A tumultuous year ends. Authority after authority in the south east, or the Rest of the South East, as we used to call it before regional planning so as to exclude London, is pausing or going slow with its local plan, given the signals from Government that authorities will soon find it easier to decide not to plan to meet their local housing needs. (It’s not just in the south east I know but I desperately needed to make the Elvis Costello pun work).
In terms of policy, nothing yet has changed at all. But the excuses are already being found.
Planning Resource for instance reported on 19 December 2022 that:
Horsham District Council has delayed its cabinet meeting to consider its proposed Regulation 19 consultation draft plan from 15 December 2022.
Mole Valley District Council has paused preparation of its new local plan/
The Vale of White Horse and South Oxfordshire District Councils have announced an 11 month delay to the preparation of their emerging joint local plan
And this was before Michael Gove’s 22 December 2022 announcements as to proposed reforms to national planning policy that I blogged about that day (and which we will be discussing on clubhouse at 4 pm, 4 January – tune in to blow those cobwebs away! Join via this link – do RSVP in the link and get it in your diaries).
Someone please post some stats, I can’t immediately find them in my post-Christmas haze, but these delays have of course been building up over the year. Back on 2 September 2022 Planning Resource was reporting on the 19 authorities that have withdrawn or delayed local plans in the past year . Before that on 26 April 2022 Lichfields were reporting on 11 authorities that had either stalled, delayed or withdrawn their local plans. Go back even further to my 12 February 2022 blog post, Local Plan Breaking.
No doubt we will see over the course of 2023 how all this plays out in the light of the two successive waves of changes to the NPPF that we have now been told to expect.
It’s also been a good year for the bloggers and podcasters. Shout outs to Zack the Planorak, Nicola the Gooch, Sam 50 Shades Stafford, Raj Compulsory Reading Gupta and to my colleagues responsible for the Planning Law (With Chickens) podcasts (Victoria McKeegan, Nikita Sellers and Meeta Kaur). You all keep me on my toes and occasionally wondering what I have to add. But in any event thank you everyone for continuing to read and engage – sitting down every week for an hour or two to do these notes to self remains the only way I can hope to keep track for myself of what is happening and for people to find this occasionally useful or entertaining is always an unexpected bonus..
Looking back, these were the posts that pretty much wrote themselves in reaction to what was happening all around us: the neutralities issues, the implications of the Supreme Court’s ruling in Hillside, the bizarre happenings within that brief Truss premiership, the local plan making crisis and of course the Government’s planning reform agenda. In fact, at the foot of this post there is a table of month by month views of the blog since it started in June 2016. Views have been dependent not on any writing quality but on subject matter (oh, and the lockdowns certainly helped).
I’m sure there will be plenty of planning law to write about next year, all of it as yet unplanned.
Healthy new year all. And in the wise words of Elvis Costello: Get Happy.
There is much to take on board. By way of indication, the consultation document lists 58 questions. It’s 32 pages or so long.
But don’t panic!
Consultation doesn’t close until 3 March 2023. There is plenty of time for thinking to percolate and indeed to assist with that we have the special Planning Law Unplanned clubhouse discussion at 4pm on 4 January 2023 featuring various planners and planning lawyers. Join the event via this link – do RSVP in the link and get it in your diaries.
I am relieved that for once what we have been presented with is comprehensive and well explained. This is no longer a “prospectus” as to what the nature of the proposed changes but includes the actual proposed wording of the revised NPPF itself (this revision at least – another revision is already promised). The changes are by and large not a surprise, having been heavily trailed since Michael Gove resumed office. I urge you to scroll through the indicative mark-up of the NPPF – the changes are easy to spot, for instance:
watering down of the paragraph 11 (d) tilted balance and of the requirements on local planning authorities to maintain an adequate housing supply and meet housing delivery targets
watering down of the local plan “soundness” test
references to the standard method as only an “advisory starting point“
express references to the needs for retirement housing, housing with care and care homes
References to “beauty” and a weirdly specific passage extolling the virtues of mansard roofs
“Green Belt boundaries are not required to be reviewed and altered if this would be the only means of meeting the objectively assessed need for housing over the plan period“
Changes in relation to climate change and renewable energy
“The availability of agricultural land used for food production should be considered, alongside the other policies in this Framework, when deciding what sites are most appropriate for development“.
Important transitional arrangements in paragraph 225 and 226
But what is being consulted upon does not stop at the proposed changes to the NPPF but also covers various other longer term aspects of the reform agenda.
If one thing shines through the consultation document it is that re-construction of the system is going to be underway for some years. An indicative timeline:
Consultation closes: 3 March 2023
Government response to consultation and publication of revised NPPF: Spring 2023
Changes to take effect that are being consulted upon in the current document as to:
Increasing the emphasis on provision of social rented housing
More older people’s housing
More small sites for small builders
Greater emphasis on the role that community-led development can have in supporting the provision of more locally-led affordable homes
Consultation on proposed changes to the rest of the NPPF and on more detailed policy options and proposals for National Development Management Policies (supported by environmental assessments), once the Levelling-up and Regeneration Bill is passed through all its Parliamentary stages: from Spring 2023 (NB there is much already in the consultation document which helps in setting out more clearly than previously the intended scope of national development management policies, which will be in a separate document to the NPPF)
Three further measures to be introduced, via changes to the NPPF to encourage developers to build out “as soon as possible”:
“a) We will publish data on developers of sites over a certain size in cases where they fail to build out according to their commitments.
b) Developers will be required to explain how they propose to increase the diversity of housing tenures to maximise a development scheme’s absorption rate (which is the rate at which homes are sold or occupied).
c) The National Planning Policy Framework will highlight that delivery can be a material consideration in planning applications. This could mean that applications with trajectories that propose a slow delivery rate may be refused in certain circumstances.”
There will be “a separate consultation on proposals to introduce a financial penalty against developers who are building out too slowly”.
Changes to the soundness test will apply to local plans which have not reached pre-submission consultation stage within 3 months of the revised NPPF: summer 2023
Further updates to the NPPF: later in 2023
Whilst flexibility as to the use of the standard method will be in place from Spring 2023 as part of the revised NPPF, there will be a review of standard method for calculating local housing need, once 2021 census is published: 2024 (NB “It remains our intention to publish the 2022 Housing Delivery Test results. However, given our proposed changes and consultation on the workings of the Housing Delivery Test, we would like to receive views on whether the test’s consequences should follow from the publication of the 2022 Test or if they should be amended, suspended until the publication of the 2023 Housing Delivery Test, or frozen to reflect the 2021 Housing Delivery Test results while work continues on our proposals to improve it. We will take a decision on the approach to the Housing Delivery Test and the implementation of any the proposed changes in due course, once we have analysed consultation responses”).
Implementation of the LURB plan-making reforms: late 2024
Transitional arrangements will mean that for the purposes of decision-making, “where emerging local plans have been submitted for examination or where they have been subject to a Regulation 18 or 19 consultation which included both a policies map and proposed allocations towards meeting housing need, those authorities will benefit from a reduced housing land supply requirement. This will be a requirement to demonstrate a 4-year supply of land for housing, instead of the usual 5”: two year transitional period, so until Spring 2025
Deadline of 30 June 2025 for plan makers to “submit their local plans, neighbourhood plans, minerals and waste plans, and spatial development strategies for independent examination under the existing legal framework; this will mean that existing legal requirements and duties, for example the Duty to Cooperate, will still apply.
We are also proposing that all independent examinations of local plans, minerals and waste plans and spatial development strategies must be concluded, with plans adopted, by 31 December 2026. These plans will be examined under the current legislation.”
Latest date for any old-style local and minerals and waste plans to be adopted (or in the case of Strategic Development Strategies, published): April 2027
Latest date when LPAs must begin the new style plan-making process (if their previous plan was adopted on 31 December 2026): 31 December 2031
Of course these dates, all of them taken from or derived from the consultation document, could slip (surely not!) and priorities could move in an entirely different direction, but somehow I sense that this is a package of reforms which is more likely to stick. So let’s have a rest for a week or so after a ridiculous year, maybe tune in on 4 January, but in any event do some constructive thinking over the next couple of months ahead of that consultation deadline. It’s a serious set of proposals which deserves a serious response. Since I came off Twitter I think I may be getting a bit soft….
I mentioned in the blog post a letter which he had written to all MPs the previous day which had gone into more detail that the statement. I hadn’t included a link to the letter. It is here. What is even more interesting is that there is another letter, of the same date, written just to Conservative MPs. The link to that one is here.
The introduction to the letter to Conservative MPs makes the intended policy direction very clear. For instance:
“Whatever we do at a national level, politics is always local and there is no area that demonstrates this more than planning. Through reforms made by Conservative-led governments since 2010, we have a locally-led planning system – for instance, by scrapping policies like top-down regional targets that built nothing but resentment – and introducing neighbourhood planning. These reforms have delivered a record of which Conservatives can be proud. I also do not need to remind you that under the last Labour government, housebuilding reached its lowest rate since the 1920s.
But there is much more to do to ensure we can build enough of the right homes in the right places with the right infrastructure, and to ensure that local representatives can decide where – and where not – to place new development. As Conservatives, we recognise both the fundamental importance of home ownership and that we can only deliver the homes we need if we bring the communities we represent with us. These are the promises on which we stood in our manifesto and ones that I and the Prime Minister are determined to deliver.
I am therefore writing to set out the further changes I will be making to the planning system, alongside the Levelling Up and Regeneration Bill, which address many colleagues’ concerns. They will place local communities at the heart of the planning system.
As you know I share the views of many colleagues about the current system. That it does not provide the right homes in the right places, and at its worst risks imposing ever more stretching housing targets that are out of touch with reality – leading to developers taking advantage through planning by appeal and speculative development. Communities feel that they are under siege, and I am clear that this approach will never be right or sustainable if we want to build the homes that our communities want and need.”
This Government weaves around planning reform like Kylian Mbappe. First the 2020 white paper, then the u-turn after the Chesham and Amersham by-election, then the Kwarteng “growth growth growth” plan – and now placing house-building delivery firmly in the hands of “communities” – in reality, at root, existing home owners – with a weakened process for local plan examination:
“I will ensure that plans no longer have to be ‘justified’, meaning that there will be a lower bar for assessment, and authorities will no longer have to provide disproportionate amounts of evidence to argue their case.”
Is all of this just another feint, a shimmy past the Tory rebel MPs to ensure that planning reform can actually progress? Or genuine capitulation – genuflection to the election pamphlet needs of political colleagues? Zack Simons doesn’t mince his words in his 8 December 2022 blog post Notes on reform: the Government gives up – essential reading.
The matters to be consulted upon in the forthcoming prospectus are numerous. Steve Quartermain and I were counting them this week and ran out of fingers – the letters include commitments to consultation as to at least the following matters:
Changes to the method for calculating local housing need figures
Dropping the requirement for a 20% buffer to be added to housing land supply numbers for both plan making and decision taking
What should be within the scope of the new National Development Management Policies
Each new National Development Management Policy before it is brought forward
Detailed proposals for increases in planning fees
A New planning performance framework that will monitor local performance across a broader set of measures of planning service delivery, including planning enforcement
Further measures (i) allowing local planning authorities to refuse planning applications from developers who have built out slowly in the past and (ii) making sure that local authorities who permission land are not punished under the housing delivery test when it is developers who are not building
A new approach to accelerating the speed at which permissions are built out, specifically on a new financial penalty
How to address the issue of the planning system being “undermined by irresponsible developers and landowners who persistently ignore planning rules and fail to deliver their commitments to the community”.
Amending national policy to support development on small sites, particularly with respect to affordable housing
Further measures that would prioritise the use of brownfield land
Details of how a discretionary registration scheme for short term lets in England would be administered
Reviewing the Use Classes Order so that it “enables places such as Devon, Cornwall and the Lake District to better control changes of use to short term lets if they wish“.
There is a lot to take in here – both what is written and what is between the lines. To try to help make sense of the prospectus when it lands, there will be a special Planning Law Unplanned clubhouse discussion at 4pm on 4 January 2023 featuring various planners and planning lawyers, including myself, Zack, Steve and many more. Join the event via this link – do RSVP in the link and get it in your diaries.
A deal has been reached between the Government and those rebel MPs who had threatened to derail the Levelling-up and Regeneration Bill. And so we have Michael Gove’s written statement to the House of Commons today 6 December 2022, in the wake of a letter written to all MPs on 5 December 2022 and a 5 December 2022 press statement. Of course, when we talk about the Bill, that is short-hand for the reform package as a whole, including most crucially the proposed amendments to the National Planning Policy Framework.
Those proposed amendments are soon to be fleshed out in the National Planning Policy Framework prospectus, “which will be put out for consultation by Christmas” (i.e. by the time that the Commons rises on 20 December 2022). It is going to be thin gruel for those of us who believe that this country has a housing crisis and that part of the solution to that crisis is to build more homes, where they are most needed.
I’ll just summarise here what the written ministerial statement covers. The letter to MPs goes into further detail.
There will be an amended method for calculating local housing need, which will be “advisory”. “It will be up to local authorities, working with their communities, to determine how many homes can actually be built, taking into account what should be protected in each area – be that our precious Green Belt or national parks, the character of an area, or heritage assets. It will also be up to them to increase the proportion of affordable housing if they wish.”
Of course it is not currently mandatory that local authorities plan for the level of local housing need arrived at via the current standard method, but there is a heavy onus on authorities to justify departures.
Paragraph 35 of the current NPPF sets out the “soundness test”, including that plans are “positively prepared”, meaning that they are “providing a strategy which, as a minimum, seeks to meet the area’s objectively assessed needs; and is informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated where it is practical to do so and is consistent with achieving sustainable development.”
Paragraph 61 of the current NPPF says this:
“To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.”
It is plain that those circumstances are now to be widened, in ways which are more subjective, eg relying on perceived capacity constraints based on “the character of an area” (the letter to MPs gives the example of for instance “new blocks of high-rise flats which are entirely inappropriate in a low-rise neighbourhood” and talks of the need for “gentle densities”). It will be open season for authorities and/or local campaigners to press the case for lower numbers to be adopted and/or for the required proportion of affordable housing to be set at such a financially onerous level that in practice chokes off the prospect of development. The proposed abolition of the duty to cooperate and its replacement by an “alignment” mechanism yet to be articulated just increases the plain jeopardy here. Open question: how will the Government be able to hold to its 300,000 homes a year target if significant numbers of authorities adjust their numbers downwards? Another open question: how important is mitigating the housing crisis to the Government versus fending off internal rebellions and having constituency-friendly developer-phobic policies?
Five year housing land supply requirement:
“We will end the obligation on local authorities to maintain a rolling five-year supply of land for housing where their plans are up-to-date. Therefore for authorities with a local plan, or where authorities are benefitting from transitional arrangements, the presumption in favour of sustainable development and the ‘tilted balance’ will typically not apply in relation to issues affecting land supply.
I also want to consult on dropping the requirement for a 20% buffer to be added for both plan making and decision making – which otherwise effectively means that local authorities need to identify six years of supply rather than five. In addition, I want to recognise that some areas have historically overdelivered on housing – but they are not rewarded for this. My plan will therefore allow local planning authorities to take this into account when preparing a new local plan, lowering the number of houses they need to plan for.”
“…Where authorities are well-advanced in producing a new plan, but the constraints which I have outlined mean that the amount of land to be released needs to be reassessed, I will give those places a two year period to revise their plan against the changes we propose and to get it adopted. And while they are doing this, we will also make sure that these places are less at risk from speculative development, by reducing the amount of land which they need to show is available on a rolling basis (from the current five years to four).”
“I will increase community protections afforded by a neighbourhood plan against developer appeals – increasing those protections from two years to five years…”
Ensuring timely build out:
“I already have a significant package of measures in the Bill to ensure developers build out the developments for which they already have planning. I will consult on two further measures:
i) on allowing local planning authorities to refuse planning applications from developers who have built slowly in the past; and
ii) on making sure that local authorities who permission land are not punished under the housing delivery test when it is developers who are not building.
I will also consult on our new approach to accelerating the speed at which permissions are built out, specifically on a new financial penalty.”
Character of a developer:
“I have heard and seen examples of how the planning system is undermined by irresponsible developers and landowners who persistently ignore planning rules and fail to deliver their legal commitments to the community. I therefore propose to consult on the best way of addressing this issue, including looking at a similar approach to tackling the slow build out of permissions, where we will give local authorities the power to stop developers getting permissions.”
Brownfield first:
“I will consult to see what more we can do in national policy to support development on small sites particularly with respect to affordable housing and I will launch a review into identifying further measures that would prioritise the use of brownfield land. To help make the most of empty premises, including those above shops, I am reducing the period after which a council tax premium can be charged so that we can make the most of the space we already have. I will also provide further protection in national policy for our important agricultural land for food production, making it harder for developers to build on it.”
Tourist accommodation/short-term lets
“I intend to deliver a new tourist accommodation registration scheme as quickly as possible, working with DCMS, starting with a further short consultation on the exact design of the scheme. I will also consult on going further still and reviewing the Use Classes Order so that it enables places such as Devon, Cornwall, and the Lake District to control changes of use to short term lets if they wish.”
Since then the antagonism seems to have increased and areas of common ground seem to reduced. Planning and heritage processes are frequently just another battleground in this time of global and cultural division.
But I’m just going to pick the most recent item from this week’s news. It’s possible that politics played as much a role as planning in the decision on 1 December 2022 by the London Borough of Tower Hamlets’ Strategic Development Committee, against officers’ recommendations, to refuse planning permission for the redevelopment of Royal Mint Court, near the Tower of London, to establish a new Chinese Embassy (replacing its existing embassy on Portland Place), including “the refurbishment and restoration of the Johnson Smirke Building (Grade II listed), partial demolition, remodelling and refurbishment of Seaman’s Registry (Grade II listed), with alterations to the west elevation of the building, the retention, part demolition, alterations and extensions to Murray House and Dexter House, the erection of a standalone entrance pavilion building, alterations to the existing boundary wall and demolition of substation, associated public realm and landscaping, highway works, car and cycle parking and all ancillary and associated works.”
51 objections had been received, raising a range of planning and non-planning objections. One has a sense of non-planning issues swirling around from the officer’s report which, after summarising the various planning and heritage based objections received, sets out the “non-material considerations” raised by objectors as including:
“Concerned about the building becoming a secret police station
Concerned about the violent assault of protesters at the Manchester Chinese Consulate
Concerned about the actions of the Chinese government in relation to other countries and human rights record
All phone calls and fibre optic cables will be listened to as the site is adjacent to a BT telephone exchange”.
The minutes are not yet available but I understand that the Committee resolved that the proposals would “affect the ‘safety and security’ of residents, such as those at next-door Royal Mint Estate, cause harm to heritage assets, impact the quality of the area as a tourist destination and have an impact on local police resourcing.”
What is going to happen next? The People’s Republic of China has owned the site outright since 2018 and they are hardly going to walk away from the project. Michael Gove could conceivably call the application in before the refusal notice is issued, or China could appeal against the refusal and the appeal would presumably be recovered for his determination following recommendations from an inspector who would hold a public inquiry.
The political sensitivities are surely going to ramp up, no matter what. Perhaps this application should have been called in by the Government at an earlier stage rather than leave committee members with (1) such a difficult decision, balancing local concerns against international diplomatic responsibilities, and (2) such power. But I’m sure the government would have loved to have left this particular hot potato well alone. And they thought that juggling an appearance of dealing with the housing crisis with an appearance of leaving communities in control of local housing numbers was difficult….
The Government appears to be in negotiation with Tory MPs (46 of them at least) who may be prepared to wreck the Levelling-up and Regeneration Bill unless it includes a provision abolishing housebuilding targets for local authorities and abolishing the policy in the NPPF as to the maintenance of a five years’ supply of housing land. No doubt this will end up with some fudged solution adding further (1) uncertainty, (2) complexity and (3) hurdles in the way of housing provision.
But in another part of the forest, assuming they will overcome that local difficulty (aka huge chasm), the Government has brought forward a further set of amendments to the Bill to seek to address the nutrient neutrality problem which has amounted to a de facto veto on housebuilding in many areas of the country (see eg my 23 July 2022 blog post Neutrality: Government Clambers Off The Fence).
A new legal duty on water companies in England to upgrade wastewater treatment works by 2030 in ‘nutrient neutrality’ areas to the highest achievable technological levels.
A new Nutrient Mitigation Scheme established by Natural England, helping wildlife and boosting access to nature by investing in projects like new and expanded wetlands and woodlands. This will allow local planning authorities to grant planning permission for new developments in areas with nutrient pollution issues, providing for the development of sustainable new homes and ensuring building can go ahead. Defra and DLUHC will provide funding to pump prime the scheme.”
“The new legal duty on water and sewerage companies in England to upgrade certain wastewater plants will be introduced via a Government amendment to the Levelling Up and Regeneration Bill. We want these improvements to be factored in for the purposes of a Habitats Regulation Assessment.”
The nutrient mitigation scheme “will be open to all developers, with priority given to smaller builders who are most affected. Developers can also continue to put their own mitigation schemes in place should they choose. Natural England will work with, not crowd out, new and existing private providers and markets for nutrient offsets wherever they exist.
The scheme is due to open in the Autumn. All affected areas can continue to access practical support from the government and Natural England in meeting nutrient neutrality requirements. Natural England will deliver the scheme by establishing an ‘Accelerator Unit’, with the support of Defra, DLUHC, the Environment Agency and Homes England.
This announcement will support the delivery of the tens of thousands of homes currently in the planning system, by significantly reducing the cost of mitigation requirements. The mitigation scheme will make delivering those requirements much easier for developers.”
The possible bad news? Not so much bad news but an inspector’s appeal decision letter which confirms that the Habitats Regulations’ assessment requirements do not just apply when an application for planning permission is determined but, if an assessment was not carried out at that stage, at reserved matters/ conditions discharge stage. This is of course one of the huge current frustrations.
The decision letter, dated 24 November 2022, is here and is summarised by Landmark Chambers here.
Charlie Banner KC was for the appellant and his submissions were in line with an opinion previously provided for the HBF and widely circulated. The issues are not straight-forward and we wait to see whether the question will now come before the courts.
Short blog post this week – too busy, and to0 much football to watch.
Commentary about the Government’s adjusted direction for planning reform has been running on mist and speculation since Michael Gove’s return as Levelling Up Secretary of State on 25 October 2022, pending the Chancellor’s Autumn Statement on 17 November 2022.
But now it’s all systems go. As well as the Autumn Statement we now have:
Michael Gove’s written ministerial statement giving an update on the Levelling-up and Regeneration Bill (17 November 2022)
The Secretary of State is due to appear before the LUHC Select Committee on 21 November and the Bill will have its report and third reading stages on 23 and 28 November before heading to the Lords.
The Autumn Statement itself contained little in relation to planning reform, other than to “refocus” investment zones:
“3.16 The government will seek to accelerate delivery of projects across its infrastructure portfolio, rather than focus on the list of projects that were flagged for acceleration in the Growth Plan. The government will continue to ensure that all infrastructure is delivered quickly through reforms to the planning system, including through updating National Policy Statements for transport, energy and water resources during 2023, and through sector-specific interventions.”
“3.25 The government will refocus the Investment Zones programme. The government will use this programme to catalyse a limited number of the highest potential knowledge-intensive growth clusters, including through leveraging local research strengths. The Department for Levelling Up, Housing and Communities will work closely with mayors, devolved administrations, local authorities, businesses and other local partners to consider how best to identify and support these clusters, driving growth while maintaining high environmental standards, with the first clusters to be announced in the coming months. The existing expressions of interest will therefore not be taken forward. The government is grateful to local authorities for their work to develop proposals.”
I recommend two good commentaries on the Autumn Statement:
The amendments tabled to the Levelling-up and Regeneration Bill are potentially significant. To quote from the 18 November 2022 press statement:
“Amendments being tabled will:
Tackle slow build out by developers to make sure much needed new homes are delivered. Developers will have to report annually to councils on their progress and councils will have new powers to block planning proposals from builders who have failed to deliver on the same land.
Improve our environment and enshrine in law an obligation on water companies to clean up our rivers by upgrading wastewater treatment works. Considering all catchments covered by the amendment, our initial estimates indicate that there will be around a 75% reduction in phosphorus loads and around a 55% reduction in nitrogen loads in total from wastewater treatment works, although this will vary between individual catchments. These upgrades will enable housebuilding to be unlocked by reducing the amount of mitigation developers must provide to offset nutrient pollution. This will be accompanied by a Nutrient Mitigation Scheme that will make it easier for developers to discharge their mitigation obligations.
Give residents a new tool to propose additional development on their street, like extensions to existing homes, through ‘street votes’. Planning permission will only be granted when an independent examiner is satisfied that certain requirements, such as on design, have been met and the proposal is endorsed at a referendum by the immediate community. Pilot Community Land Auctions – testing a new way of capturing value from land when it is allocated for development in the local plan to provide vital infrastructure, including schools, roads, GP surgeries, and the affordable housing that communities need.
Enhancing powers for mayors to support them to managing their key route networks and increase transport connectivity across their area.
Help Nationally Significant Infrastructure Projects such as wind farms and new major transport links be delivered more quickly, by enabling a small number of public bodies to charge for their statutory services to help them provide a better, reliable, quality of advice to developers and support faster planning decisions.”
There are some potentially controversial proposals here, for instance local planning authorities would be able to decline to determine an application for planning permission of any prescribed description if the application has been made by someone who “has a connection with” earlier development which “has begun but has not been substantially completed” and where the “local planning authority is of the opinion that the carrying out of the earlier development has been unreasonably slow”.
Begun but not substantially completed, unreasonably slow – sounds to me like the Government’s performance in relation to planning reform….
The press statement doesn’t mention an additional tabled amendment, which would empower the Secretary of State to make such amendments and modifications to existing planning, development and compulsory purchase legislation as in the Secretary of State’s opinion facilitate or are otherwise desirable in connection with their consolidation. That’s one hell of a Henry VIII clause! A Town Legal colleague commented to me that the Delegated Powers and Regulatory Reform Committee will certainly be interested in this one if it reaches the Lords.
More from me on a number of the proposals in due course. In particular, I had really hoped I would never have to tackle community land auctions (again) or street votes.
We still await any announcements about planning policy reform, including as to changes to the NPPF and the future of the standard method for calculating local housing needs. We were left to read between the lines of what was said by Levelling Up Under Secretary of State Dehenna Davison in a Westminster Hall 30 minute debate earlier in the week on housing targets (15 November 2022):
“I know I am preaching to the converted when it comes to the need to modernise our planning system, and I think all MPs understand and get that we need a planning regime that is fit for 2022. […] I also understand that Members are frustrated—they are right to be frustrated—that this has been under discussion not just for months, but for years. We need more houses, and that obviously brings with it an obligation on us in Government to be frank and straight with people that building more houses has implications, both positive and sometimes negative. In some places, it will cause tension, and in some places, it will be a source of relief, but it is our job to be willing to have that dialogue, regardless of how difficult it may be. I am not sure that Governments of all colours have always approached these kinds of conversations in the most productive way. The inconvenient truth is that, for the best part of two decades, demand has outstripped the supply of homes.“
“…If we can get our planning regime right, we can unlock a huge amount of economic growth locally. We want to help local authorities to adopt and implement the best planning approaches for their areas. To achieve that, local authorities will need to be able to better attract and retain planners […] and we want to work further with the sector on that. He was right to highlight that as one of the major challenges facing authorities at the moment.
To incentivise plan production and to ensure that newly produced plans are not undermined, the Government intend to make it clear that authorities do not have to maintain a five-year supply of land for housing where they have an up-to-date plan. As Members would expect, we plan to consult on that. The new measures should have a minimal impact on housing supply, given that newly produced plans will contain up-to-date allocations of land for development, but that will also send a signal that the Government are backing a plan-led approach, provided that those plans are up to date.
There is no getting around the fact that we are in a difficult economic time. We face headwinds from all angles—energy, inflation and interest rate rises—and those have knock-on implications for everything that the Government do, but to my mind, they only serve to underline the need to build more homes and to give generation rent the chance to become generation buy. That is why we have to stand by our commitment to dramatically ramp up housing supply and our manifesto pledge to build a million new homes within the first term of this Parliament”
For additional political colour (blue) see also Michael Gove’s keynote speech at the Centre for Policy Studies’ Margaret Thatcher Conference on growth (16 November 2022)
In this case Holgate J found that the inspector in granting planning permission had taken into account a legally irrelevant consideration in assessing the level of harm caused to the neighbouring Grade I listed St Ann’s Church (paras 60-79). The inspector’s decision had accounted for the fact that the level of harm to the Church could not be further minimised by a different design. The court held however that even if the level of harm was “minimised” by the current design, this said nothing about what that “minimised” level of harm amounts to – harm to a heritage asset might be “minimised” by the design proposed but nevertheless still be “substantial”. Another reminder of the care that needs to be taken by decision makers in relation to the NPPF heritage test heffalump traps (see also for instance my 12 December 2020 blog post, Where’s The Harm In That? Misreporting Heritage Effects).
The Judge dismissed two further grounds of challenge, including a challenge that the inspector had wrongly considered the likely deliverability of the scheme. Holgate J held that there was no reason why deliverability could not be a material consideration in the determination of a planning application/appeal if relevant to the merits of the proposal – in this case, the site was owned by Homes England and this was relevant to the likelihood of delivery given its statutory function to promote regeneration.
(Thanks to my colleague Emma McDonald for her initial summary of the case for our Town Library Planning Court Weekly Updates (subscribe for free here).
No original work from me at all this week because I’m now going to reproduce Landmark Chambers’ summary of the ruling on this important and recurring issue – I had started to draft my own but it was less concise – for any more than this do read the judgment itself):
“In a judgment handed down at 5.30pm this evening, Mr Justice Holgate has dismissed applications by two local planning authorities to continue injunctions previously granted without notice, which had the effect of preventing the use of hotels in the two authorities’ areas to accommodate asylum seekers (including those being relocated from the overcrowded facility at Manston).
The claims were brought by the two councils under s. 187B Town and Country Planning Act on the basis that using the hotels to accommodate asylum seekers would amount to a material change of use, from use as a hotel to use as a hostel. Noting that the mere fact that a hostel was not in the same use class as a hotel did not of itself establish that the change was “material”, and that the distinction between a hotel and a hostel was “fine”, Holgate J nevertheless accepted that there was a serious issue to be tried. However, applying the American Cyanamid balance of convenience, he concluded that the factors in favour of discharging the injunction clearly outweigh those in favour of continuing it. In particular:
1. The distinction between use as a hostel and use as a hotel was fine. Whether there was a material difference depended upon the planning harm identified by the claimants.
2. There would not be any irreparable damage or harm. The use would not cause any environmental damage or any harm to the amenity of neighbouring uses. The buildings would not be altered and there would be no issues relating to traffic generation.
3. Although there is a public interest in enforcement action being taken against breaches of planning control, the integrity of the planning system is not undermined by the normal enforcement regime, which allows alleged breaches to continue while the merits of an appeal are under consideration.
4. The defendant’s conduct was not a flagrant breach of planning control. There were respectable arguments that planning permission was not needed.
5. The Home office was facing an unprecedented increase in the number of asylum seekers, the vast majority of who it was under a duty to accommodate. Without the ability to contract for the use of hotels there was a real risk of some asylum seekers becoming homeless.
6. In the claim brought by Ipswich, the Council’s concerns about the potential impact on tourism were “tepid”.
7. The proposed use would be temporary in nature. If that turned out not to be the case there were “plenty of other weapons in the LPA’s enforcement armoury to tackle the issue”.”
The case concerns the relationship between successive grants of planning permission for development on the same land and, in particular, about the effect of implementing one planning permission on another planning permission relating to the same site.
The facts concerned, in basic summary, a full planning permission for the development of 401 dwellings at Balkan Hill, near Aberdyfi in the Snowdonia National Park, granted in 1967. Development was to be in accordance with a detailed “master plan” showing the proposed location of each house and the layout of a road system for the estate.
Only 41 of the dwellings have been built to date, none in accordance with the masterplan. The developer, Hillside Parks Limited, has applied for and been granted a series of additional planning permissions permitting development which has taken place on parts of the site.
The Supreme Court has followed the Court of Appeal and High Court in concluding that development pursuant to the 1967 planning permission cannotlawfully be continued:
“The courts below were right to hold that the 1967 permission was a permission to carry out a single scheme of development on the Balkan Hill site and cannot be construed as separately permitting particular parts of the scheme to be built alongside development on the site authorised by independent permissions. It is possible in principle for a local planning authority to grant a planning permission which approves a modification of such an entire scheme rather than constituting a separate permission referable just to part of the scheme. The Developer has failed to show, however, that the additional planning permissions under which development has been carried out on the Balkan Hill site since 1987 should be construed in this way. Therefore, that development is inconsistent with the 1967 permission and has had the effect that it is physically impossible to develop the Balkan Hill site in accordance with the Master Plan approved by the 1967 permission (as subsequently modified down to 1987). Furthermore, other development has been carried out for which the Developer has failed to show that any planning permission was obtained. This development also makes it physically impossible to develop the site in accordance with the Master Plan approved by the 1967 permission (as subsequently modified).” (paragraph 100).
Whilst the specific facts of the case are unusual (including a degree of uncertainty as to the intended procedural status and effect of the subsequent planning permissions, several of which on their face are described as “variations” of the 1967 planning permission) the Supreme Court sets down some general principles to be applied to situations concerning overlapping permissions. The judgment clarifies some ambiguities arising from the earlier Court of Appeal judgment, although ambiguities remain.
One ambiguity indeed is as to the extent to which the principles set out apply to outline planning permissions, given passages such as paragraph 20:
“In this case, we are concerned with grants of full planning permission, in relation to which it is to be expected that a reasonable reader would understand that the detailed plans submitted with the application have particular significance.”
On first reading, I draw the following principles from the judgment:
Approval of the Pilkington principle
“In essence, the principle illustrated by the Pilkington case [[1973] 1 WLR 1527, Divisional Court] is that a planning permission does not authorise development if and when, as a result of physical alteration of the land to which the permission relates, it becomes physically impossible to carry out the development for which the permission was granted (without a further grant of planning permission) … Where the test of physical impossibility is met, the reason why further development carried out in reliance on the permission is unlawful is simply that the development is not authorised by the terms of the permission, with the result that it does not comply with section 57(1).” (paragraph 45)
“…([I]n the absence of clear express provision making it severable) a planning permission is not to be construed as authorising further development if at any stage compliance with the permission becomes physically impossible.” (see paragraph 68)
(my emboldening).
Interpretation of planning permissions for multi-unit developments
A planning permission for a multi-unit development is unlikely properly to be interpreted as severable into a set of discrete permissions to construct each individual element of the scheme.
However, see the reference above to the possibility of “clear express provision making it severable”. An early thought in reaction to the judgment is that in relation to large multi-phased planning permissions this may already be the case. Where it is not, it may often be useful in the future for it to be introduced.
The whole development is not unlawful if a proposed development cannot be completed fully in accordance with the planning permission
The Supreme Court doubted that it was correct that “in carrying out a building operation, any deviation from the planning permission automatically renders everything built unlawful, even in relation to a single building” and considered that it was certainly not the case that failure to complete a building operation for which planning permission has been granted renders the whole operation including any development carried out unlawful (To that extent the Supreme Court disagreed with remarks of Lord Hobhouse in Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22).
Under the Pilkington principle, departures must be material
“The Pilkington principle should not be pressed too far. Rightly in our view, the Authority has not argued on this appeal that the continuing authority of a planning permission is dependent on exact compliance with the permission such that any departure from the permitted scheme, however minor, has the result that no further development is authorised unless and until exact compliance is achieved or the permission is varied. That would be an unduly rigid and unrealistic approach to adopt and, for that reason, would generally be an unreasonable construction to put on the document recording the grant of planning permission – all the more so where the permission is for a large multi-unit development. The ordinary presumption must be that a departure will have this effect only if it is material in the context of the scheme as a whole: see Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222, 230. What is or is not material is plainly a matter of fact and degree” (paragraph 69)
How to vary a planning permission
Aside from the specific statutory procedures (section 73 and section 96A – and potentially in due course the additional procedure proposed in the Levelling-up and Regeneration Bill), what else can a developer do where it wishes to depart from the planning permission it has been granted?
“73 … [Counsel for Hillside] also submitted that it would cause serious practical inconvenience if a developer who, when carrying out a large development, encounters a local difficulty or wishes for other reasons to depart from the approved scheme in one particular area of the site cannot obtain permission to do so without losing the benefit of the original permission and having to apply for a fresh planning permission for the remaining development on other parts of the site.
74. In our view, that is indeed the legal position where, as here, a developer has been granted a full planning permission for one entire scheme and wishes to depart from it in a material way. It is a consequence of the very limited powers that a local planning authority currently has to make changes to an existing planning permission. But although this feature of the planning legislation means that developers may face practical hurdles, the problems should not be exaggerated. Despite the limited power to amend an existing planning permission, there is no reason why an approved development scheme cannot be modified by an appropriately framed additional planning permission which covers the whole site and includes the necessary modifications. The position then would be that the developer has two permissions in relation to the whole site, with different terms, and is entitled to proceed under the second.
75. The Authority has argued that, because the planning legislation does not confer any power on a local planning authority to make a material change to an existing planning permission, a later planning permission cannot have the effect of modifying in any material way the development scheme authorised by an earlier permission.
76. The trial judge, HHJ Keyser QC, did not find this argument persuasive and nor do we…”
(my emboldening).
If I have this right, this would be a procedure to fall back on in a situation where the Pilkington principle would otherwise bite i.e. where, even though development will be unchanged pursuant to part of the planning permission (1) that part can’t be shown to be clearly severable from the remainder (or presumably amended via section 96A or section 73 so as to be clearly severable) and (2) it would now be physically impossible to complete the planning permission in accordance with its terms (its original terms or presumably as amended via section 96A or section 73) if a separate permission were to be granted in relation to part of the development area covered by the permission.
No principle of abandonment of planning permissions
The developer’s argument that Pilkington should be analysed as a case resting on a principle of abandonment was rejected. The Supreme Court does not accept “that there is any principle in planning law whereby a planning permission can be abandoned” (paragraph 35).
I hope this brief initial run down is a helpful introduction to what will in due course be a very familiar text for all of us. More anon I’m sure.
Many a frustrated participant in the planning system has asked from time to time: is there any financial redress for mistreatment allegedly received at the hands of a local planning authority? (To be fair, sometimes a frustrated local planning authority may indeed also wonder what redress it has against mistreatment received at the hands of applicants or objectors).
Beyond the possibility of an award of costs on appeal (inadequate in that it will only cover professional costs in relation to the appeal stage rather than application stage, although still sometimes high, viz the figure of £2.1m reportedly agreed this week by Uttlesford District Council to be payable to Stansted Airport) or the possibility of obtaining a voluntary payment of compensation by way of a ruling by the Local Government Ombudsman, in what circumstances might the authority be sued in negligence?
The negligence route has now, expensively, been tested in Primavera Associates Limited v Hertsmere Borough Council (Leech J, 25 October 2022). Four days in what used to be known as the Chancery Division of the High Court, with various expert witnesses on both sides. It’s a horror story of a situation – what should have been a small and straightforward development project in Radlett, Hertfordshire promoted by Shandler Homes on behalf of Primavera Associates Limited. As is often the case in these situations, in the cold light of day neither party, neither applicant not local planning authority, could be said to have been entirely blameless.
As described from paragraph 36 onwards of the judgment, planning permission was granted on 3 September 2012 for the demolition of a house and the erection of seven self-contained apartments, following an application submitted on 13 January 2012. The planning permission was then challenged by the owner of the neighbouring property who had previously sought to redevelop it together with the Shandler Homes property and the council consented to judgment on the basis that a planning condition referred to a plan showing an incorrectly drawn visibility splay.
The application was then redetermined, with the council resisting submissions from the objector’s solicitors (supported by an opinion by Rupert Warren KC) that the application should now be assessed against the current development plan. Oh dear, another judicial review ensued and again the council consented to judgment.
A fresh application for permission was then submitted on 2 April 2014, for a very similar scheme. Delays ensued whilst financial viability appraisal work was undertaken to check whether the applicant’s proposed commuted sum towards affordable housing was sufficient.
By 14 November 2014 Shandler Homes and Primavera were threatening to bring proceedings in negligence against the council. Delays continued (I’m at paragraph 85 now – it really is a sorry tale) and by 14 October 2015 another letter was sent threatening proceedings in negligence. During this period CIL liability increased and then the council started to insist upon a clawback mechanism to secure 60% of any surplus that arose on a subsequent viability review to be carried out.
The application was resolved to be approved on 21 April 2016 and following fractious negotiations over the section 106 agreement, planning permission was issued on 28 September 2016.
A third application for planning permission was submitted on 30 September 2016, increasing the number of flats proposed from seven to ten, which was approved on 15 March 2017.
Primera sued Hertsmere Council for around £1.7m, which it claimed to be the losses suffered due to what it considered to be negligent conduct on the part of the council.
To turn briefly to the law. As I’m sure you know, in order to succeed in a claim in negligence it is necessary for the following factors to have been established:
The defendant owed a duty to the claimant
The defendant breached the duty owed to the claimant
The defendant’s breach of duty caused the claimant to suffer loss
The loss caused by the defendant’s breach of duty is recoverable
Duty of care
From paragraph 179 Leech J sets out the case law in detail as to when a duty of care arises, and does not arise. This includes, at paragraphs 203 to 215, the case law in relation to planning matters.
His findings start at paragraph 221. First of all no duty of care arose as a result of the statutory nature of the functions being undertaken by the council. The council did not give “any assurance to Shandler Homes that it would decide either application in a particular way or within a particular time. In either case, the remedy was to appeal.” The fact that an application fee was paid did not change the analysis, or indeed lead to a contractual relationship between the parties. In any event, any duty of care would not have stretched beyond Shandler Homes to Primavera and other entities related to the promotion of the development. No could any assumption of liability be inferred from the manner in which the council had behaved towards Primavera:
“(1) I have found that the Council’s officers and the Committee’s members did not give any commercial or legal advice to Primavera or to Fusion (on its behalf) upon which Primavera (or Fusion) relied in relation to the First Application either when it was originally submitted or when it was submitted in a revised form.
(2) I have also found that Mr Down took a calculated decision not to appeal against the non-determination of the Second Application in the knowledge that the position was uncertain and changing. I am satisfied that Primavera chose to take the risk of any delay or flaw in the statutory process rather than to appeal.
(3) But even if (contrary to my finding of fact) Mr Down did not consider an appeal to be a realistic option because Mr Taylor and he did not know what they would have been appealing against, I have also held this belief was an unreasonable one and not induced by any representation or assurance made by the Council.
(4) I have found that in the period between 13 April 2013 and 27 September 2016 the Council did not assume responsibility for the progress and determination of the Second Application within a specific time frame or within a time which Mr Taylor or Mr Down considered reasonable. I have also found that Fusion and Primavera adopted a confrontational and heavy-handed approach. In my judgment, Mr Taylor’s complaints and the Letters of Claim which Lawrence Stephens sent to the Council negated any reliance by Primavera upon the competence or efficiency of the Council.”
He concludes that the claim fails because the council did not owe any duty of care to Primavera to exercise reasonable care in processing and determining the applications.
However, he goes on in any event to consider the further issues: breach of duty, causation and assessment of damages (if his finding on duty of care were to be overturned on appeal).
Breach of duty:
“If the Council owed a duty of care (contrary to my finding above), then I find that it committed a breach of that duty and failed to exercise reasonable skill and care by determining the revised First Application by reference to the planning policy at the date on which the First Application was submitted and not by reference to the emerging planning policy at the date of the Second Decision. For the avoidance of any doubt, I add that I do not find that the Council failed to exercise reasonable care in relation to any other aspect of the First Application or the First and Second Decisions.”
“If the Council owed a duty of care (contrary to my finding above), then … I also find that the Council was negligent and responsible for a six-month delay in the progress of the Second Application between January and July 2015. I dismiss all of the other allegations of negligence and lack of reasonable care against the Council.”
Causation:
“I also find on a balance of probabilities that if the Council had acted with reasonable care throughout the period between the submission of the Second Application on 2 April 2014 and 27 September 2016 when the Second S106 Agreement took effect, it would have taken six months less to progress and determine the Second Application and the Council would have issued the Third Decision by 21 October 2015. However, I would also have found that the conduct of Shandler Homes broke the chain of causation because (as I have found) Mr Down took a calculated decision not to appeal against the non-determination of the Second Application at any time between 3 June 2014 and 3 December 2014 (or to negotiate an extension of time for an appeal).”
Assessment of damages:
“If I had found that the Council owed such a duty of care, I would also have found that the Council had committed two breaches of duty and that if it had not committed the first of those breaches of duty, it would have granted planning permission for the Second Application on 28 January 2014. I would, however, have dismissed all of the heads of loss claimed by Primavera apart from the claim relating to the Affordable Housing Contribution and the Additional Housing Contribution. Primavera adduced no evidence to prove these losses at trial and even this is wrong I would not have awarded any more than £134,724.80 in damages.”
Concluding thoughts
The case certainly brings with it some salutary lessons – about trying to avoid the sort of breakdown of trust between the parties which led to so many flashpoints and mistakes on both sides. The applicant’s team, seeing life from its perspective, increasingly concerned about the cost, expense and uncertainties arising from what should have been a straightforward planning application process, was no doubt furious at the clangers on the part of the council’s officers and the timescales to which they were working. It’s easy to say perhaps from a distance, but a more consensual approach, providing good objective advice for the benefit of all parties where necessary, might have been more fruitful for the applicant than resorting to what the judge described as a “confrontational and heavy-handed approach”. And litigation, ultimately, was not the answer.
In other news, has Elon Musk found any Clangers on Mars yet? Plenty of surprises left for the rest of 2022 I’m sure.
SIMONICITY 