must also be met.

By way of reminder, these class MA conversions are not of course subject to requirements as to affordable housing and contributions to schools, health provision and so on.

Desperate measures! No doubt some authorities will contemplate a protective rear-guard action by way of introducing further article 4 directions, although DLUHC has been vigilant in modifying those orders which it considers are wider than is appropriate.

Simon Ricketts, 17 February 2024

Personal views, et cetera

extract from photograph by Sergei Wing via Unsplash

The RUBR Hits The Road: Residential Urban Brownfield Regeneration

“Building homes on brownfield land will be turbocharged under a major shake-up to planning rules to boost housebuilding while protecting the Green Belt. “

For a concise summary of today’s DLUHC announcements and all the links, see my Town Legal colleague Susie Herbert’s post.

I have seen some understandable cynicism about the proposed changes – along the lines of “it’s motivated by the politics” (obviously in part yes); and/or “it’s in dribs and drabs, why couldn’t this have been done as part of the December 2023 NPPF changes?” (well yes, although maybe better late than never?); and/or ”none of it will make a difference” (I’ll declare an interest having assisted British Land and Land Sec in a small way last year with their report More Growth, More Homes, More Jobs: how to reform the planning system to unlock urban regeneration – but I would have said this anyway – I think the announced changes could well make a difference – and in fact there are plenty more within that report that are worthy of consideration!).

There is of course already existing policy encouragement (albeit rather general) in paragraph 124 (c) of the NPPF, which states that planning policies and decisions should “give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs.”

The Government proposes to strengthen that message with the following additional wording within paragraph 129 (c):

“local planning authorities should refuse applications which they consider fail to make efficient use of land, taking into account the policies in this Framework, especially where this involves land which is previously developed. In this context, when considering applications for housing, authorities should give significant weight to the benefits of delivering as many homes as possible and take a flexible approach in applying planning policies or guidance relating to daylight and sunlight and  internal layouts of development, where they would otherwise inhibit making the most efficient use of a site (as long as the resulting scheme would provide acceptable living standards).” [new passages underlined]

I do think this does move the dial further with those references to “delivering as many homes as possible” and (particularly in London) the “flexible approach in applying planning policies or guidance relating to …  internal layouts of development”.

The dial will then move into full “tilted balance” paragraph 11 (d) territory for those boroughs in London and those other 19 towns and cities subject to the urban uplift, where their Housing Delivery Test results (to be published in May) indicate that their delivery of housing was below 95% of the housing requirement over the previous 3 years.

For an indication of the potential outturn of those results see Ross Raftery’s excellent Lichfields blog post today, Testing times for England’s big cities – an extended reach for the presumption and other NPPF changes.

This strengthening of the tests is likely to make a difference (even during this consultation period): it will influence the way that planning committees are advised when they come to make decisions; it will focus a broader spread of authorities on the potential consequences of not meeting delivery targets (admittedly not fully within their control, but certainly partly), and it will certainly influence how inspectors and the Secretary of State approach appeals and call-ins.

In London there is also much good analysis in the excellent report prepared by Christopher Katkowski KC and his panel. From the executive summary:

“6 The consequences of housing under-delivery have significant economic, societal and personal impacts, not least on those who face no alternative option but homelessness (living in temporary accommodation), or who are forced into poor-quality rental accommodation.

7 Public and private sector stakeholders are clear in their view that the London Plan is not the sole source of the problem: wider macro-economic conditions; fire safety; infrastructure constraints; statutory consultees; viability difficulties; and planning resourcing pressures have all contributed.

8 However, there is persuasive evidence that the combined effect of the multiplicity of policies in the London Plan now works to frustrate rather than facilitate the delivery of new homes, not least in creating very real challenges to the viability of schemes. We heard that policy goals in the Plan are being incorrectly applied mechanistically as absolute requirements: as ‘musts’ rather than ‘shoulds’. There is so much to navigate and negotiate that wending one’s way through the application process is expensive and time-consuming, particularly for SMEs who deliver the majority of London’s homes.

9 This position is exacerbated by the change in context since the London Plan was formulated. The London Plan’s ‘Good Growth’ policies were advanced on the basis of public and private sector investment assumptions that were described in 2019 as being “ambitious but realistic” by the London Plan Inspectors. But planning and housing delivery indicators suggest this strategy has not been sufficiently resilient to the subsequent change in circumstances. Housing schemes (and decision makers on applications) have struggled to reconcile the multiple policy exhortations, which create uncertainty and delay in the preparation, submission and determination of planning applications.”

Many will also welcome the Secretary of State including within his consultation paper the question as to whether the threshold for referral of applications to the Mayor should be raised:

“As part of the large scale development theme, a threshold for large scale residential development was first set in the previous regulations in 2000 as development providing more than 500 houses, flats, or houses and flats or residential development on more than 10 hectares. In 2008, this threshold was reduced to 150 houses, flats or houses and flats.

Through engagement, the government is aware that in some instances this threshold is considered to be too low, requiring what may amount to duplicative interactions by developers with the relevant London Borough and with the Greater London Authority which is not always considered proportionate to the nature of the development in question.

The government wants to make sure that this threshold is set at the right level, in order that it adds value to the process of determining applications for potential strategic importance (especially for residential development), and does not inadvertently slow down or disincentivise developments that could be appropriately determined by the London Borough.”

In conclusion, will building homes on brownfield land be “turbocharged under a major shake-up to planning rules”? It’s more a ratcheting-up of policy than a “major shake-up to planning rules” (thankfully). And whilst I refuse to engage with that ridiculous, very Boris Johnson, word “turbocharged” and whilst this is a very late initiative for a Government that is fast running out of road, let’s hope there is at least some acceleration as a result.

Simon Ricketts, 13 February 2024

Personal views, et cetera

The Weighting Game

 I was going to call this blog post National Lottery but then I remembered I’ve already used that strapline back in 2019. 7 years of this blog, 408 posts – round and round the same track we go.

Much has already been written about the Secretary of State’s decision letter dated 6 February 2024 in which he granted planning permission for the redevelopment of the former London Television Centre, on London’s south bank (NB paragraph 1 of the Secretary of State’s letter curiously describes it as an appeal against refusal of the application by Lambeth Council, which it was not – Lambeth was supportive and had resolved to grant planning permission before the Secretary of State intervened by calling in the application).

See eg Zack Simon’s post as to what the decision may tell us as to the question of “beauty”, Nicola Gooch’s post on severability  (although maybe the applicant didn’t have Hillside severability in mind so much as simply phasing for CIL purposes?) and Andy Black’s post on the some of the wider implications of the decision.

I’m not going to duplicate any of those posts. I’m just going to use another aspect of the decision as a jumping off point both for sympathising with all parties who spend vast amounts of time and money at risk on these sorts of application and appeal processes and for giving a small jab at us lawyers.

Because the decision essentially turned on one thing: the Secretary of State having (crucially) found that there was compliance with the development plan as a whole (despite some conflict with individual policies), the pivot was whether there were material considerations which indicated that the proposal should be determined other than in accordance with the development plan – or, more basically, how much relative weight the Secretary of State decided to apply to the public benefits arising from the scheme as against the harms arising from the scheme (whilst applying the appropriate tests in relation to elements of “heritage” harm, for instance requiring “clear and convincing justification” by way of the public benefits arising). To quote the key paragraphs:

“35. Weighing in favour of the proposal are the employment generating opportunities for the Borough in the construction phase as well as the operational phase of the development, which both carry substantial weight, the placemaking benefits delivered by the public realm strategy which carry substantial weight, and the commitment towards an employment and skills strategy over and above the policy requirements as well as the provision of affordable creative workspace which carries moderate weight.

36. Weighing against the proposal is the less than substantial harm to the significance of the designated heritage assets of the RNT, the IBM building, Somerset House, the South Bank CA and the Roupell Street CA, which carries great weight. The Secretary of State has also found that the proposal would not provide a positive contribution to the townscape of the South Bank, which carries moderate weight.

37. The Secretary of State has considered the heritage balance set out at paragraph 208 of the Framework (formerly paragraph 202). He has noted public benefits deriving from the public realm strategy, as well as the other public benefits identified in paragraph 35 above. However, he has also identified less than substantial harm to the significance of the RNT, the IBM building and Somerset House, and to the South Bank CA and Roupell Street CA. Having carefully weighed up the relevant factors, he has concluded that the public benefits of the proposal do outweigh the harm to designated heritage assets. Therefore, in his judgement, the balancing exercise under paragraph 208 of the Framework (formerly paragraph 202) is favourable to the proposal.

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

Of course, a huge amount of expert evidence was given at the inquiry over 12 sitting days by the parties as to each of these matters and the weight to be applied to each of them, but if the Secretary of State had chosen to give less weight to the public benefits set out in paragraph 35, the decision would probably have gone the other way. How much weight the Secretary of State (or any decision maker) gives to such considerations is very difficult to predict – it is quintessentially a matter of planning (whisper political) judgment. (Similarly his decision as to whether, despite non-compliance with some individual policies, there was compliance with the development plan as a whole).

The weighting is particularly interesting, given that he was more bearish than the inspector (who had recommended that permission be granted) on various aspects, including:

  • whether “the scale of the building and the proposed massing provides an appropriate response to the site”
  • finding negative elements to the effects on townscape
  • disagreeing that “the proposed palette of materials and the aesthetic appearance of the building is appropriate for what is a very prominent and sensitive site. He disagrees with the Inspector that an attractive development would be delivered.”

The Planning Practice Guidance summarises the legal position as to the weight to be given to material considerations:

“What weight can be given to a material consideration?

The law makes a clear distinction between the question of whether something is a material consideration and the weight which it is to be given. Whether a particular consideration is material will depend on the circumstances of the case and is ultimately a decision for the courts. Provided regard is had to all material considerations, it is for the decision maker to decide what weight is to be given to the material considerations in each case, and (subject to the test of reasonableness) the courts will not get involved in the question of weight.

Paragraph: 009 Reference ID: 21b-009-20140306

Revision date: 06 03 2014”

And as for public benefits:

“What is meant by the term public benefits?

The National Planning Policy Framework requires any harm to designated heritage assets to be weighed against the public benefits of the proposal.

Public benefits may follow from many developments and could be anything that delivers economic, social or environmental objectives as described in the National Planning Policy Framework (paragraph 8). Public benefits should flow from the proposed development. They should be of a nature or scale to be of benefit to the public at large and not just be a private benefit. […]

Paragraph: 020 Reference ID: 18a-020-20190723

Revision date: 23 07 2019”

To quote Lindblom LJ in East Staffordshire Borough Council v Secretary of State for Communities and Local Government  (Court of Appeal, 30 June 2017):

“Planning decision-making is far from being a mechanical, or quasi-mathematical activity. It is essentially a flexible process not rigid or formulaic. It involves, largely, an exercise of planning judgment, in which the decision-maker must understand relevant national and local policy correctly and apply it lawfully to the particular facts and circumstances of the case in hand, in accordance with the requirements of the statutory scheme. The duties imposed by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act leave with the decision-maker a wide discretion.”

We often pretend that planning decision-making to be a quasi-scientific, quasi-judicial process. But it’s really nothing of the sort. We lawyers can seek to ensure that all material considerations are taken into account, that immaterial considerations are not taken into account, that thresholds and criteria in specific statutory and policy tests are taken into account and that the decision-maker’s reasoning is adequate and rational. We can apply our forensic experience to ensure that the necessary evidence is brought forward and is presented as persuasively as possible – and can stress-test the evidence against us. But beyond that, rather than anything resembling the scales of justice, there is a black box in which there is simply the exercise of planning judgment. (I’m not complaining about that – that is the essence of the role of the planner I would have thought).

My jab at us lawyers is simply that perhaps we do not stress strongly and frequently enough to clients how unscientific the planning application and appeal process is. We are often asked to indicate what the odds are on a proposal finding favour with the decision-maker: what are the percentage prospects of success? This is an entire reasonable question to ask, because otherwise how can the client carry out a proper cost benefit analysis of whether the process is likely to be a worthwhile investment? But save for rare examples of cases which mainly turn on the correct interpretation of a particular policy, we have so little to go on other than analysis (which is often not sufficiently objective and evidence-based and possibly infected by eg optimism bias) of previous trends in decision-making to see what weight has previously been applied to various material considerations, in differing circumstances and permutations – trends which in any event do not amount to formal precedents.

I’m not even sure that appeal odds can be given which are much more than, say:

  • Less than 35 – 40% ie very unlikely to succeed given significant technical or legal hurdles to be overcome.
  • Circa 50% ie yes it’s arguable but it’s going to come down to whether there has been development plan compliance as a whole and the weight that the decision-maker gives to competing material considerations
  • Circa 60% – 65% ie a scheme which appears to be policy compliant and to meet the relevant legislative and policy tests

Would anyone be prepared to bet good money on the basis of assuming prospects materially higher than 65%? In my view it would need to be an unusual case turning on relatively binary issues.

Factors which lead to additional variability:

  • The scale of the development proposal, the range of potential issues and process timescale (will the decision maker or other circumstances in fact change along the way?!)
  • Cases where the principal live issues give rise to a large element of subjectivity, in relation to matters such as design or townscape
  • Is this a Secretary of State decision (ie in relation to an application which he has called in or an appeal he has recovered for his own determination)? – again this inevitably makes the outcome less predictable, both due to the influence of “politics” but due to the additional delays thereby arising (see above)
  • Political/media interest or pressure
  • Unusual proposals and/or where the decision-maker does not have a relevant or consistent track record.

When set against the scale of investment required to promote a large scheme at inquiry or indeed to defend against it, these may be sobering thoughts.

Simon Ricketts, 9 February 2024

Personal views, et cetera

PS Since I left Twitter I have experimented with a few social media platforms. None are ideal but, now that it is finally public access, you could give Bluesky a go. I share these posts there (my account is here) and on LinkedIn and you may find some related content.

Scheme image courtesy of CO-RE website

Treasure Hunt: LURA Commencement Regulations & Transitional Provisions

Peter Ellis sent me overnight a judgment in the Chancery Division of the High Court from Friday: Cotham School v Bristol City Council (HHJ Paul Matthews, 2 February 2024) – part of the convoluted saga of whether some school playing fields had been wrongly registered as a town green. Peter particularly liked, as do I, the judge’s quote from George Bernard Shaw (paragraph 12):

“This kind of legal treasure hunt, searching in the interstices of secondary legislation for the text of the currently applicable law, and holding several inconsistent ideas in your mind simultaneously, is certainly not for the faint-hearted. How lay people can deal with it is beyond me. Little wonder that George Bernard Shaw once wrote that professions “are all conspiracies against the laity” (Preface to The Doctor’s Dilemma, 1906).”

Nice one. Whether we’re laity or lawyers, “treasure hunt” is exactly how it feels as we try to work out when, how and if elements of the Levelling-up and Regeneration Act 2023 will be brought into force.

The Levelling-up and Regeneration Act 2023 (Commencement No. 2 and Transitional Provisions) Regulations 2024  were made on 25 January 2024. (They followed a completely irrelevant (as far as we are concerned) set of commencement provisions made on 18 December 2023 with an even more snappy title: The Elections Act 2022 (Commencement No. 11, Transitional Provisions and Specified Day) and Levelling-up and Regeneration Act 2023 (Commencement No. 1) Regulations 2023).

So what do the latest Regulations achieve?

As of 31 January 2024 a whole range of provisions relevant to the planning system has been switched on, namely:

“(a) [  ]

(b) [  ]

(c)section 94 (national development management policies: meaning);

(d)section 106 (street votes), so far as it confers a power to make regulations and so far as it relates to the provisions of Schedule 9 brought into force by paragraph (q);

(e)section 107 (street votes: community infrastructure levy), so far as it confers a power to make regulations;

(f)section 123 (duty in relation to self-build and custom housebuilding);

(g)section 129 (hazardous substances consent: connected applications to the Secretary of State);

(h)section 140 (enforcement of community infrastructure levy);

(i)section 180 (acquisition by local authorities for purpose of regeneration);

(j)section 181 (online publicity), so far as it confers a power to make regulations;

(k)section 184 (corresponding provision for purchases by Ministers), so far as it relates to the provisions of Schedule 19 brought into force by paragraph (r);

(l)section 185 (time limits for implementation);

(m)section 186 (agreement to vary vesting date);

(n)section 187 (common standards for compulsory purchase data);

(o)section 188 (‘no-scheme’ principle: minor amendments);

(p)Schedule 5 [  ]

(q)paragraph 1 (Town and Country Planning Act 1990), sub-paragraphs (6) to (10) of Schedule 9 (street votes: minor and consequential amendments), so far as they confer a power to make a development order;

(r)paragraph 1 (online publicity) of Schedule 19 (compulsory purchase: corresponding provision for purchases by Ministers), so far as it confers a power to make regulations.”

 However, care is needed. In most cases, the bringing into force of these sections simply enables the Secretary of State to introduce the actual changes without any changes yet “on the ground”. Looking through the sections, the only exceptions to that in the above list (save for some minor and unexciting tweaks to the wording of some provisions)  appear to be various provisions in relation to compulsory purchase – eg acquisition for “improvement” can include “regeneration”; the possibility for the confirming authority to provide for an implementation deadline of more than three years, and the possibility for the authority to agree a postponed vesting date and minor amendments to the “no scheme” principle in section 6D of the Land Compensation Act 1961 (from the explanatory notes at the end of the Regulations: “These sections provide that where land is acquired for regeneration or redevelopment which is facilitated or made possible by a relevant transport project, the ‘scheme’ includes the relevant transport project. The amendments ensure that the definition of ‘scheme’ includes any re-development, regeneration and improvement that form part of the ‘scheme’).

As of 12 February 2024 the biodiversity net gain regime is switched on (albeit, as we know, with later dates for minor development and for NSIPs).

As of 30 April 2024, section 190 of the Act (power to require prospects of planning permission to be ignored) comes into force, in relation to England. This is the big “ignore hope value in some situations” one – from the explanatory notes: “The amendments allow confirming authorities, in relation to certain public sector acquiring authorities exercising certain CPO powers, to direct that the value associated with the following matters are not payable, provided doing so is in the public interest: (a) the prospect of the grant of a planning permission; and (b) compensation for the loss of the potential of development for which there was a reasonable expectation that planning permission would have been granted in the absence of the CPO”) and as of 31 January 2025 section 189 of the Act (prospects of planning permission for alternative development) comes into force (from the explanatory notes: “The amendments make various changes including to when prospective planning permission is to be treated as certain, what certificates of appropriate alternative development should contain, to clarify when the relevant planning date falls, whether account should be taken of the expenses incurred in the issue of a certificate, and corresponding amendments to the process of appeals to the Upper Tribunal against certificates”)– I’ll leave others to look at these in more detail. There are transitional provisions set out in Regulation 6 of the Regulations.

Ugh, that was hard yards. NB if you want to understand what drives me to continue writing these interminable posts, you might want to listen to the latest Hitting the High Notes/50 Shades of Planning podcast, where Sam Stafford interviews me and asks me exactly that question, maybe not quite in those terms. Listen here .

Simon Ricketts, 4 February 2024

Personal views, et cetera

EIA Should Not Be A (Duller) Version Of Gladiators

 “It needs to be borne in mind that the EIA process is intended to be an aid to efficient and inclusive decision making in special cases, not an obstacle-race” (Carnwath LJ as he then was, in R (Jones) v Mansfield District Council (Court of Appeal, 16 October 2003).

The courts continually tell us this, despite so many professionals, politicians and objectors still treating the process of environmental impact assessment as some duller version of Gladiators.

Perhaps if we heeded this message the Government wouldn’t need to tie itself up in knots trying to replace environmental impact assessment and strategic environmental assessment with this still vague idea of environmental outcomes reports (reported by Planning Resource this week as now not likely to progress until 2025!).

I thought about this when looking at this week’s (free subscription) Town Library weekly judgments update  – it contains amongst other things two Court of Appeal judgments dealing with particular assessment issues that regularly arise – as to cumulative effects and as to defining the “project“.

First we have R (Substation Action Save East Suffolk v Secretary of State (Court of Appeal, 17 January 2024) which concerned a challenge to development consent orders for the construction of the East Anglia One North and East Anglia Two offshore wind farms with associated onshore and offshore development.

The case has attracted some interest in relation to the court’s determination that the sequential test in relation to flood risk does not apply to the risk of flooding from surface water:

“The relevant provisions of EN-1, the Framework and the PPG do not require an applicant for development consent to demonstrate that whenever there is a risk of flooding from surface water there are no other sites reasonably available where the proposed development could be located in an area of lower surface water flood risk. The risks of flooding from surface water are to be taken into account when deciding whether to grant development consent under section 104 of the 2008 Act. The way in which account is to be taken of that risk raises issues of planning judgment in the application of the relevant provisions of the policies. The judge was correct in her interpretation of the policy and in finding that there was no irrationality or other public law error in the way in which the first respondent dealt with this issue when granting development consent.”

However, it was also interesting to read the the court’s consideration of the extent to which the potential effects on the environment arising from other projects need to be taken into account as cumulative effects. The appellant contended that “certain projects (known as the “Nautilus” and “Eurolink” schemes) have been identified as projects which could connect with the new National Grid substation. An assessment of the effect of those two projects was included in an Extension Appraisal document supplied by the second and third respondents. The appellant contends that the first respondent should have taken that information into account when deciding whether to make the development consent orders but he did not do so.” The reference in Schedule 4 of the EIA Regulations that the environmental statement must describe the likely significant effects of the development, including “the cumulation of effects with other existing and/or approved projects” is regarded as somewhat of a minefield.

The court ducked whether these potential future projects were to be regarded as “existing or approved” because the decision maker lawfully deferred consideration of the cumulative effects on the basis that there was not yet any adequate information on which a cumulative assessment could be based. “Such information as was available on the likely effects of other potential projects was not relevant to the assessment of the significant effects of the projects forming part of the applications for development consent in the present case.”

EIA pragmatism exhibit #1.

Secondly we have R (Together Against Sizewell C) v Secretary of State (Court of Appeal, 20 December 2023) which concerned a challenge to a development consent order for the proposed Sizewell C nuclear power station. The challenge related to Habitats Regulations Assessment rather than environmental impact assessment but the principles read across. It was argued that the Secretary of State  was wrong in law to treat the permanent supply of water to Sizewell C as not being part of the same project as Sizewell C for the purposes of carrying out an “appropriate assessment” under the Habitat Regulations (“Ground 1”) and that even if the Secretary of State was right to regard the permanent water supply as a separate project, he erred in failing to carry out a cumulative assessment of its effects together with those of Sizewell C itself, as per the Habitats Regulations (“Ground 2”).

Lazily I’m now just going to quote from our Town Library case summary:

“Ground 1

The Court dismissed Ground 1. The Court accepted, firstly, that there was no material difference between the meaning of a “project” under the Habitat Regulations and environmental impact assessment regulations and, secondly, that the principle adopted in previous cases that determining the nature and scope of a project, including whether two or more developments are to be regarded as one project, is a matter for the decision-maker to determine, which can only be subject to judicial review by the court on the grounds of irrationality or other unlawfulness. The Court, although seeking not to be prescriptive, endorsed the factors identified in the Wingfield case as capable of influencing this exercise of judgment.

The Court found no irrationality or any other unlawfulness in the Respondent’s decision, noting not only that he was entitled to reach this decision, but the Court would have reached the same conclusion.

It should also be noted that the Court rejected an argument that the Respondent unlawfully avoided appropriate assessment under the Habitats Regulations and saw the approach taken as a realistic and legitimate use of the “staged approach” previously approved in case law.

Ground 2

Ground 2 was dismissed by the Court for a number of reasons. These reasons included that it is well established that the consideration of cumulative impacts arising from a subsequent development that is still inchoate may be deferred to a later consent stage. Given that insufficient information was available as to the water supply, the decision to defer assessment by the Respondent was rational and lawful.

The Court rejected the argument that no proper assessment of the impacts would be carried out at the later stage because the construction of Sizewell C would result in the inevitable approval of the water supply proposal. There was no evidential basis for assuming that regulators would fail to carry out their statutory duties to assess the adverse effects of the water supply. The Court also rejected the argument that deferral was irrational because of a risk of Sizewell C not being operational in the absence of a water supply, as there was a reasonable level of certainty a permanent water supply would be provided and further the alternatives would still be subject to appropriate assessment.

Accordingly, the appeal was dismissed.”

EIA (HRA) pragmatism exhibit #2.

Simon Ricketts, 27 January 2024

Personal views, et cetera

Photograph courtesy BBC

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