(Rights Of) Light Relief: Section 203

Section 237 must be one of the best known sections of the Town and Country Planning Act 1990, beloved of planning lawyers – as for once we can be useful to our property colleagues.
Section 237 of course ensures, after an appropriate amount of detailed lawyering, that development can proceed without risk of injunctions from those whose easements (eg rights of light) or other rights (eg the benefit of restrictive covenants) may be affected. Where a local planning authority acquires an interest in land for planning purposes, or, where it already holds the interest, “appropriates” it for those purposes, interference with those interests or rights gives rise only to compensation rather than any risk of an injunction.

Although perhaps no surprise given the fact that the procedure is more than 50 years old, dating back to at least the Town and Country Planning Act 1962, it is very light in terms of process. Despite its effect being the removal of third parties’ private law entitlement to injunct against infringement of their rights, there is:

– no express requirement to consult with or even notify those potentially affected

– no statutory register to check where it has been used (see eg the ICO’s decision following a refusal in 2015 by Westminster City Council to provide information as to the occasions in which it had used section 237)

– no right on the part of those affected to object or have their grievances considered by an independent body, even though, because compensation is assessed on the basis of dimunition of value of their interest as a result of the interference (which will usually be less than the level of damages or settlement payout they could have secured in lieu of an injunction) the financial implications can be significant.

The power is useful in conjunction with use of an authority’s compulsory purchase powers, to ensure that, once land for development has been compulsorily acquired, problems will not arise through third party rights over the land acquired. However, nowadays the power is often used by authorities who are not looking to acquire land in their own right but rather looking to de-risk a development, hand in hand with a developer’s negotiations with those whose rights of light and other rights and easements may be affected – the approach of the courts to rights of light infringements still being difficult to predict (eg recently the Court of Appeal in Ottercroft Limited v Scandia Care Limited and Rahimian). The authority will proceed on the basis of an agreement by the developer to underwrite the authority’s compensation liability and (where the authority does not already have a legal interest in the development site) arrangements for the authority to acquire a freehold or leasehold interest in the development site – usually for a limited period of time and structured to minimise unnecessary risks and SDLT liability, prior to the interference occurs. 

Most recently the Corporation of London’s April 2016 decision to use the power to assist the development of 22 Bishopsgate attracted much publicity, possibly due to the nature of the scheme, which will become the City’s tallest building, rather than anything unusual about the use of section 237. 


Since 13 July 2016 the section 237 mechanism has been replaced by the similar (but slightly different!) power in Section 203 of the Housing and Planning Act 2016. 

The main changes between section 237 and section 203 are that:

• section 203 can be utilised not just by local planning authorities but other bodies with compulsory purchase powers, including statutory undertakers;

• in order to rely on the power, the authority must show that it “could acquire the land compulsorily” for the purposes of carrying out the development;

• there is an express exclusion in relation to easements or rights enjoyed by the National Trust;

• the new section expressly limits the power to situations where the development that creates the interference is related to the purposes for which the land was acquired or appropriated (a gloss upon section 237 that had been established by Midtown Limited v City of London Real Property Company Limited ). 

It is odd that once the decision was taken to update the section 237 procedure, more was not done to resolve the uncertainties that surround its operation, particularly given that by definition its use is usually contentious, being designed to affect the relative negotiating strength of potential litigants. The uncertainties are well described in a 2011 paper by Neil Cameron QC. 

The “could the authority acquire the land compulsorily?” test in section 203 is bound to lead to litigation. It was an open question under section 237 as to whether, before using acquiring or appropriating, the authority had to meet the same public need tests as would need to be satisfied were it to compulsorily acquire the land and as to whether consultation and negotiation was first required with those whose rights were to be affected. The main judicial authority for that position is a first instance ruling by McCullough J in R v Leeds City Council ex p Leeds Industrial Co-operative Society Limited, 1997. That, and the enactment of the Human Rights Act 1998, has led to additional caution as to the steps to be taken before invoking the procedure, including:

– identifying those likely to be affected

– seeking to resolve matters by negotiation, potentially on the basis of a more open discussion that one based solely on diminution in value as the basis of any settlement

– consideration by the authority of whether there is a compelling case in the public interest for use of the power and whether the tests in section 226 (compulsory purchase of land for planning purposes) are made out

– ensuring that there is the authority gives reasonable publicity to its decision to rely on the power (so as reduce the risk of a claim for judicial review of the decision being allowed out of time). 

Care is also needed in determining the structure for granting the authority an appropriate interest, so as to ensure that there can be no complaint about state aid or disposal of land at an undervalue (when the authority is called upon to relinquish its interest). 

The gnomic drafting of section 203 will continue the debate as to just how much needs to be done in order for the procedure to be legally effective. 

Simon Ricketts 26.8.16

Personal views, et cetera

Section 106 Disagreements

If CIL is to beat a retreat in relation to major developments as rumoured (June 2016 blog post  – although we’ll now need to wait for Parliament to resume in the Autumn before we learn any more of the CIL working group’s thinking) it’s more important than ever that the section 106 process works as well as it can. Used well, it is a powerful and effective mechanism and there is no need at all for negotiations to become protracted.
Unfortunately the Government continues to snatch at the issues. Section 106 agreements come in all shapes and sizes, from the simplest agreement to secure a specific contribution tocomplex agreements in connection with urban extensions and large mixed use projects, amounting to public/private sector agreements to govern the delivery, over decades hand in hand with development phases, of many hundreds of millions of pounds of social and physical infrastructure – and where issues such as the appropriate ring-fencing of obligations to appropriate parts of the site, enforcement protocols, reasonable future-proofing, interaction with CIL, viability review mechanisms and long-term maintenance arrangements can come to the fore in a variety of permutations.  
Legislative changes

Regulations 122 and 123 of the CIL Regulations 2010 have set trip hazards for LPAs and developers: section 106 agreements that do not comply with those regulations which are relied upon by LPAs in granting planning permission render the LPA’s decision liable to judicial review by third parties. 

Regulation 122 placed in statutory form the previous policy test that a planning obligation must be necessary to make the development acceptable in planning terms, directly related to the development and fairly and reasonably related in scale and kind to the development. Examples of Regulation 122 leading to permissions being quashed include Borough of Telford and Wrekin v Secretary of State  (Court of Appeal, 2 April 2014), Oxfordshire County Council v Secretary of State  (Lang J, 3 February 2015 – monitoring obligations) and R (Mid-Counties Co-operative Limited v Forest of Dean DC  (Singh J, 6 April 2015). 

Regulation 123(2) bites against planning obligations in relation to the funding or provision of infrastructure on the LPA’s Regulation 123 list. Regulation 123(3) introduced the “pooling” restriction, where five or more planning obligations have been entered into within an LPA’s area since 6 April 2010 that provide for contributions to the same infrastructure project or type of infrastructure.

It is often difficult to get to the bottom of whether these restrictions would be, or have been, breached as well as how “infrastructure project” or “type of infrastructure” is to be interpreted. It is difficult enough negotiating a satisfactory mechanism to overcome legitimate planning concerns without having to guard against the risk of a judicial review based on alleged non-compliance with these broadly stated requirements. 

These are not the only trip hazards of course – for example there is the often-overlooked requirement in Article 40(3)(b) of the Development Management Procedure Order 2015 for the LPA to put “proposed” planning obligations on the planning register (although not every travelling draft amounts to a planning obligation that is “proposed” eg see R (Police and Crime Commissioner for Leicestershire) v Blaby District Council  (Foskett J, 27 May 2014)). 

Further constraints are still to come, via section 5 of the Housing and Planning Act 2016 (the “starter homes requirement” to be delivered in a specified form by way of section 106 agreement) and via section 159 (which enables the Secretary of State to render unenforceable specified planning obligations in relation to affordable housing). Following the Government’s victory in Secretary of State v West Berkshire Council  (Court of Appeal, 11 May 2016) the Planning Practice Guidance now again has the exemption introduced in 2014 for developments of 10 units or fewer and developments with less than 1,000 square metres of floor space from the requirement to contribute towards affordable housing.

We also now have (albeit awaiting draft regulations) the dispute resolution mechanism introduced by section 158 and Schedule 13 of the Housing and Planning Act 2016. 

The explanatory notes to the Act explain the mechanism as follows:

Appointment of a person to help resolve disputes

This Schedule requires the Secretary of State to appoint someone to resolve issues that are holding up the completion of planning obligations. 

The duty to make an appointment arises where certain conditions are met. There must be an existing planning application. The local planning authority must be likely to grant planning permission if satisfactory planning obligations are entered into. There must usually be a request from the local planning authority or from the applicant. 

The Secretary of State can also make regulations setting out:

who, other than the local planning authority and applicant, could make a request for the appointment of a person;

the timing and form of requests;

that a person can be appointed if outstanding issues have not been resolved within set timeframes (regardless of whether there is a request); 

further detail about appointments, including about when a request cannot be made and about when a request could be refused; 

what qualifications or experience the appointed person must have; and

any fees payable.

There are temporary restrictions on the steps that can be taken in relation to the application until the dispute resolution process concludes.

The appointed person 

The local planning authority and the applicant must co-operate with the appointed person and comply with any reasonable requests. Regulations can also enable the appointed person to award costs if one of those parties fails to comply or behaves unreasonably.

The appointed person must produce a report that sets out:

the unresolved issues and the steps taken to resolve them; and

the terms agreed, or where the terms have not been agreed, recommendations as to what terms would be appropriate.

The appointed person must take into account any template or model terms published by the Secretary of State. Regulations can also set out other details about what the appointed person must and must not take account of.

The local planning authority must publish the report in line with any requirements set out in regulations. Regulations may also provide a process for making revisions to a report.

An appointed person may be appointed to consider two or more planning applications at the same time if the same or similar issues arise under them. In such circumstances a single report may be produced.

After the appointed person’s report

After the appointed person issues a report, a local planning authority must comply with the obligations in this Schedule.

Where planning obligations are entered into in line with the report, then the local planning authority must not refuse permission for reasons relating to the appropriateness of the planning obligations.

The parties may agree different terms, but they will only have a limited period to do so, which will be set out in regulations.

Where no obligations are entered into within a set period, the application must be refused. This is to ensure that the matters come to a conclusion quickly.

Regulations can also set out restrictions on the local planning authority’s ability to ask for additional obligations at this time. Any such restrictions would be designed to ensure that the report is given proper effect by the local planning authority. Regulations can also set out:

periods for determining planning applications after a report is issued; 

circumstances or cases where the consequences in this Schedule don’t apply; and

any further steps required to be taken by the appointed person, the local planning authority or the applicant in connection with the report. 

Where an appeal is lodged, the person determining the appeal must have regard to the report but is not bound by it.”

Will this complicated process be much used or lead to quicker, better, negotiations? My reading of a number of the responses to its February 2015 technical consultation  was that it had less than whole-hearted support from even the private sector. You may remember that due to the impending General Election we then had the Government’s response  in record time the following month, with its proposed way forward in section 4.

In reality, an impasse in section 106 agreement negotiations is rarely down to one defined issue capable of resolution but can relate to a whole host of inter-linking factors, potentially involving parties beyond the LPA and applicant for example other authorities (county and district not seeing eye to eye on “county” issues is a growing concern), land owners and/or funders. 

Other legislative changes come and go, for example the time-limited section 106BA ability (until 30 April 2016) to apply to amend affordable housing provisions in section 106 agreements where necessary to render development viable, introduced in the Growth and Infrastructure Act 2013, announced in the Government’s 2015 Autumn Statement as to be extended and then abruptly left to expire.

Policy changes

The NPPF has only brief references to the section 106 agreement process (with nothing on timescales for their completion):

“203. Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition.

204. Planning obligations should only be sought where they meet all of the following tests:

● necessary to make the development acceptable in planning terms;

● directly related to the development; and

● fairly and reasonably related in scale and kind to the development.

205. Where obligations are being sought or revised, local planning authorities should take account of changes in market conditions over time and, wherever appropriate, be sufficiently flexible to prevent planned development being stalled. “
At the same time as the March 2015 Government technical consultation response we had a very minor beefing up of the planning obligations section of the Planning Practice Guidance  :

“When should discussions on planning obligations take place?

“Discussions about planning obligations should take place as early as possible in the planning process, including at the pre-application stage. This will prevent delays in finalising those planning applications which are granted subject to the completion of planning obligation agreements.

Can planning obligations or heads of terms be on a local list? [answer: information about proposed planning obligations should not normally be made a validation requirement].

Local planning authorities are encouraged to inform and involve all parties with an interest in the land and relevant infrastructure providers, including county councils where appropriate, at an early stage to prevent delays to the process.”

Practical steps

An updated version of the Law Society’s model form of section 106 agreement, endorsed by DCLG (but openly consulted upon first please) would be helpful. The current version dates from June 2010 (predating all of the law and policy referred to in this blog post!). LPAs and developers alike could be advised more strongly that its terms should not be departed from without good reason – there is still far too much reinventing of the wheel and inconsistency of approach between LPAs and indeed between individual lawyers. The reference to a template or model terms in the passage above is encouraging. We need to move away from a bespoke tailored approach towards the “off the peg” department wherever we can…
Particular complexities arise in relation to negotiating viability review mechanisms. Again greater standardisation (which first needs greater standardisation of the approach taken by valuers to viability appraisal for section 106 purposes) would reduce a huge amount of detailed drafting and negotiation. 

There can be a bottleneck when it comes to the LPA’s internal legal and other officer resources, often despite the fact that the applicant is willing to pay for the LPA to outsource its legal work (not that outsourcing is in any way a universal panacea and on a complicated scheme a range of officer input is required). Proper discussions on the section 106 agreement still usually start far too late, with the difficult issues not grappled with until the lawyers have been instructed and start probing as to what the heads of terms actually mean…

The Local Government Ombudsman could usefully take a less hands-off approach than at present to complaints about undue delay. Its present stance (illustrated by this September 2014 ruling )  appears to be that the applicant’s remedy is simply to appeal to the Planning Inspectorate on the basis of non-determination of the application within the statutory period. 

Most usefully however, we could all re-double our efforts to ensure that we only include within section 106 agreements that which is absolutely necessary. If something can be addressed by planning condition, use a condition! 

Simon Ricketts, 20.8.16

Personal views, et cetera

Back Yard Back Handers

The idea, set out in the prime minister’s announcement  in relation to the Shale Wealth Fund, of the planning system encompassing direct payouts to households affected by shale oil and gas proposals, is an eye-opener on various levels – particularly given the suggestions that this will not stop at shale.

I set out below some reasons why I believe it is a wrong move and/or will not work. 
However, the proposals don’t come entirely out of the blue. 
There has been a community engagement charter since June 2013 in relation to oil and gas from unconventional reservoirs  It includes commitments from the industry to:
“Provide benefits to local communities at the exploration/appraisal stage of £100,000 per well site where hydraulic fracturing takes place;

Provide a share of proceeds at production stage of 1% of revenues, allocated approximately 2/3rd to the local community and 1/3rd at the county level
Community benefit packages like this are not new. There is also a non-statutory process in relation to on-shore wind. Community Benefits From On Shore Wind Developments  published by DECC (as it then was) in October 2014, describes a voluntary protocol agreed by the on shore wind industry. It commits developers of onshore wind projects above 5 MW in England to provide a community benefit package to the value of at least £5000 per MW of installed capacity per year, index-linked for the operational lifetime of the project. There are equivalent schemes in Wales and Scotland. The guidance stresses that payments should not be taken into account by decision-makers in determining applications. There is much focus on identifying appropriate community bodies and working through how benefits can most be effectively used by the community, with no suggestion of the monies being able to be shared out for personal gain. 
With fracking, the potential move to individual payouts was flagged in January 2014. As part of announcements that local authorities would in 100% of business rates from fracking,  it was announced that the industry would further consult about its community benefits packages, “with options including direct cash payments to people living near the site, plus the setting up of local funds directly managed by local communities”. 
For an industry paralysed by opposition to its proposals for exploratory wells, let alone extraction, this is presumably a fairly desperate attempt to turn the tide of local opinion. But the implications of such a scheme would go way beyond energy policy. Again, extending such ideas to housing is not new. Then deputy prime minister Nick Clegg was reported in August 2013 as promoting the idea of payments for those affected by garden city proposals.
These are seven obvious concerns:
1. It won’t reduce the opposition
Objections are not necessarily limited to the immediate environs of the project. People have strongly held concerns about (in the case of fracking) the potential effects of shale oil and gas extraction on the environment and on climate change more generally. Those non-local objectors will not be “bought off” by any direct payment. 
Nor will local objectors, whose concerns are, it is to be assumed, strongly held and not necessarily swayed by cash. Indeed a December 2014 research report on public engagement with shale gas and oil commissioned by the previous Government would appear to support that view.  Chapter 5 addresses mixed reactions to community benefits packages: 
“The financial aspect of the package was met with discomfort for many, because it was seen to monetise the risk taken on by the community, and was thus seen as a bribe by some. The fact that money was offered was also seen to indicate the activity was extremely high risk and dangerous, as participants were unaware of money being exchanged in other situations. “

2. Contamination of the planning process

Regulation 122(2) of the CIL Regulations 2010 provides that
“A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—

(a)necessary to make the development acceptable in planning terms;

(b)directly related to the development; and

(c)fairly and reasonably related in scale and kind to the development.”

It is of course a fundamental principle of the UK planning system that planning permissions cannot be bought or sold. However, let’s face it, our system is already influenced by financial considerations. For example:

– the Localism Act 2011 amended section 70 of the Town and Country Planning Act 1990 so as to require decision-makers to take into account in their decisions “any local finance considerations, so far as material to the application”

– local authorities are rewarded by Government for allowing homes to be built, by way of the new homes bonus and the business rates system increasingly encourages authorities that go for growth. 
– a proportion of CIL receipts is payable to parish councils, with little restriction in practice on what the monies can be spent on.
There is nothing necessarily wrong in my view with these interventions. Monies are directed to democratic bodies acting in the public interest. But we should be planning for the long term, for future generations rather than those who happen currently to live beside a major proposal. 
3. This is not about compensation for impacts
The VOA reported in August 2014   that there is no evidence that shale oil and gas exploration will affect house prices. I assume their view has not changed. 
The compulsory purchase compensation system provides protection for those whose land interests are taken or where, even if no land is taken, there is reduction in land value due to the physical effects arising from the operation of development projects. The common law of nuisance provides additional protections. 
4. It will be complicated
Who draws the boundary lines that determine who qualifies? What distinctions are there between home owners and tenants? Will there be minimum residency requirements? What about second home owners? What about clawback if people move out of the area within a short period of time, having accepted the payment? How will it be treated for tax purposes? All in all a lot of detail to be resolved and even the. There will inevitably be those who feel that they have been unfairly excluded. 
5. Slippery slope
Why not every form of development? This legitimises dialogue on planning being about how much should be paid to individuals affected, not what is in the public interest.
6. Dissipation of funds
The on-shore wind protocol contains good examples of how community benefits can deliver worthwhile projects, in the public interest. This opportunity is wholly lost with individual payouts.  

7. Whatever happened to localism?

The most depressing aspect of the announcement is that it appears to be a recognition or hunch that, for all the promotion of, initially, the Big Society, from 2010 and then neighbourhood planning, with the structures created by the Localism Act 2011, what drives behaviour is not community but me, myself, I. In order to persuade us each to allow development to proceed, apparently monies have to change hands, directed not to our parish council or other community group but directly into our bank accounts. 
Tell me if I have this wrong…

Simon Ricketts 8.8.16
Personal views, et cetera
 

Heritage Law Update: What Goes Around Comes Around?

A brief update on what has been happening in heritage law over recent months. 
The section 66(1) & 72(1) tests in the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990

First, aptly, some old news. 

Section 66(1) requires decision-makers, in “considering whether to grant planning permission for development which affects a listed building or its setting” to “have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses”.

Section 72(1) requires decision-makers with respect to any buildings or other land in a conservation area to pay “special attention…to the desirability of preserving or enhancing the character of that area”.

The NPPF  has advice on heritage decision-making at paragraphs 132 to 135. 

Until the Court of Appeal’s welcome 3 December 2015 ruling in Mordue  we planning lawyers were getting in a right pickle. As a result of Sullivan LJ’s Court of Appeal judgment in Barnwell  and Lindblom J (as he then was) in Forge Field  the law appeared to be that (despite any reference to “harm” in the legislation itself and indeed the expression not being defined in the NPPF) decisions were liable to be quashed if the decision maker had not articulated that it had 

– considered whether substantial or less than substantial harm was likely to arise to a listed building or setting of a listed building or to the character of a conservation area

– in the event of any finding of harm, balanced any harm against any counterveiling planning benefits, giving “considerable importance and weight” to the finding of harm (caselaw relied on by the Court of Appeal in Barnwell)

– in the event of any finding of substantial harm, taken into account the NPPF advice that consent should be refused “unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss” or at least one of four specified criteria are met (para 133, NPPF).  

– in the event of any finding of less than substantial harm, given “considerable importance and weight” to that finding (a “strong presumption against planning permission being granted” (Lindblom J in Forge Field), giving greater weight to other considerations, weighing “the harm against the public benefits of the proposal, including securing its optimum viable use (para 134, NPPF).

All of this is still good advice but the risk of a decision being quashed simply because of inadequate incantation of all of these tests is now reduced. The Court of Appeal in Mordue helpfully restored some sanity (albeit with a point deducted for using the word “fasciculus”):

“Paragraph 134 of the NPPF appears as part of a fasciculus of paragraphs, set out above, which lay down an approach which corresponds with the duty in section 66(1). Generally, a decision-maker who works through those paragraphs in accordance with their terms will have complied with the section 66(1) duty. When an expert planning inspector refers to a paragraph within that grouping of provisions (as the Inspector referred to paragraph 134 of the NPPF in the Decision Letter in this case) then – absent some positive contrary indication in other parts of the text of his reasons – the appropriate inference is that he has taken properly into account all those provisions, not that he has forgotten about all the other paragraphs apart from the specific one he has mentioned.

Explaining away Barnwell, the Court of Appeal put it like this:
“Sullivan LJ’s comments….were made in the context of a decision letter which positively gave the impression that the inspector had not given the requisite considerable weight to the desirability of preserving the setting of the relevant listed buildings, where as a result it would have required a positive statement by the inspector referring to the proper test under section 66(1) to dispel that impression”.
In the wake of Mordue we have since had:

R (Blackpool Borough Council) v Secretary of State  9 May 2016, where Kerr J found on the facts that an inspector had failed to apply the NPPF tests in the case of proposed major works that the inspector concluded would cause “little harm” to the special architectural or historic interest in a listed synagogue, including there being, as in Barnwell, a series of signposts in the decision letter that led to the judge’s conclusion. 

Boden v East Staffordshire District Council  27 May 2016, where Coulson J found on the facts that errors in articulating the NOPF test (including the common one of describing harm as “minor” without explaining where that sits on the harm/substantial/less than substantial spectrum) did not vitiate the council’s decision. 

So we still need to be alert for signs that the right tests haven’t been applied but there is again room for common sense.

No 1 Poultry


Barnwell, Forge Field and Mordue all refer back in their discussion to Save Britain’s Heritage v Number 1 Poultry Limited [1991] 1 WLR 153, HL, the leading case on the standard of reasons to be expected where a planning decision is taken granting permission for development which has a detrimental impact upon listed buildings. The then Secretary of State had overturned an inspector and approved Peter Palumbo’s redevelopment scheme designed by James Stirling which entailed the demolition of eight grade II listed buildings (I remember them well, just across the street from the Cheapside branch of Our Price records). A challenge by Save Britain’s Heritage was rejected by the House of Lords: any inadequacies in the Secretary of State’s reasoning were not such as to substantially prejudice potential objectors in that they did not give rise to substantial doubt that the decision had been made on relevant grounds – a high hurdle for an objector to clear. 

The Stirling scheme was completed in 1997. Scroll forward to 2016 and the new owner of the building is wishing to make some changes to its lower levels. In response, Lord Palumbo, the Twentieth Century Society and others have been lobbying for the 1997 building to be listed. Historic England recommended a grade II* listing last year which was rejected by Secretary of State for Culture, Media and Sport John Whittingdale in December 2015, relying on the Government’s policy that buildings under thirty years old should normally only be listed if they are of “outstanding quality and under threat”. The Twentieth Century Society appealed and to everyone’s surprise Whittingdale indicated last month that the decision is to be reviewed, acknowledging that it may be appropriate to list a building which is under thirty years old if it is of special historic or architectural importance even if it does not meet the “outstanding quality and under threat” tests. The decision is now in the in-tray of his successor Karen Bradley. 

In the meantime, planning permission for amendments to the ground floor of the building was resolved to be approved in March by the Corporation of London. 

We await the Bradley’s decision, as no doubt do the owners of other high profile modern buildings. And, if the decision is not to list, giving five years’ automatic listing immunity, the failed challenge of the decision not to list Pimlico School, brought by its architect John Bancroft (2004 EWHC 1822), suggests the likely outcome of any judicial review. 

World Heritage Sites


UNESCO’s World Heritage Committee lists places of special cultural or physical significance. One of those is the Liverpool – Maritime Mercantile City World Heritage Site.

25 years after the No 1 Poultry case, Save Britain’s Heritage is of course alive and kicking. On 2 August 2016 the Court of Appeal in Save Britain’s Heritage v Liverpool City Council  rejected their challenge to planning permission for a scheme in Lime Street, Liverpool. Save argued that the Council had breached the World Heritage Committee’s operational guidelines  as well as the Government’s Planning Practice Guidance  which require a council to consult with DCMS and via DCMS with the World Heritage Committee in the case of any proposal which may affect the “outstanding universal heritage” of a world heritage site. Save’s position was that the duty did not just apply to proposals that may have an adverse effect, but proposals that may have any effect, negative, neutral or indeed positive. Lindblom LJ disagreed: the proper interpretation could only be “adverse effect”. 

This is of course not the only controversial issue facing the Council in relation to its world heritage site status. As is recorded in the judgment, in view of its “serious concern at the potential threat of the proposed development of Liverpool Waters on the Outstanding Universal Value of the property”, the huge scheme by Peel Holdings, the World Heritage Committee in 2012 decided  to inscribe the site on its List of World Heritage in Danger.

By way of international perspective on the focus that world heritage site status can bring to issues that go well beyond issues of architecture and built heritage a 25 July 2016 Eco-Business piece describes the impacts of climate change and fossil fuel emissions of sites such as the Great Barrier Reef and a 26 July 2016 article in the Straits Times  describes the pressures faced by China’s sites. 

Failure to consult

Finally, back to domestic law – the redevelopment of a disused bowling green in Bexhill-on-sea for a sheltered housing development. The Court of Appeal in R (Loader) v Rother District Council  28 July 2016 quashed the planning permission for the scheme, which would adversely the setting of listed buildings. The Victorian Society had objected to a previous scheme but were recorded as having been consulted and not objected to the scheme under challenge. The reality was that officers knew that their attempts to contact the Society had failed. The court held that the summary in the report of the Society’s position was seriously misleading: “In the context of the duty in section 66(1) of the Listed Buildings Act, the committee was misinformed on the consultation of a national amenity society, which had been an objector to a similar proposal, and whose views on this application the council had chosen to seek and might have made a difference to its decision”. 

So,
– successive waves of case law on the reasoning needed before allowing harm to be caused to a listed building or conservation area

– radical architects and brave developers, who then try to have their developments listed to prevent anyone else being radical or brave

– international but often powerless, principles of heritage protection versus the simple, practical protections (demonstrated by the Court of Appeal in Loader) of English administrative law…

Simon Ricketts

Personal views, et cetera

HS2: The Very Select Committee

The Parliamentary Hybrid Bill procedure will be used for Crossrail 2 and for the second phase of HS2 so it’s right that we look at the process is faring as the Bill for phase 1 of HS2 carries on through its House of Lords Select Committee stage. 
When compared to planning inquiries under the Town and Country Planning Act 1990 or Transport and Works Act 1992 and to the examination of NSIPs under the Planning Act 2008 it is a very strange beast, particularly in the breadth of discretion given to the Select Committees in each House that hear “petitions” (“objections” in real world language) in relation to aspects of the Bill (although not its principle) and the narrow rules as to locus standi (standing). 
The members of the Lords Select Committee were appointed on 5 May and the hearing started on 19 May. The Committee is chaired by Lord Walker of Gestingthorpe, who was a member of the Supreme Court until 2013. 
The Committee has made some far reaching decisions both in relation to locus standi and as to the breadth or otherwise of its role in hearing petitions that seek Additional Provisions, ie amendments to the Bill that may require for example additional powers to acquire land. 
Locus standi

Petitioners must demonstrate that they are directly and specially affected by provisions of the Bill. It is open to the promoter, in this case HS2 Ltd, to challenge a petitioner’s locus standi, in which case the Select Committee reaches its determination as to whether the objector should be heard. 

There is no right of appeal from the decision of the Committee on locus standi. 

Before the Commons Select Committee, HS2 Ltd only challenged 24 out of 1,918 petitions in relation to the deposited Bill (there were challenges later on in relation to petitions in relation to Additional Provisions). On Crossrail, there were no challenges at all. 

In the Commons Select Committee’s final report dated 22 February 2016 the Committee made some recommendations in relation to rights of audience:

“394. With the benefit of nearly two years’ experience, we believe that there should be a stricter approach to locus standi. Past convention has been that hybrid bill committees should make their own determinations on locus. (This is different from the practice in relation to private bills, where a separate committee, the Court of Referees, makes such decisions.) The current method could be retained, or replaced by a different mechanism. We believe that it is a priority that strong guidelines on acceptable locus should be set out before the establishment of the Committee and before petitioning starts.”

No doubt buoyed up by that statement, when the Bill entered the Lords, HS2 Ltd made no fewer than 414 locus standi challenges in relation to the 820 petitions lodged.

Standing orders 114 to 118 which govern locus standi are extremely general, have not been reviewed in the light of modern principles of public participation in decision making and are subject to interpretation by reference to decisions reached by previous Committees, albeit with each Committee having a wide discretion and a variety of political and personal backgrounds and influences.  

Locus standi hearings started on 7 June  with opening submissions by James Strachan QC for HS2 Ltd, drawing heavily on previous rulings, and urging a robust approach by the Committee. I had the misfortune to follow on immediately after James, for Conserve the Chilterns and Countryside. 

The first tranche of locus standi decisions was made on 13 June 2016  None of various campaign and amenity groups was successful in asserting locus standi save for HS2 Action Alliance and a group concerned by the proposals at Euston. 

The locus standi hearings carried on for a number of weeks, with similar rulings on 21 June and 28 June . Some interesting comments from 28 June:

“It is clear to us that there are many petitioners who find it difficult to accept the limited scope which parliamentary practice allows to the expression, ‘their property or interests are directly and specially affected by a hybrid Bill’. Other petitioners understand its limited scope but find it unacceptable and have said so in forthright terms. The point was made eloquently by Mrs Emma Davies of Coombe Avenue, Wendover, one of the youngest petitioners from whom we have heard. She said that the HS2 railway is a new world and that it calls for a new approach to parliamentary practice on Hybrid Bills. We agree with that view.

3. The present system began to evolve in a piecemeal way in the Victorian age when there were many more Private Bills, but far fewer petitioners, no motor vehicles and very much less regard for environmental and ecological concerns. A start has been made towards a new approach. Following the unprecedented period of two years for which this Bill occupied the House of Commons Select Committee, the Chairman of Committees of the two Houses has established a review of Hybrid Bill procedure. We hope that it will be radical and extend not only to the form in which the principles of locus standi are expressed but also to the substantive content of those principles.

4. This Select Committee may be the last to operate under the present system but this Committee has no power to change that system. That is a matter for Parliament as a whole after the review has been completed and its recommendations considered. We must, in the meantime, apply the existing rules. “
Again the hearings continued, with more rulings on 5 July which this time excluded various local councillors as well as a London Assembly member. 

“6. We heard three petitions, 279, 552 and 584, from small groups of councillors elected to represent different wards, the Camden Town with Primrose Hill ward, the Regent’s Park ward, and the Kilburn ward, respectively, within the London Borough of Camden. Camden is itself an unchallenged petitioner, but has, as noted in our first ruling, a degree of inhibition because of its different statutory functions and responsibilities. The councillors who addressed us on 28 June spoke eloquently about the social and economic deprivation of parts of their wards, and the linguistic and cultural difficulties that many of their residents encounter in trying to respond effectively to the Bill. 

7. We have no doubt that these councillors are conscientiously working as hard as they can in the interests of their residents, but there is an important point of principle that arises here. Their status as councillors is as elected members of a local government corporation, which, whether or not it has a cabinet system, can act only by properly passed resolutions and properly delegated authority. Individual councillors or groups of councillors acting without the authority of the council cannot claim the special preference accorded to local authorities. Mr Mould referred us to several petitions which raised the same concerns, including one, Connor and others, 391, which is focused on the Alexandra Road vent shaft. We uphold the challenge to these petitions. This does not of course prevent these dedicated councillors from continuing to assist their residents by advising them, by cooperating with other petitioners, and perhaps by giving evidence in support of other petitions. For similar reasons we also uphold the challenge to the petition of Mr Andrew Dismore, assembly member for Barnet and Camden.”

And still the locus standi hearings continued with eight MPs ruled as not having locus standi on 18 July 2016 .

“6. Mrs Gillan is the member for Chesham and Amersham, and the others (from north to south along the route) are Craig Tracey MP (North Warwickshire), the Rt Hon Caroline Spelman MP (Meriden), Jeremy Wright MP (Kenilworth and Southam), Andrea Leadsom MP (South Northamptonshire), the Rt Hon John Bercow MP (Buckingham), David Lidington MP (Aylesbury) and Nick Hurd MP (Ruislip, Northwood and Pinner).

 7. We conclude that neither parliamentary practice, nor standing orders, confers locus standi as of right on a Member of Parliament petitioning on behalf of his or her constituents, and we do not feel able to stretch the language of SO 118 so as to confer a discretionary locus standi

 …Our conclusion will be considered by the review of procedure on hybrid bills now being undertaken by officials of both houses at the joint request of the two Chairmen of Committees. It is most desirable that the position should be clarified so that there will in future be no doubt as to the position…

Mrs Gillan has been outstandingly energetic and committed for many years in her advice and assistance to opponents of the HS2 bill and its effect on residents in or near the Chilterns AONB. As a further mark of our respect we are prepared to hear her again, not as a petitioner, but to give us her reflections on the bill and generally on hybrid bill procedure, towards the end of our sittings.”

Is there anyone who isn’t concerned by this narrow approach – which had not been flagged at all by HS2 Limited or by Parliament before the deadline for petitioning? Imagine the outcry if an equivalent approach were taken by a planning inspector….

Additional Provisions

The position in relation to Additional Provisions has been similarly difficult. The House of Lords’ standing orders do not directly address the question of Additional Provisions in Hybrid, as opposed to Private, Bills. The Government has taken the position that the Committee has no remit to consider the question of whether there should be any Additional Provision without a specific instruction from the House. This is clearly a significant issue for those petiomers, who seek, for example additional tunnelling to provide additional environmental protection for their areas, two examples being the London Borough of Hillingdon in west London and various Buckinghamshire authorities and groups in the Chilterns AONB.
Legal submissions were made on the issue on 30 June . George Laurence QC appeared for London Borough of Hillingdon; Martin Kingston QC appeared for Buckinghamshire County Council, Chiltern District Council and Aylesbury Vale District Council. Tim Mould QC appeared for HS2 Ltd.

The Committee made its ruling on 7 July , rejecting the petitioners’ arguments. 

“16. We return to the realities of the situation. The changes sought by Hillingdon and the Chiltern councils could hardly be more momentous, in terms of their implications for cost, redesign work and delay. There are no economies of scale in long bored tunnels. On the contrary, the unit cost per kilometre of tunnel increases with the length, because of the need for extra vent shafts and intervention gaps, and above all because of the ever increasing cost of moving excavated spoil over longer and longer distances. In view of recent warnings from the National Audit Office and the financial fallout at the recent referendum, it seems in the highest degree unlikely that the House of Lords will see fit to give an instruction contrary to the settled practice for additional provision for either of these new tunnels. The degree of improbability would be reduced in the case of Colne Valley if the working group were to recommend a course which the promoter was willing to accept, although there would still be many difficulties. Additional provision for either tunnel would produce a blizzard of new petitions, as AP4 did before the House of Commons.”

Whilst of course it will be said that the petitioners did have the ability to raise their arguments before the Commons Committee, there is no Parliamentary principle that rules out arguments being made in one House which have already been made in the other House – that after all is one of the checks and balances of our Parliamentary system. It will also said by the petitioners that the Select Committee process, with its time constraints and without a forum used to assessing forensic arguments and technical evidence, is not built for determining disputes on issues such as costs assumptions and the economic value to be attributed to landscape.

And again a decision which on any conventional basis is unchallengeable under domestic legislation. 

The Committee returned to the issue on a statement on procedure on 20 July 2016  before rising until 6 September:
“In the light of our ruling on additional provisions given on Thursday 7 July, we wish to make it absolutely clear that, in the absence of an instruction from the House, we will not hear argument for measures which would require an additional provision, that is, measures which would amount to significant changes to the scheme. In preparing their cases, petitioners should be extremely mindful of our limited powers. They will be squandering their time if they choose to present proposals which would require an additional provision, just as they will if they present proposals which go against the principle of the Bill. Instead, they would be wise to focus on issues and solutions over which the Committee does have power to intervene.

3. The Committee also wishes to re-emphasise the merits of succinct and cogent presentations from petitioners and the desirability of petitioners grouping together to present a single case. Groups of petitioners from the same area are encouraged to appoint a lead petitioner to outline their case, with other petitioners from the group adding local detail where appropriate, instead of repeating the case. It is our clear view that there is no relationship between repetition and persuasiveness. “

This is a Committee with its destination in sight. 

A review of Hybrid Bill procedures is underway. It is important that we get the balance right between speed and justice.
Simon Ricketts 30.7.16
Personal views, et cetera

Sequential Test: Still Testing

The  “town centres first” sequential test in paragraph 24 of the NPPF still leads to much uncertainty as to its practical application. This post briefly summarises (largely just by cutting and pasting the relevant passages) the recent Warners and Aldergate court rulings and the Secretary of State’s Exeter decision letter, all from the last month alone.

But first, the paragraph:

“Local planning authorities should apply a sequential test to planning applications for main town centre uses that are not in an existing centre and are not in accordance with an up-to-date Local Plan. They should require applications for main town centre uses to be located in town centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered. When considering edge of centre and out of centre proposals, preference should be given to accessible sites that are well connected to the town centre. Applicants and local planning authorities should demonstrate exibility on issues such as format and scale

A little, but not much more, guidance is set out in the NPPG:

“It is for the applicant to demonstrate compliance with the sequential test (and failure to undertake a sequential assessment could in itself constitute a reason for refusing permission). Wherever possible, the local planning authority should support the applicant in undertaking the sequential test, including sharing any relevant information. The application of the test should be proportionate and appropriate for the given proposal. Where appropriate, the potential suitability of alternative sites should be discussed between the developer and local planning authority at the earliest opportunity.The checklist below sets out the considerations that should be taken into account in determining whether a proposal complies with the sequential test:

  • with due regard to the requirement to demonstrate flexibility, has the suitability of more central sites to accommodate the proposal been considered? Where the proposal would be located in an edge of centre or out of centre location, preference should be given to accessible sites that are well connected to the town centre. Any associated reasoning should be set out clearly.
  • is there scope for flexibility in the format and/or scale of the proposal? It is not necessary to demonstrate that a potential town centre or edge of centre site can accommodate precisely the scale and form of development being proposed, but rather to consider what contribution more central sites are able to make individually to accommodate the proposal.
  • if there are no suitable sequentially preferable locations, the sequential test is passed.”

This replaced more detailed practice guidance  which was withdrawn on 7 March 2014.

Warners Retail (Moreton) Ltd v Cotswold District Council & Ors [2016] EWCA Civ 606 (24 June 2016)

The Court of Appeal rejected a claim for judicial review brought by the owner of a Budgens store in Moreton-in-Marsh, seeking to quash a planning permission granted for an out of town food store. The arguments were around whether the applicant had been sufficiently flexible before rejecting as sequentially preferable an extension to the Budgens. (The permission was granted when the more detailed practice guidance was in place, hence references in the passages below).

Lindblom LJ:

“Under paragraph 24 of the NPPF both applicants and local planning authorities are expected to “demonstrate flexibility on issues such as format and scale”. What bounds can reasonably be set on an applicant’s preference and intentions as to “format and scale” in any individual case will always, and necessarily, depend on the facts and circumstances of that particular case. The policy in paragraph 24 of the NPPF should not be seen as prescriptive in this respect. It plainly is not.

Flexibility was also called for under the practice guidance, in somewhat more elaborate terms. It is very clear from paragraphs 6.42 and 6.45 that the identification of a relevant “need” or “need/demand” for the purposes of the sequential approach was not intended to be merely a self-serving exercise on the part of the developer himself. As paragraph 6.45 made plain, sites were not to be rejected on the strength of the “self imposed requirements or preferences of a single operator …”. Otherwise, the sequential approach would likely become a merely self-fulfilling activity, divorced from the public interest. It is also clear, however, that the authors of the practice guidance regarded the developer’s own intentions as generally having some bearing on the application of the sequential test. One sees this, for example, in paragraph 6.37 – in the reference to “the need or demand which the proposal is intended to meet”; in paragraph 6.42 – in the concept of “what aspect(s) of the need are intended to be met by the site(s)”, the recognition that a more central site does not have to be able to “accommodate precisely the scale and form of development being proposed”, and the need to consider what contribution such a site might make to “meeting the same requirements”; in paragraph 6.45 – in the reference to the “need/demand [the applicant’s] proposal is intended to serve”; and also in paragraph 6.46 – in the reference to “the scale/form of town centre uses proposed …” (my emphasis).

The only site said to have been a sequentially preferable alternative to Minton’s is the site of the Budgens store. It is not suggested that that site could have accommodated an additional food store of the kind assumed by Minton for the purposes of the sequential test, even if the permitted extension to the Budgens store were not built. In essence, Mr Warren’s argument was that the members should have asked themselves, but did not, whether the extended Budgens store could meet the identified need, and, if the answer was that it could, should have found that Minton’s proposal for an additional food store must fail the sequential test because there was no need for it. 

In my view that argument is untenable. It does not reflect the national planning policy and guidance bearing upon the council’s decision on the Minton proposal. In effect, it seeks to restore to national planning policy for retail development a test of need that has not been there since PPS4 replaced PPS6 in December 2009. That, of course, is not possible. Minton’s proposal did not have to be justified by a demonstration of need.

One of the grounds for the challenge was that the officer had wrongly treated the Supreme Court’s ruling in the Tesco v Dundee City Council  case on suitability as directly applicable to the NPPF notwithstanding differences in the language of the guidance north and south of the border.

“I think one must be careful here. The Government’s policy for the sequential approach in paragraph 24 of the NPPF and the practice guidance are not in all respects the same as the NPPG8 and development plan policies construed by the Supreme Court in Tesco v Dundee City Council. They are similar in broad intent, but they are not in identical terms. An obvious similarity, though the language is different, lies in the concept of “flexibility”. The requirement in the final sentence of paragraph 24 of the NPPF for both applicants and local planning authorities to “demonstrate flexibility on issues such as format and scale”, as amplified by the advice in paragraphs 6.42 to 6.46 of the practice guidance, bears some similarity to the requirements for “flexibility and realism” on the part of both developers and retailers and planning authorities in paragraph 13 of NPPG8 and the requirement for planning authorities to be responsive to the needs for retailers in paragraph 14. That much is clear. But one should not simply read across the Supreme Court’s interpretation of the Scottish policies in Tesco v Dundee City Council as if it were the construction of the differently worded policy in paragraph 24 of the NPPF and the corresponding parts of the practice guidance. It is not.”

Aldergate Properties v Mansfield District Council and another [2016] EWHC 1670 (Admin) (8 July 2016)

The High Court quashed planning permission for a proposed out of town Aldi foodstore, following a challenge by the owner of a site in Mansfield town centre. The town centre had been ruled out by the applicant as a potential location, partly because there is already an Aldi store near to the centre and planning permission for another.

Ouseley J summarises parts of the planning committee report that, led to approval of the application, as follows:

“The Report continued, saying that as the application site was out of centre, a sequential assessment had to be carried out. The Report referred to the agreement that the exercise did not need to include sites covered by the catchment areas of the existing store on Nottingham Road or the recently permitted store at Leeming Lane South, to the south and north respectively of Mansfield town centre, because it was “unrealistic that Aldi would operate a store in close proximity to these existing and committed stores, and it would therefore be unreasonable to require a search for sites that would not make commercial sense for the operator”. 

The Report noted the centres and sites considered, and the reasons why they were not suitable. In order to be suitable for Aldi, sites needed to be at least 0.6 ha in size. The applicant was thought to have been fairly flexible in terms of more central sites, and in format and scale by looking for sites “which are slightly smaller than the application site”. Aldi’s reasoning for not being more flexible was based on Tesco Stores Limited v Dundee City Council, (dealt with below), set out in the Planning and Retail Statement with particular reference to paragraph 38 of the judgment, which focussed suitability on the developer’s proposals, not on some alternative scheme which might be suggested by the authority. The question, said the Report, was whether an alternative site was suitable for the development proposed, not whether the proposed development could be altered to fit an alternative site. The sequential test was thus passed and the principle of retail development acceptable. There was no separate discussion of impact.”

Ouseley J ruled that it was inappropriate to rule out the town centre as a potentially more suitable location, purely due to the identity of the proposed retailer:

“[…] In my judgment, “suitable” and “available” generally mean “suitable” and “available” for the broad type of development which is proposed in the application by approximate size, type, and range of goods. This incorporates the requirement for flexibility in [24] NPPF, and excludes, generally, the identity and personal or corporate attitudes of an individual retailer. The area and sites covered by the sequential test search should not vary from applicant to applicant according to their identity, but from application to application based on their content. Nothing in Tesco v Dundee City Council, properly understood, holds that the application of the sequential test depends on the individual corporate personality of the applicant or intended operator.

[…] NPPF [24] positively “requires” retail investment in the first place to locate in town centres rather than elsewhere. Its thrust is rather more emphatic than policies which advise developers and retailers to have regard to the circumstances of town centres, as in Tesco v Dundee [28]. It is the purpose of the planning system to control development, that is to permit, prevent, encourage, inhibit or limit and condition it, so that the individual private or commercial interest and the broader public interest meet in reconciliation however uneasily. NPPF [24] cannot therefore be interpreted as requiring “suitability” and “availability” simply to be judged from the retailer’s or developer’s perspective, with a degree of flexibility from the retailer, and responsiveness from the authority.

Third, and of critical importance here, still less can it be interpreted as envisaging that the requirement or preferences of an individual retailer’s trading style, commercial attitudes, site preferences, competitive preferences whether against itself or greater competition should dictate what sites are “suitable” or “available” subject only to a degree of flexibility. NPPF [23] and [24] are simply not couched in terms of an individual retailer’s corporate requirements or limitations. That would be the antithesis of planning for land uses and here, its default policies. It would take very clear language for such an odd result to be achieved.”

The applicant had accepted a condition that made the permission personal to Aldi. However, the judge held:

“This is not solved by the imposition at the end of the process of a condition restricting occupation to a particular retailer. That may be necessary for consistency of approach but it would reinforce the error of approach; instructively though it was opposed here by Aldi which had benefited from an approach unique to Aldi. The town centre remains where development is required; the out of centre development may inhibit or prevent a store coming forward in the town centre, and draw away town centre trade, trips, expenditure and vitality.

Fourth, there is a further reason why the identity of the applicant, as opposed to the sort of development it proposes, is not generally relevant to the sequential test. The sequential test in the NPPF is not just one of suitability; it covers availability: “only if suitable sites are not available, should out of centre sites be considered.” A town centre site may be owned by a retailer already, to use itself for retailing, who is not going to make it available to another retailer. It is plainly available for retailing, though only to one retailer. That does not mean that another retailer can thus satisfy the sequential test and so go straight to sites outside the town centre. “Available” cannot mean available to a particular retailer but must mean available for the type of retail use for which permission is sought.”

The judge had delayed handing down the judgment so as to be able to take into account the Court of Appeal’s ruling in Warners but found nothing in that to change the approach he was taking.
The Secretary of State’s decision letter dated 30 June 2016 in relation to the north of Honiton Road and west of Fitzroy Road, Exeter, site 

This was a recovered appeal in relation to a proposed district centre. The Secretary of State dismissed the appeal, partly because he agreed with his inspector that the more centrally located bus and coach station site was sequentially preferable and had been wrongly discarded.

The Secretary of State agreed that it was wrong to argue that the core strategy was “inconsistent with the NPPF, or out of date on the grounds that whether development is acceptable is now only to be determined by reference to the sequential and impact tests”. He agreed that the NPPF expects local plans to “fill the gaps” by meeting the criteria set out in paragraph 23 of the NPPF for policy making, including a network and hierarchy of centres. The core strategy defined local centres and the proposal would go beyond any reasonable of local centre for the purposes of the core strategy.

The inspector goes into an interesting analysis of the previous decision of the Secretary of State in Rushden Lakes dated 11 June 2014  distinguishing it on the basis that in that case the local plan’s settlement hierarchy policies were found to be out of date.

On the suitability of a potentially preferable site and whether sufficient flexibility had been shown, the Secretary of State says this:
“For the reasons set out at IR11.30-11.37, the Secretary of State agrees with the Inspector that given no more than reasonable flexibility, the Bus and Coach Station site would be suitable for the town centre uses proposed for the appeal site (IR11.37). The Secretary of State has taken into account the Inspector’s reasoning at IR11.38-11.40. He agrees that there is no rationale for concluding that the site must be on the open market to any developer, and that the new retail floorspace would be marketed to traders who would occupy it regardless of who developed or owned the scheme (IR11.39). He further agrees that the requirement for a bus station and a leisure outlet on another part of the Bus and Coach Station site does not mean that the area earmarked for retail development is not available (IR40). Overall he considers that the Bus and Coach Station site is available.”

The inspector:

11.32 Tesco v Dundee looked at how the policy should be interpreted including flexibility. As above, it found that the question of suitability does require judgement but also that the purpose of flexibility is not to require the application to be transformed into something significantly different. Here, the proposed retail elements could be accommodated without disaggregation but the configuration of floorspace would need to be different to take account of the relative size of adjacent properties (their scale) and the floorspace would most likely need to be concentrated nearest to the existing PSA for commercial reasons. This would be no more than showing reasonable flexibility. 

11.33 To insist on the same requirement for parking and access in a town centre, which has ample existing parking, service roads and excellent links to public transport, would be unreasonable. Drive-through restaurants do feature within the definition of a town centre and so, to be suitable, it must be possible for these to be accommodated. Nevertheless, as with general access requirements for servicing and other vehicular needs, it would be no more than showing reasonable flexibility to accept that existing streets and access arrangements could provide part of the drive element of such a proposal if not the restaurant area. Moreover, drive-through restaurants are not fixed elements of the proposals as they do not feature specifically in the description of development, would not be a requirement of the suggested conditions, and could easily be varied to another use. The scheme would also include a gym which would fall within the health and fitness centres part of the NPPF definition. However, the Council’s contribution to the PHL as a whole includes a leisure centre. It was not suggested that an operator who might occupy the gym proposed for the appeal site would not be interested in a City Centre location, and there are already other gyms in Exeter.

11.38 The NPPF and the PPG both refer to availability with regard to the sequential test but neither clarifies how this should be defined. The appellant argued that the BCS is not available since CEH and the Council have agreed on a way forward and are unlikely to allow other developers a look in. The purpose of retail policy in NPPF 23 is to promote competitive town centre environments and manage the growth of centres. The NPPF test should not be used to prevent development unless a sequentially preferable site could actually deliver the proposals. 

11.39 However, there is no sound basis for finding that the BCS site is not available to traders and no rationale for concluding that the site must be on the open market to any developer. Providing PHL goes ahead, the new retail floorspace would be marketed to traders who would occupy it regardless of who developed or owned the scheme. The need for flexibility in the Judgment in Tesco v Dundee refers to retailers as well as developers and this strengthens the conclusion that available means for the development proposed not for the landowner hoping to carry out the development. Although on the separate point of specific locational requirements, the PPG does state that land ownership does not provide a justification for excluding a site. 

11.40 In the absence of any clearer interpretation, the preference in NPPF 24 should refer to availability to traders. It follows that it doesn’t matter who develops the site so long as it can provide the proposed level of shop floorspace. As above, the requirement for a bus station and a leisure outlet on another part of the BCS site does not mean that the area earmarked for retail development is not available. On this point as well, the BCS would be sequentially preferable.

Simon Ricketts 23.7.16

Personal views, et cetera

What has our new Housing & Planning Minister said about planning?

What do we know about Gavin Barwell MP, our new housing and planning minister (and minister for London)? This is his official biography.
His own website is interesting, featuring a youtube video where he is objecting to a local Croydon housing proposal on green belt land.

I also carried out a quick search on the They Work For You website of his recent speeches in the Commons on planning issues. Some snippets:

16 March 2013 :

“In the 1980s, the previous Conservative Government made a mistake on out-of-town planning policy. In Croydon, there have been major developments along the Purley Way, which drew people away from the town centre.

[…]
The scheme will create thousands of jobs. One thing I hope the council will do as part of the planning permission is try to ensure that as many construction and subsequent retail jobs as possible go to local people. I hope that Westfield and Hammerson take control of parking provision so that we can have sensible parking prices. I am a great believer in public transport, and I want improved public transport access so that those who can come by public transport do. However, the reality is that when some people go shopping—particularly if they buy a lot—they want to take their car. If our parking policy penalises them for doing that, we will be shooting ourselves in the foot.”
I also want to make a point about mixed use. The development scheme is not just a retail transformation; it will provide hundreds of new homes and leisure opportunities. We want Croydon’s major town centre to be an active destination not just during shopping hours but pretty much around the clock.
The scheme will not just be good on its own terms, but catalyse other development around the town centre. A number of schemes have been consented, but they are not being developed, because of the current economic climate. The new scheme will clearly bring them closer to fruition.”
2 September 2012:

“I warmly welcome what the Secretary of State said about the green belt, town centres and the temporary waiver of unrealistic section 106 agreements. However, if we have done everything we can to remove developers’ excuses for not developing, why does it make sense to allow them to extend the duration of existing planning permissions?”
15 February 2011:

“Let me take the right hon. Gentleman back a couple of minutes. He made a point that I hope all members of the Committee recognise as important, about the tension between need and local wishes that the planning system has to manage. Studies on human behaviour show that if we want to convince people to do something, trying to compel them is not the most effective way to do it. Does he recognise that? Incentivising people is much more effective in getting people to move in the required direction. Does he not see that there is a fundamental flaw in our planning system, in that it tends to work through compulsion rather than incentives?”
20 January 2011:
“I want to pick up a comment made by Mr Whitaker on regional spatial strategies and the current planning system. He said that he does not accept that it is top-down and centrist. I find those remarks very difficult to square with the experience of the community that I represent.
I shall give the example of a place in my constituency, Shirley. Over the past 10 years, it has seen a whole series of back-land developments on the main road—townhouses and blocks of flats completely out of character with the properties that were there beforehand. For a number of years, the council approved those applications. The council was then changed, and it started to turn down such applications. It has found that the applications can be referred to the Planning Inspectorate in Bristol. Officials who do not know the area and never bother to come to look at it have overturned decisions made by the local council.
How do you justify that statement? If you are right that it is a bottom-up system at the moment, what have my constituents been doing wrong that they have ended up with a whole series of developments that they hate?”
18 November 2010:
“Most people are concerned not about race or skin colour, but about population growth, jobs and the pressure on local public services. Many of those issues have been addressed today so I shall keep my comments brief. On population growth, the latest projections from 2008, which are based on the assumption of net migration to this country of 180,000 people a year, predict that the population will increase to 71.6 million by 2033, an increase of 10.2 million people. Of those 10.2 million people, about 7 million will be accounted for by net migration.
My right hon. Friend referred to housing projections in Hertfordshire, and I am sure that every Member can tell a similar story. My local authority is a growth area under the London plan, but the plans for significant housing growth cause real concern. Bizarrely, very few people live in our town centre, so there is an opportunity to build significantly more housing there, but large parts of my constituency have suffered in recent years from overdevelopment, which has changed the character of residential areas. There has been lot of backbone development, with detached or semi-detached houses replaced by blocks of flats, and that has caused real concerns for constituents. Indeed, the pattern of net migration has driven much of that change.”
I am sure we all wish Mr Barwell well in such a vital role – and look forward to engaging on the issues.
Simon Ricketts 17.7.16
Personal views, et cetera