I hope you didn’t notice that there was no blog post last weekend. I really needed the clocks to go back again to give me enough time. Picking up the tablet and chisel a fortnight later is not easy.
So much to say!
Another planning minister bit the dust. I liked Iain Thomson’s quip on LinkedIn about 15 minute planning ministers – far more of a scourge than 15 minute cities.
As part of its ongoing market study into housebuilding the Competition and Markets Authority has published on 15 November 2023 two further working papers, on landbanks and planning rules. To quote from the press release:
“On land banks, the CMA’s analysis has found that, although land equivalent to over a million plots is held in landbanks, in most local areas that land is held by several different builders. The CMA is seeking feedback on this analysis, and in particular, whether local competition is being negatively impacted in the small number of areas where large amounts of developable land are controlled by a small number of housebuilders.
The CMA is continuing to examine the size of land banks overall, recognising that housebuilders need to hold a pipeline of land as sites pass through the planning system. The conclusions of this analysis will be published in the final report.”
“On planning, the CMA has developed options that the UK, Scottish and Welsh governments may consider when reforming their planning systems, including:
Whether a zoning or rules-based approach to development may help improve competition between housebuilders and boost housing delivery.
Making better use of councils’ limited time and resources by requiring them to only consult statutory stakeholders, rather than a wider group, as part of their assessment of planning applications. Late consultee responses on development could also be ignored.
Having an effective housing target which reflects the housing need of specific areas, and improving the ways governments ensure all councils have a proper local plan in place.”
Yep, another set of helpful suggestions as to planning reform.
But I wanted to step back from the politics and just shine a torch on two useful recent planning law cases. And to save myself from too much chiselling, all I am going to do is to point you to the following case summaries put out by those involved:
In the context of a challenge by local residents to an inspector’s decision to allow an appeal for a solar farm and battery storage scheme in Hampshire, the judgment covers a number of practical issues such as:
Where an environmental statement is to be updated at the appeal stage, can the appellant carry out the publicity and consultation process? Yes.
Can a party choose not to call a witness, despite having submitted that witness’ proof of evidence to the inquiry? Yes.
Does the Government’s Planning Practice Guidance on renewable and low carbon energy impose a requirement to consider alternatives where solar farms use best and most versatile agricultural land? No. Consideration of alternative sites will only be relevant to a planning application in “exceptional circumstances”.
Secondly, a summary by Landmark Chambers of NRS Saredon Aggregates Limited v Secretary of State and Worcestershire County Council (Eyre J, 16 November 2023), a case in which Landmark’s Jenny Wigley KC appeared for the successful claimant. Eyre J quashed an inspector’s decision refusing planning permission for a sand and gravel quarry in the green belt, on the basis that the inspector made a legal error in relation to the weight to be applied to the biodiversity net gain (BNG) that would arise from the project. To quote from the summary:
“It was agreed at the inquiry that the scheme would deliver over 39% BNG. The Inspector afforded ‘only moderate weight’ to this on the basis that “some of the biodiversity net gain that would be achieved is required to meet national policy and future legislative requirements in order to mitigate the environmental impact of the development”.
The High Court agreed with the Claimant that the Inspector’s judgement as to weight was affected by a mistaken view as to requirements of forthcoming legislation. Because there was no basis for considering that the legislation might be retrospective, it was plainly not applicable to the scheme to be determined:
“The effect of that interpretation is that when assessing the weight to be attributed to the biodiversity net gain for the purposes of assessing whether there were very special circumstances outweighing the harm to the openness of the Green Belt the Inspector reduced the weight on the basis of a mistaken view as to the law. He did so believing incorrectly that some of the net gain would be required in any event by reason of the forthcoming legislation. That was an error of law and meant that the Inspector exercised his planning judgement as to the weight to be given to that material consideration (namely the net gain) on a basis that was wrong in law.”
The case is a useful way of reminding decision makers that there is, as yet, no legal requirement for 10% biodiversity net gain. The relevant provisions in the Environment Act 2021 have yet to come into force and, when they do (in January, we’re now told), the requirement will only apply to new applications submitted on or after that date. There is a policy requirement in the NPPF for biodiversity net gain, but only that such gain should be positive, i.e above zero, and there are also varying policy requirements in some Local Plans, but still no legal requirement. In emphasising benefits of development proposals, it is useful to stress the degree of BNG being offered and, for all applications already in the system, it is worth pointing out that any degree of BNG goes above and beyond legal requirements and should be afforded due weight accordingly.”
Two reminders that the courts are often more useful than politicians in clarifying how important practical aspects of the planning system should work.
Another fact to note: in the NRS Saredon case, all four counsel were female. In the Bramley case, three of the five counsel were female, as well as of course the judge.
As always, these cases, together with any others handed down last week by the Planning Court or on appeal from the Planning Court, will feature in our Town Library Planning Court Judgments weekly update and you can subscribe for free at the link.
Following royal assent on 26 October 2023, the Levelling-up and Regeneration Act 2023 was finally published on 3 November 2023.
My, this has been some development project. The Bill was introduced into Parliament on 11 May 2022. Due particularly to the amendments introduced at report stage in the House of Lords and subsequent ping pong between the Commons and Lords (which saw all except one of those ultimately rejected), tracking through to work out the final form of the provisions has not been straight forward without sight until yesterday of the final version,
This is still not of course a completed development. The Act just gets the majority of its contents to “shell and core”. Secondary legislation will be needed to complete the job. Timescales for the substantive changes being brought into force? Shrugging shoulders emoji.
Nicola Gooch’s updated commencement table , drawing on section 255 (commencement and transitional provisions) is a useful guide to where we are with most of the planning-related provisions. Some additional comments:
Chapter 2 of Part 3 of the Bill (sections 92 to 101) covers development plans, national development management policies, the London Plan and neighbourhood plans and none of this will come into force until such day as the Secretary of State appoints by way of Regulations. The reality is that the Government first needs to conclude its detailed position on implementing the proposed plan-making reforms, following its 25 July 2023 consultation paper. The transitional arrangements announced in that consultation paper were as follows:
“We confirm our intention that the latest date for plan-makers to submit local plans, minerals and waste plans, and spatial development strategies for examination under the current system will be 30 June 2025. We also confirm our intention that those plans will, in general, need to be adopted by 31 December 2026. As referred to above, these dates are contingent upon Royal Assent of the Levelling Up and Regeneration Bill, as well as Parliamentary approval of the relevant regulations. However, we are setting this out now to provide planning authorities with as much notice as possible of these dates.”
“We confirm our intention to have in place the regulations, policy and guidance by autumn 2024 to enable the preparation of the first new-style local plans and minerals and waste plans. As set out above, this deadline is contingent upon Royal Assent of the Levelling Up and Regeneration Bill, as well as Parliamentary approval of the relevant regulations.”
The Government consulted on options for a phased roll-out of new local plans, to ensure a smooth transition. We don’t yet know the outcome of this.
In terms of protection from speculative development in the meantime:
“We also intend to set out that plans that will become more than 5 years old during the first 30 months of the new system (i.e. while the local planning authority is preparing their new plan), will continue to be considered ‘up-to-date’ for decision-making purposes for 30 months after the new system starts.
Additionally, where a plan has been found sound subject to an early update requirement, and the Inspector has given a deadline to submit an updated plan within the first 30 months of the new system going live, this deadline will be extended to 30 months after the new system goes live. This will ensure that local planning authorities are protected from the risk of speculative development while preparing their new plan.”
This could be extended, depending on the roll-out option adopted.
There has been some discussion around the planning enforcement provisions, particularly as to the extension in England to ten years of the current four years’ deadline for enforcement in the case of building operations and unauthorised change of use of a building to a dwelling. The change will come into force on such day as the Secretary of State appoints by way of Regulations. We don’t yet know whether the Regulations will include any transitional protection – I wouldn’t bet on it. Accordingly, if you are currently in that four to ten year danger zone you might think about applying for a certificate of lawfulness.
Fast track DCOs will in theory be possible from 26 December 2023, together with the power for the Secretary of State to make non-material changes to DCOs, which is when sections 127 and 128 come into force. In practice I assume that we will need the Government to have concluded its detailed thinking on reforms to the DCO process following its 25 July 2023 consultation paper.
Part 4 of the Act deals with the infrastructure levy and, like much of the Act, will not come into force until the Secretary of State introduces Regulations to that effect. Again we await the outcome of the consultation process which took place earlier this year, as to the detail.
This is just a first and very much incomplete dip into the Act, now that we finally have it to hand. I look forward to publication of the official accompanying explanatory notes and, no doubt, a winter blizzard of summaries as to what it all will mean in practice. Part of the difficulty arising from this long LURB soap opera period since last May is that we do need to come back to the final text with fresh eyes so as to work out what it is likely to mean for what we do – and most importantly, when!
And still we wait for the final version of the updated NPPF…
It’s obvious now why the Levelling Up and Regeneration Bill was named as it was. Having now received Royal Assent on 26 October 2023 it is formally the Levelling Up and Regeneration Act 2023, or Lura to its friends.
I consulted the oracle which is The Bump website:
“Origin: German
Meaning: Alluring temptress
Lura is a feminine name of German origin that means “alluring temptress.” A variation of the traditional name Lorelei, Lura is a modern alternative with the same fascinating history and connotations. In legends, Lorelei was the name of a maiden who would lure fishermen to their deaths by singing her haunting song. Today, Lorelai is the name of a rock face along the Rhine River in Germany. With connotations of otherworldly beauty and natural wonder, Lura is an excellent option for your little one.”
Very clever Mr Gove, very clever.
(Although there is also the LURA, which is the Leeds University Rocketry Association. And there is a Portuguese singer, Lura. Planning law is going to get even more confusing).
As is usual, it will take a bit of time for the Act to be printed. In the meantime you either have to trawl through the various sets of amendments on the Parliament website, take your chances with the Government’s press statement or (more usefully) delve into the various summaries already on social media. I would recommend for instance:
Lichfields’ summary of the planning-related sections
I also very much recommend, as a wider update, the latest Planning Law (With Chickens) podcast episode, recorded that day by my Town colleagues, Victoria McKeegan and Nikita Sellers. The chat covers Lura but also much else of what has been happening in our world over the last few months.
Because it isn’t all about the Act, the operation of which is dependent on much further secondary legislation to come. The Act will only change the system’s hardware. A software update, in the form of an updated version of the NPPF following the December 2022 consultation draft, is expected any day now.
In the meantime, Michael Gove’s letter to local planning authorities dated 8 September 2023 is worth a read if you haven’t seen it. I’m not sure it was initially online. For instance:
“First and foremost, this Government is unashamedly supportive of development and regeneration in and around existing town and city centres. This is how we will get homes built where it makes sense, support growth, and enable people to get on the property ladder.
And making it easier to progress such developments is front of mind as we finalise the update to the National Planning Policy Framework (NPPF), following our consultation which attracted more than 26,000 responses. In that context, and ahead of the publication of the refreshed NPPF in the autumn, I wanted to make clear my expectation that:
• development should proceed on sites that are adopted in a local plan with full input from the local community unless there are strong reasons why it cannot;
• councils should be open and pragmatic in agreeing changes to developments where conditions mean that the original plan may no longer be viable, rather than losing the development wholesale or seeing development mothballed; and
• better use should be made of small pockets of brownfield land by being more permissive, so more homes can be built more quickly, where and how it makes sense, giving more confidence and certainty to SME builders.”
[That viability statement is particularly topical].
“My intention is for the regulations, policy and guidance necessary for the preparation of the first new-style local plans to be in place by Autumn 2024. In the new system, planning authorities will need to prepare, consult on and adopt plans within a 30-month timeframe – and follow the same process for each subsequent update of their plans, including examination by PINS.
In the interim, we want local authorities to continue adopting ambitious local plans, which is why we set out fair transitional arrangements in our current consultation on implementing the plan-making reforms. As part of these arrangements, we confirmed our intent that the last day to submit a plan under the current system will be 30 June 2025. I want to reiterate that local authorities without an up-to-date local plan are likely to be subject to the presumption in favour of sustainable development when facing applications.”
Our version of eats, shoots and leaves might be, for instance:
Stop, plan!
vs.
Stop plan!
Or perhaps ask yourself whether you follow your principles, or your principals; or whether you effect better outcomes, or affect them; or whether this issue needs an enquiry, or an inquiry?
Whilst bloggers are not bound by the strict rules of spelling, punctuation and grammar, the grown-ups in the planning system should be: after all (controversial thought), isn’t the modern planning system more about words than about plans?
These thoughts were sparked by Nicola Gooch bringing to my attention Moore v Somerset Council (Jay J, 12 October 2023) – maybe to deflect me from writing about more topical issues (do read her latest post on what has happened to the Lords’ amendments to the LURB now it is back in the Commons).
Moore was just the latest example of litigation spawned by poor drafting, which could have been resolved by way of the introduction of two commas into a local plan policy.
The dispute was all about the meaning of the fifth indent to this policy in Mendip District Council’s local plan:
“Town centre redevelopments, including Saxonvale and, in the longer term, the Westway centre, (as identified in the Policies Map as CP6C), will collectively deliver:
a medium scale foodstore including only an ancillary element of non-food goods – to supplement limited town centre choice and in turn draw back trade from out of town large format foodstores.
Up to 7,000 sqm of non-food retail space in a range of unit sizes …
Residential uses and uses that enhance the attraction of the town to visitors and as an evening destination …
Creative and imaginative public realm improvements as well as new urban spaces which integrate new development areas with the town’s historic centre and which also incorporate and enhance the River Frome as a feature within the town centre.
At least half of the 11,500 sqm of flexible office/studio space requirement (see Table 10) including a permanent site for FETE within the Saxonvale area.”
(my emboldening).
Did this mean that town centre developments were to deliver at least half of the 11,500 sq m of flexible office/studio space identified elsewhere in the plan as “town centre” uses (NB to add to the confusion, that figure was in itself an error, the correct figure referred to elsewhere in the plan being 11,850 sq m)? Or did it mean that this floorspace needed to be delivered within the Saxonvale area of the town centre? And what was the relevance of the reference to FETE, an educational establishment?
The claimant was seeking to challenge a planning permission for a mixed use development at Saxonvale. He contended that the council had wrongly concluded that the policy required the floorspace to be delivered in the town centre generally rather than at Saxonvale.
Jay J was not impressed with the drafting: “[Counsel for Somerset (the successor authority to Mendip)) described [the fifth indent] as “ambiguous” but a more accurate description would be that it is poorly drafted. It would certainly benefit from the insertion of punctuation.”
“It is not just the absence of punctuation that bedevils this provision. The FETE educational site, undoubtedly to be provided within Saxonvale and nowhere else, is completely different in character from the “flexible office/studio space” stipulation. This uncomfortable combination of developments or redevelopments which do not belong together under the same rubric has brought about the present difficulty.”
After detailed submissions from both sides, the judge allowed the claim, in essence concluding that the indent should be read as follows:
“o At least half of the 11,500 sqm of flexible office/studio space requirement (see Table 10), including a permanent site for FETE, within the Saxonvale area”
He accepted that putting the reference to FETE in the same sentence as the flexible office/studio space was still “uncomfortable” but I read the judgment as a valiant attempt at making the best of a bad job!
All credit to local plan inspectors who raise ostensibly nitpicking points on policy wording during local plan examinations. If that isn’t done, this is what happens.
The traditional approach to legal drafting, of course, was to avoid the use of punctuation, so as to impose the discipline of ensuring that the meaning is sufficiently precise without recourse to punctuation that so often can go awry. But with such an approach, text can become overly dense and difficult to understand. Whether or not punctuation is used (and not to use it nowadays comes across as wilfully antiquated), the important thing is for text in plans, agreements, permissions and conditions to be stress-tested. Is the intended meaning unambiguous? It is interesting how many cases reach the Supreme Court which revolve around one phrase, for instance:
Trump International Golf Club v the Scottish Ministers (Supreme Court, 16 December 2015): the requirement, within a condition, for the applicant to submit a construction method statement for approval, but with no express requirement subsequently to comply with the statement once approved.
Suffolk Coastal District Council v Hopkins Homes (Supreme Court, 10 May 2017): “Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”
DB Symmetry v Swindon Borough Council (Supreme Court, 14 December 2022): “The proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose, shall be constructed in such a manner as to ensure that each unit is served by fully functional highway, the hard surfaces of which are constructed to at least basecourse level prior to occupation and bringing into use.”
Do you want to know one of my other bugbears? The use of the slash, as in “/”. Does it mean “or”, “and” or “and/or”? Usually its use denotes that the writers are hedging their bets. The Court of Appeal recently considered the meaning of “live/work” units, in the context of a lease, in AHGR Lyd v Kane-Laverack (21 May 2023). Dingemans LJ considered the circumstances of the grant of planning permission for the unit and concluded that the phrase “live/work” meant “live and/or work”: “the relevant plan which formed part of the planning permission showed the whole of the premises shaded as “live/work” which meant that there was no sub-division imposed by the planning permission into separate “live” or “work” areas. This meant that it would be for the leaseholder to determine where to live and where to work. Leaving such matters to the discretion of the leaseholder suggests a permissive approach to the phrase “live/work” meaning that the leaseholder might decide only to live at the premises, or only to work at the premises, or to do both in parts of the premises at their choosing. Thirdly because a leaseholder might be served with enforcement notices and might ultimately be the subject of criminal proceedings for breach of planning permission, then if it was intended that lawful use of the premises required both living and working, that would be spelled out using language that was clear and unambiguous.”
None of the usual commentary this week. Instead I wanted briefly to share with you that Town Legal and Landmark Chambers have finally updated our joint Planning Court Case Explorer.
This is a tool which we have designed to provide anyone interested in the planning process with free-to-access data in relation to all cases which have been handed down in the Planning Court following a full hearing, since the creation of the Court in 2014 up to 31 August 2023. The Case Explorer also includes data on cases subsequently heard in the Court of Appeal and Supreme Court.
Please explore – and save it on your browser!
You’ll see that the Case Explorer now covers 766 cases (Planning Court: 591, Court of Appeal: 160; Supreme Court: 15). You can click through to the transcript for each of them, and to a summary, by Town Legal lawyers as part of their free weekly Town Library service, of all judgments since 2017. Cases have been categorised by Landmark’s Rebecca Sage, Harley Ronan and Barney McCay.
You will currently see glitches (do tell me about them) and we do not vouch for its absolute accuracy or that nothing has slipped the net. But we hope that is a useful jumping off point for initial research.
Some basic examples of routes you might take through the information:
Know your subject area… If your research task is, for instance, statutory challenges to local plans you will find 222 of them. You want to see which these are? They are all there.
Know your judge… You can search the cases by judge. (By the way, Lang J has handed down more Planning Court judgments than any other judge: 106. Holgate J stands at 54, Dove J at 38).
Who are the most active litigants? In terms of the private sector and NGOs, whether as claimant or interested party, way out in front is Gladman, at 16 (including three appeals); second is Redrow at 8; joint third are Friends of the Earth and the Open Spaces Society, both at 6. In terms of the public sector, we have four authorities which are all at 9: Canterbury, Lambeth, Maidstone and Westminster.
Again, in every instance you can click through to the actual judgment transcripts – and, usually, Town Legal case summaries.
Predicting likely timescales is so often critical… The average duration of a case, from the date of the decision that is challenged to the date of handing down of the Planning Court’s judgment following a full hearing is 333 days, if you consider all of the 591 judgments handed down since 2014. If you just consider the 12 judgments handed down in Q3 2023 up to 31 August, the period rises to 393. (Bear in mind that these statistics do not include cases that do not reach a full hearing, having been sieved out at permission stage or withdrawn – it would be extremely useful to have this further information).
Town Legal and Landmark Chambers will be doing some more in-depth analysis over the coming weeks. If you would be interested in any of the output, do let me know, or indeed Mike Gooch at Landmark Chambers (without whom, et cetera).
Thank you, Heather Sargent, for sharing this appeal win on LinkedIn. This is what I turn to LinkedIn for, rather than for posts about legal directory rankings!
This decision letter dated 6 October 2023 is a must-read for anyone grappling with Conservation of Habitats Regulations issues in relation to nutrient/water neutrality or recreational impact issues.
In summary, the Inspector, Michael Hayden was faced with two identical appeals against the refusal of planning permission relating to proposed residential development (up to 78 homes). The site straddles the South Downs National Park Authority and Horsham District Council areas.
There were various issues to be determined by the inspector but I just want to focus on one:
“the effect of the proposed development on the integrity of the Arun Valley Special Area of Conservation, Special Protection Area and Ramsar sites, with particular reference to water abstraction, taking account of the proposed water neutrality measures.”
I first covered the north Sussex water neutrality issue in my 19 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water. This is equivalent to the nutrients issue which of course has recently been so much in the news – and where we await a fresh Bill to re-present the legislative fix rejected by the House of Lords in its report stage debate on the Levelling up and Regeneration Bill (see eg my 16 September 2023 blog post NN No).
One of the frustrations surrounding the neutrality veto has been with the approach of Natural England and local planning authorities, which have been disinclined to accept that, given that any adverse effect on the integrity of the relevant SAC or SPA only occurs when the homes are occupied, in appropriate circumstances planning permission can still lawfully be granted, and reserved matters applications and pre-commencement condition discharge applications approved, with a Grampian condition preventing occupation until a satisfactory solution is in place to ensure no adverse effect. Whilst it is said that this just kicks the can down the road – who will build if there is no certainty as to occupation? – in some circumstances it can assist, where for instance there will in any event be a long development lead time and the developer is prepared to take the risk that in due course a strategic solution will have been arrived at and implemented – and is prepared to contribute to the costs of that solution and generally seek to ensure that it is achieved.
So what is so interesting about the Storrington decision letter is that the appellant took this issue head-on. And the inspector accepted its approach. See paragraphs 67 to 109 of the decision letter. If your work involves neutrality issues, it’s worth reading them in their entirety.
The appellant’s position was that its scheme incorporated various measures to reduce the increased demand for mains water from the proposed development:
“76. In order to achieve water neutrality, the appellant proposes to mitigate the increased demand for mains water from the proposed development through a combination of on-site water reduction measures and an off-site offsetting scheme. In terms of on-site measures, it is proposed to install water efficient fixings, and greywater recycling and rainwater harvesting systems into each dwelling. It is common ground that these measures would reduce potable water consumption from the residential development to 8,129.07 litres per day, subject to suitable management and maintenance to ensure they are effective.
77. The signed and executed UU contains obligations requiring an On-Site Water Neutrality Scheme to be submitted to, and approved by, the LPAs and implemented prior to first occupation, which would include a regime for the management and maintenance of greywater recycling and rainwater harvesting systems by a management company. I am satisfied this would provide a legally binding mechanism for the LPAs to ensure the long term effectiveness of the measures to reduce potable water use to the required level within the proposed residential development. This position was confirmed by the Council’s witness in oral evidence at the Inquiry.”
Over and above these measures:
“79. The appellant seeks to rely on one of two alternative means of offsetting the residual water demand of the proposed development:
• payment of a fee or tariff into an LPA-led offsetting scheme for the Sussex North WRZ as a financial contribution towards an equivalent reduction in mains water demand elsewhere in the WRZ (the strategic offsetting scheme); or
• installation of a rainwater harvesting scheme at a garden centre in Horsham that would deliver an equivalent reduction in mains water use (the site specific offsetting scheme).
80. The strategic offsetting scheme is not yet in place, but how it would operate is explained in the Mitigation Strategy prepared for the Sussex North WRZ45. The first element of the Strategy is a programme being implemented by Southern Water to reduce water demand across the network by reducing leakages and household water consumption. This is expected to mitigate a large part of the increase in demand from committed and planned housing growth in the WRZ in the period 2021-2039.
81. The balance of the increased water demand is proposed to be mitigated through an LPA-led offsetting scheme, comprising a series of measures to reduce water demand in social housing and property under LPA control, which would be funded by a tariff on all new development per litre of mains water required to be offset. The most significant measure would be a programme for retrofitting flow regulators into existing social housing stock within the WRZ managed by local authorities or registered social landlords (RSLs), the effectiveness of which has already been demonstrated in trials.”
“83. On the question of prioritisation, the Mitigation Strategy recommends that priority should be given to sites allocated in local plans or identified in the associated housing trajectories, such as through the allowance for windfall, albeit not strategic-scale windfall49. In this case, around two-thirds of the proposed residential part of the appeal site is allocated for housing in the SSWNP. The housing proposed on the part of the site allocated for allotments would count as windfall provision, not at a strategic scale, for which an allowance is included in the housing trajectory for Horsham district from 2024/25 onwards50. If allowed therefore, the appeal site should be a candidate for priority of access to water neutrality via a payment to the offsetting scheme, given that it forms part of the planned and projected housing growth in Horsham district.
84. I recognise that the governing body for the strategic offsetting scheme is likely to have choices to make in terms of an order of priority for permissions to access the scheme, particularly early on in its operation. However, if the appeal proposals were allowed, the appellant confirmed that they would not need to rely on the strategic offsetting scheme for a period of 18 months from the grant of planning permission, whilst reserve matters were dealt with, the allotments relocated and site infrastructure laid. By that time (early 2025), the LPA-led offsetting scheme would have been operating for around 12 months and offsetting capacity from the SW programme is likely to be available to contribute to water neutrality in planned housing schemes. Furthermore, under the suggested standard time limit condition, the appellant would have up to 5 years from the grant of planning permission for the outline residential component of the proposed development to be implemented. By then (mid-2028), the strategic scheme would have been operating for over 4 years, with further offsetting capacity added to the scheme by both the LPA-led and Southern Water programmes.
85. Therefore, there is firm evidence that the proposed development would be able to access offsetting capacity within the strategic scheme to mitigate its residual water demand. However, case law establishes that in order for a competent authority to reach a conclusion under Regulation 63 of the Habitats Regulations that a project will not adversely affect the integrity of the European site, there must be no reasonable scientific doubt. In order to provide the necessary degree of certainty, the appellant has proposed a ‘Grampian’ condition and an obligation in the S106 UU, the effect of which would be to prevent implementation of the proposed development until a payment is made to HDC under the strategic offsetting scheme and water neutrality secured.”
The inspector noted that the threshold for imposition of a Grampian condition is simply that it would not be the case that there are “no prospects at all” of the action in question being performed within the time-limit imposed by the condition. “The Council’s evidence is that there is a very slim, 5%53 prospect of the appeal proposal being able to offset its water demand through the strategic scheme during the lifetime of any permission. A slim prospect does not amount to no prospect at all. Therefore, the condition would be reasonable in terms of the likelihood of access to the strategic offsetting scheme.”
The council was worried about the precedent effect but the inspector considered that each application needs to be determined on its own merits. “In this case, I have established above that a large part of the residential component of the appeal site is included in the planned housing growth in Horsham District, and the remainder would contribute to the windfall allowance in the housing trajectory, both of which the Mitigation Strategy recommends should be priorities for the strategic offsetting scheme. Accordingly, the condition would not be unreasonable on this count either.”
He considered that the measures set out in the section 106 unilateral undertaking would be workable in practice and met the requirements of Regulation 122 and of section 106 itself.
But what about Natural England’s objection?
“93. NE’s position with regard to the strategic offsetting scheme remains that whilst the mitigation strategy is evolving, decisions on planning applications should await its completion or demonstrate water neutrality by other means. Whilst the advice of NE as the expert national agency on this matter carries significant weight, case law establishes that, as the competent authority, I may lawfully depart from this advice, provided I have cogent reasons for doing so.”
After analysis he considered that he did.
The appeal was allowed. The relevant planning condition reads as follows:
“16. No development shall commence that results in an increased use of potable water when compared with the existing baseline water usage at the site until either:
(1) Water neutrality mitigation has been secured via the Council’s adopted Offsetting Scheme (in line with the recommendations of the Sussex North Water Neutrality Study: Part C – Mitigation Strategy, Final Report, December 2022) as set out in the Planning Obligation that accompanies this planning permission and this has been confirmed in writing by the Local Planning Authority; or
(2) The site specific Water Neutrality Mitigation Scheme set out in the Planning Obligation that accompanies this planning permission has been implemented in accordance with the requirements set out in the Planning Obligation and the Local Planning Authority has given its written confirmation of the same.”
Horsham District Council had applied for costs, partly on the basis that “the Appellant did not submit their full case on water neutrality with the appeals, delayed the provision of key information on their revised water neutrality strategy until 31 January 2023, and presented information on rainwater yield coefficients in an inaccurate and misleading way, leading Natural England and the Council to misinterpret the case, and the Council to incur unnecessary and wasted expense in terms of counsel’s advice and officer time redrafting its evidence.”
That costs application was refused.
This is a decision which will cause ripples but in my view is wholly in line with the regime set out in the Conservation of Habitats Regulations and potentially applicable to issues relating to, for instance, nutrient neutrality or recreational impact (eg Chiltern Beechwoods SAC).
B Side: Keep The Customer Satisfied
Phew, no politics in this blog post. After my midweek Drive Time post I was politely asked by a reader to keep politics out of my comments on planning. I think it was felt that simonicity had become simon15minicity. All reaction is good, and thank you for it, but the request is difficult, given that the whole of the planning system is a political construct and given that every legislative stub that we have to navigate around is the result of an often short-term political decision in the past. We arrive at a better planning system by seeking to ensure that those political decisions are as considered as they need to be. I also had push-back from a couple of people at my characterisation of the prime minister’s comments on 15 minute cities as “bizarre”. I would simply refer readers to the numerous fact-check pieces out there (see eg Full Fact). Whether wilful or in ignorance, I don’t think there really is an excuse for mixing up the 15 minute city concept (previously supported by the Government – see eg this 31 March 2023 statement) with traffic management measures in cities such as Oxford to ration use of road space and prioritise active travel. At the recent Oxford Joint Planning Law Conference, that hotbed of woke radicalism, Jonathan Porritt spoke of the dangers of each of us being a WeWeBe: a well-informed, well-intentioned, bystander. Let’s not be that. We can avoid that whilst maintaining party political neutrality. If people who know about something don’t say something, who will?
The neutrality concept needn’t mean that nothing at all can be done – or said.
Turbulent times as the Conservative party desperately looks to position itself for the next general election, still mindful, it seems, of its narrow, anti-ULEZ fuelled, win in the Uxbridge and South Ruislip by-election in July 2023.
I wonder if the prime minister has recently read chapter 9 of the NPPF (“Promoting Sustainable Transport”)?
I wonder if the prime minister recalls that since 1 June 2023 a new Government quango, Active Travel England is a statutory consultee on all large planning applications to “to help planning authorities in their work to implement good active travel design – for example, by ensuring developments include walking, wheeling and cycling connectivity to schools and local amenities. This will help improve public health, save people money and reduce harmful emissions.” ATE’s framework document may be seen as dangerously woke in this new political climate, aiming to deliver increases in active travel to 50% of all journeys in urban areas.
“End the sale of new petrol and diesel cars and vans from 2030; from 2035, all new cars and vans must be zero emission at the tailpipe.” (long gone)
“Increase the share of journeys taken by public transport, cycling and walking.”
“Invest £2 billion in cycling and walking, building first hundreds, then thousands of miles of segregated cycle lane and more low-traffic neighbourhoods with the aim that half of all journeys in towns and cities will be cycled or walked by 2030. As announced in the Transport Decarbonisation Plan, we will create at least one zero emission transport city.”
The party’s Manchester conference saw two major policy announcements by the Government on transport (neither made first to Parliament as convention requires):
From the foreword to the Plan for Drivers, the car is king again:
“There’s nothing wrong with driving. Most of us use a car and, for many, life would not be liveable without their car. For those in rural areas, it is a lifeline. A car can hugely expand the independence of a younger person, as well as keep older people connected to key services and their families.”
There is the rather grudging nod to other modes of transport, but whatever you do, don’t vilify the private car:
“Walking, cycling and public transport are necessary in a multi-modal transport system and we support their continued growth, but they are not the right choice for everyone’s journey. Being pro-public transport does not mean being anti-car. The easy political choice is to vilify the private car even when it’s been one of the most powerful forces for personal freedom and economic growth in the last century. Used appropriately and considerately, the car was, is, and will remain a force for good.”
That first sentence is somewhat mealy mouthed in the face of what follows. The Government apparently intends to:
“update guidance (in England) on 20mph speed limits. While 20mph zones are an important tool in improving road safety in residential areas, over-use risks undermining public acceptance, so we are clear that 20mph zones should be considered on a road-by-road basis to ensure local consent, not as blanket measures
stop local authorities using so-called “15-minute cities” to police people’s lives. We will consult on measures including the removal of local authorities’ access to DVLA data to enforce such schemes by camera
following the LTN review, consider new guidance on LTNs with a focus on the importance of local support, and consider as part of the LTN review how to address existing LTNs that have not secured local consent”
Local authorities policing people’s lives via “15 minute cities” enforced by cameras? Bizarre.
There will be restrictions on the operation of bus lanes, measures to make parking easier, discouragement of penalty charge notices. And so it goes on.
And then today we had, to accompany the prime minister’s party conference speech, Network North – serving as the political cover for today’s decision to scrap HS2 north of Birmingham. Regardless of the noise about monies being diverted to other transport projects (many of which, worryingly for our climate change targets, are of course road projects), the cancellation decision is disturbing – not just for people and businesses who would have benefited from the longer route – but of course hugely upsetting also those whose properties have already been taken, as well of all of us whose money has been spent, irreversibly changing the environment including areas of outstanding natural beauty and ancient woodlands, on the basis of asserted public benefits that will now never be fully realised. In retrospect, today’s decision raises question marks over the initial decision by David Cameron’s government to proceed – as well as subsequent governments’ decisions to continue.
I was at least pleased to see that the Government has at re-committed to the line actually reaching Euston:
“We are going to strip back the project and deliver a station that works, and that can be open and running trains as soon as possible, and which has the leadership in place to deliver maximum value to the taxpayer. We will not provide a tunnel between Euston and Euston Square underground station or design features we do not need. Instead we will deliver a 6-platform station which can accommodate the trains we will run to Birmingham and onwards and which best supports regeneration of the local area. That is how we properly unlock the opportunities the new station offers, while radically reducing its costs.
We will appoint a development company, separate from HS2 Ltd, to manage the delivery of this project. We will also take on the lessons of success stories such as Battersea Power Station and Nine Elms, which secured £9 billion of private sector investment and thousands of homes. So we will harness the future growth that the station will unleash to support its development, to ensure we get the best possible value for the British taxpayer – and ensure that funding is underpinned by contributions from those people and businesses its development supports. At the same time, we are considerably upping the ambition of the Euston redevelopment, where we will be looking to establish a Development Corporation to create a transformed ‘Euston Quarter’ – potentially offering up to 10,000 homes.”
It will be interesting to see what ensues.
Foot to the floor, election ahead….
Simon Ricketts,4 October 2023
Personal views, et cetera
Detail from one of the first records I ever owned…
How precisely will the complex regime introduced by the Environment Act 2021 be implemented in practice? There was good news in the statement:
“By the end of November, we will publish all guidance and the regulations including:
• the statutory biodiversity metric, critical for calculating the correct biodiversity gain
• the draft biodiversity gain plan template, which will help developers prepare for what they will need to complete during the planning application stages
• the Habitat Management and Monitoring Plan template, which will set out how the improved significant on-site and off-site habitats will be managed for the long term
• a package of Biodiversity Net Gain guidance that sets out further advice for landowners, developers, and Local Planning Authorities around their role and responsibilities in delivering mandatory Biodiversity Net Gain
These materials will ensure that developers and planning authorities have access to the necessary tools and information to effectively implement Biodiversity Net Gain in January 2024, ensuring they deliver the homes that the country needs while benefitting nature and local environments.”
The awkward bit? We weren’t just expecting the guidance and regulations, all much delayed, but November 2023 was to be when the regime was actually to be implemented! Whoops. BNG for small sites had already been pushed back to April 2024 and BNG for nationally strategic infrastructure projects was always going to be later, but since 2019 DEFRA’s position has been that the BNG regime would come into effect two years after the Act received Royal Assent (9 November 2021). Whoops again.
Of course the work is difficult – it’s a forbiddingly complex regime, quantifying biodiversity numerically and effectively creating a state-backed credits-trading system. But we all knew that – and said as much during the passage of the Bill. Back in my 2021 blog post I naively hoped that the delays in the Bill would allow progress to be made on much of this as the Bill progressed. What have the array of ministers that we have had in DEFRA and DLUHC since 2019 actually been doing?
It isn’t just the Government that needs more time to complete its homework. The system relies on local government knowing what it is meant to be doing and being sufficiently resourced to cope with its new responsibilities. Earlier in the month, the RTPI was raising concerns on behalf of its members, RTPI publishes worrying new data ahead of Biodiversity Net Gain implementation deadline (7 September 2023):
A “survey of our RTPI members found that:
61% of public sector planners cannot confirm they’ll have dedicated BNG resource and ecological expertise in-house in place by November.
79% of public sector planners believe that BNG practice would be improved with confirmation of additional ‘skills and staff’
78% of public sector planners believe that BNG practice would be improved with additional ‘guidance, advice and support’
54% of planners across the public and private sector believe that BNG practice would be improved by giving ‘case studies of best practice’”
Let’s hope they are in a better position by January.
In another part of the forest, concerns as potential unintended consequences of the BNG regime were raised by the House of Lords Built Environment Committee in its 21 September 2023 report The impact of environmental regulations on development:
“Biodiversity net gain
178.Liz Hart told the committee that the biodiversity net gain (BNG) requirement is “putting developers off brownfield sites”. Remediation of a brownfield site, such as removing contaminated soil, can have a negative impact on biodiversity irrespective of any benefits from the removal of contaminants. If the same BNG metric applies to greenfield and brownfield sites, there is no incentive to fund remediation: a developer risks making a substantial financial outlay to remediate a site only to result in potentially significant negative BNG with further investment then being required on mitigation. We heard that the development of brownfield sites may depend on larger developers building on greenfield land to create a surplus of BNG credits.
179.The Minister for Natural Environment and Land Use agreed that where remediation involved removing contaminated soil that was beneficial to wildlife it would have a negative impact on BNG. However, she suggested many brownfield sites have low biodiversity value or will be below the de minimis threshold. The Wildlife Trust disagreed, suggesting this is often “far from reality” with brownfield sites commonly being successional habitats, home to a variety of rare species.
180.Brownfield development is a key government policy supported by the public and vital to delivering homes. The Government should ensure that remediating brownfield sites is not disincentivised by biodiversity net gain requirements. Local planning authorities should be able to moderate biodiversity net gain requirements for sites on their brownfield registers.”
I have a sense that implementation of this regime is only going to be the start. In the meantime, even this relatively short two months’ delay (assuming the latest commitment is met) sends another really poor signal as to (1) this Government’s ability to deliver on its promises and (2) as to the lack of priority that it would appear to be giving to the environment.
Repeat after me: the planning system isn’t just about housing.
Any country needs adequate modern space for ensuring that goods of every description, basically everything around us, can be efficiently and quickly delivered to their destination. Of course we are more reliant than ever on complex, often international, supply chains and in recent years we have seen how sensitive they are to disruption. Locational, operational and energy efficiency is also key to minimising the costs which ultimately will be borne by the consumer. We know all this. And yet somehow there’s a disconnect when we need to think about planning for the necessary floorspace, whether in large modern, often highly automated, high-bay warehouses or in “last mile” urban logistics hubs.
Last year the British Property Federation, in conjunction with Savills, published a great explainer document, Levelling Up – The Logic of Logistics.
planning decision taking and the applications process
how the planning system can support specific policy priorities, including:
supporting supply chains
decarbonisation of freight
heavy goods vehicle (HGVs) driver parking facilities and welfare
strengthening the Union
I know that the DfT is very much wanting to hear positive suggestions as to how the system can be made to work better.
Last Tuesday my Town Legal colleague Paul Arnett recently co-hosted, alongside Quod, a roundtable meeting attended by a number of operators and developers in the sector, together with those in the public sector.
Some interesting comments were made. For instance:
Conceptually the way in which the local plans system struggles, without a more strategic plan making tier, with assessing and planning for the larger than local need for logistics space. Often the need for development at particular locations is driven by geography and road/rail/port access rather than particular local needs, unlike with perhaps housing and other forms of employment development.
The current failings of the NSIP process, save in the case of strategic rail freight.
Other calls on space, by way of for instance data centres and dark kitchens, reducing that which is available for freight and logistics.
The benefits of clustered development, several facilities in one location, in terms of employment, public transport and power.
The challenges in making the case to local planning authorities for the associated facilities required, for instance in some locations a higher than usual level of car parking to allow for occupiers with workers on night shifts and for the overnight re-charging of electric vehicles (in the case of operators who traditionally may have expected staff to store their petrol or diesel vehicles at their homes overnight).
There was much talk of the challenge of securing sufficient power, by way of connections to the national grid and how critical this has become, with many operators already making the move to all electric fleets, and with of course the extent of roof PVs.
The discussion became topical when the prime minister was bounced by leaks into making his speech on net zero the next day (20 September 2023).
I had come out of that roundtable session wholly enthused by the degree to which the corporate participants were so advanced with their thinking on decarbonisation and net zero. To listen the next day to Rishi Sunak was like going back in time (for some of us it probably triggered memories of the scrapping of the code for sustainable homes at a time when the house building industry was well on the way to delivering on what was being required – these sorts of changes to previously announced regulatory changes are debilitating to business in a way that governments do not seem able to grasp). Maybe I’ll leave further commentary on that particular statement to another place, save for highlighting one positive passage from that speech:
“Right now, it can take fourteen years to build new grid infrastructure.
There are enough projects waiting to be connected to generate over half of our future electricity needs.
So, I can announce today that the Chancellor and Energy Security Secretary will shortly bring forward comprehensive new reforms to energy infrastructure.
We’ll set out the UK’s first ever spatial plan for that infrastructure to give industry certainty and every community a say.
We’ll speed up planning for the most nationally significant projects.
And we’ll end the first-come-first-served approach to grid connections by raising the bar to enter the queue and make sure those ready first, will connect first.”
Spot-on. Now let’s make all that happen. Because it is all about the actual logistics.
Simon Ricketts, 23 September 2023
Personal views, et cetera
Extract from cover of BPF/Savills Logic of Logistics document
“I’m not sure that anyone can blame the EU, or lawyers, or local authorities, or developers, but no doubt they will. Rather, the problem arises from the apparent lack of adequate measures to ensure that, by virtue of its nitrate content, sewage generated as a result of new development does not harm the integrity of coastal waters protected as special areas of conservation and special protection areas under the Habitats and Birds Directives. Nitrate enrichment causes green algae, harmful to protected habitats and birds, through a process known as eutrophication. The chickens … are coming home to roost following a lack of priority for too long on the need by the Government and water companies to ensure that we have adequately funded and operated waste water treatment processes”
Of course the issue subsequently spread in terms of geography and by way of concerns as to phosphates as well as nitrates, hence references now to “nutrients”. (There are also related situations in relation to water neutrality in Sussex and in relation to recreational pressures on particular SACs – see my 9 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water – and in relation to nitrogen deposition on protected areas caused by traffic, eg see my 8 April 2017 blog post Heffalump Traps: The Ashdown Forest Cases – but the rest of this post focuses on nutrients).
This Government failed for far too long to grasp the nettle and now, when it has, it has been badly stung. Surprise surprise.
My 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment set out the way in which the Government belatedly looked to neutralise the nutrient neutrality problem for housebuilders and others who are stuck unless and until acceptable strategic or bespoke mitigation solutions are in place, by way of an amendment to the Levelling up and Regeneration Bill. The proposal was to take to remove nutrient pollution, by way of urban waste water, out of the ambit of the “harm to protected sites” integrity test. Subtle it wasn’t.
The Lords report stage debate on what became Amendment 247YYA took place on 13 September 2013. We all know what happened: the amendment was rejected 192 – 161.
As I set out in my 29 August 2023 blog post on the day the amendment was published, on balance I supported it – the need for a solution now is almost overwhelming – but I identified some questions to which the Government needed to be ready with answers.
The brutal reality is that their answers weren’t good enough, particularly on the key question – whether this amounted to a regression from current environmental standards. The day after the amendment was published, the Office Of Environmental Protection sent the Government a lettermaking clear its expert view that the proposal would indeed amount to regression. Nature conservation bodies rose up as one notwithstanding Therese Coffey’s response (31 August 2023)
This may be a Government that still on paper retains a majority but boy it is on the ropes. The media and public opinion joyfully conflated the nutrient neutrality issue with its justified disgust as to the poor performance of water companies in allowing the discharge of untreated sewage to rivers and coastal waters (and the failure of the Government to hold those companies properly to account). I set out in my 9 September 2023 blog post LURB Lords Latest the kicking that the Government received on the proposal in the Commons on 5 September.
As at 5 September Labour appeared to be sitting on the fence as to whether it would support the proposal but once they came out against it on 12 September 2023 (proposing an alternative amendment which was subsequently withdrawn during the debate without a vote) I would suggest that the writing was on the wall. As a sign perhaps of the Government’s desperation, DLUHC published a late lobbying document in the form of the nutrient neutrality announcement: explanatory paper (11 September 2023).
The Government amendment was rejected 192 votes to 161. And that folks is that. Procedurally it cannot be reintroduced into the Bill when it returns to the Commons. Nor in my view is there time for a fresh Bill.
What lessons to draw?
The Government moved far too slowly. Clive Betts nailed in it the 5 September 2023 debate: “This is hardly a new problem, is it? The Court decision was in 2018, yet last year we had the levelling-up Bill, which was really a planning Bill with a bit of levelling up added on—no mention of the issue there. In December we had major consultations on changes to the national planning policy framework—no mention of the issue there. The Committee wrote to the Minister and asked how many more consultations on planning issues there would be this year. We were given nine of them—no mention of the issue there. If it is such a serious issue, why has it taken the Government so long to act? It looks like the Government are making it up as they go along. This is a panicked response from the Government to the collapsing numbers of housing starts which the Minister simply wants to do something—anything—about.”
As a result of moving too slowly, it brought forward a proposal which had not been tested by way of any consultation whatsoever. Nor plainly had it been the subject of any cross-party agreement. Nor it seems had the Office for Environmental Protection been asked to advise ahead of the amendment being tabled, nor indeed Natural England. Indeed Natural England have not made any public statement in support of the proposal! Isn’t this all politics 101?
There was no clear narrative that explained the precise nature of the eutrophication issue so as to separate it from other justified concerns over water quality.
What now should happen?
Plainly the Government should re-double its efforts to work with affected authorities and with the water industry to introduce strategic measures to reduce nutrient deposition into watercourses which are protected as SACs and SPAs.
Plainly it should be working with Natural England to ensure that Natural England is in a position where its advice to authorities can be that, due to its confidence that these reductions will take place within the required timescale, there will not be an adverse effect on the integrity of the relevant SPA/SAC as a result of the particular proposal. With that assurance, and perhaps with guidance that any effects arise largely from occupation rather than construction and that therefore there is a role for planning conditions which at least allow developers to get on with construction if they are prepared to take the risk that reductions will take place in time for occupation, there is no need whatsoever for legislation.
Other neutrality issues should receive equivalent focus. It’s not all about nutrients.
Why don’t I finish with a controversial idea? If, in the face of expert advice to the contrary, planning applications are still held up, why doesn’t the Secretary of State call in the relevant application, in which case he becomes the competent authority in place of the local planning authority when it comes to determining whether there is an adverse effect on the integrity of the relevant SPA/SAC?
This coming week’s Lords Built Environment Committee report on the impact of environmental regulations on development will make interesting reading. We haven’t really even started to talk about environmental outcomes reports…
SIMONICITY 