Resignation of Rishi Sunak as chancellor – 5 July 2022
Resignation of Boris Johnson as prime minister – 7 July 2022
Replacement of Boris Johnson by Liz Truss as prime minister – 6 September 2022
Death of Her Majesty – 8 September 2022
Mini-budget and publication of growth plan – 23 September 2022
Resignation of Liz Truss as prime minister – 20 October 2022
Replacement of Liz Truss by Rishi Sunak, Boris Johnson or AN Other as prime minister – October 2022
A lot has happened. Or perhaps, in our planning world, nothing has happened.
We briefly had a prime minister who talked of abolishing “top-down, Whitehall-inspired Stalinist housing targets” and indeed the Levelling Up Secretary of State Simon Clarke (who incidentally came out publicly today as a backer of Boris Johnson) spoke about those targets as if they had already been abolished. But of course, as we wait for the mythical NPPF changes prospectus (delayed to November even before the Truss resignation which could lead to further delay), formal policy remains as is. The only effect of the loose talk was to give cover to local authorities anxious for an excuse to pause their local plan making. Thanks Liz – it wasn’t just the markets that you spooked.
No doubt the change is on its way regardless but, honestly, how idiotic it would be to give up on having a methodology that identifies each local planning authority’s local housing needs, for which they should usually plan. The likely consequences of removing the targets are clear:
longer plan-making processes, particularly the examination stage
fewer homes delivered
more planning by appeal
plan-making increasingly largely driven by promises of funding to be provided and threats of funding to be removed. We can try to forget about that “pork markets” Truss quote but I suggest you retain at hand a much older phrase: “pork barrel politics”.
And what is wrong with top down targets anyway? Our health and education systems for instance are full of the things.
Away from housing, the announcements in the growth plan in relation to, for instance, fracking (pro – despite the planning minister Lee Rowley being strongly against) and solar energy (anti) have not get found their way into any formal policy changes.
I have scrolled through the amended Bill and aside from the detailed changes to schedule 11 (which relates to the infrastructure levy) mentioned by Nicola, and other minor tweaks, I would only draw attention to the following new provisions:
clause 111 – power to shorten the deadline for examination of DCO applications
clause 112 – additional powers in relation to non-material changes to DCOs
clause 152 – prospects of planning permission for alternative development [in the context of CPO compensation]
Next up will be Report stage and a debate on the Third Reading of the Bill and we shall see if any further amendments are tabled by the Secretary of State, whoever he or she may be at that stage.
The political soap opera this weekend, plus another fabulous sunny Autumn morning – versus writing a blog post about compulsory purchase? Time to use that thinking face emoji.
The inspector’s decision dated 4 October 2022 to decline to confirm the London Borough of Barking and Dagenham Council (Vicarage Field and surrounding land) Compulsory Purchase Order 2021 certainly brings with it some lessons, or at least reminders, for those promoting compulsory purchase orders in association with public/private sector regeneration projects.
Here are the inspector’s conclusions in full:
“368. The scheme underpinning the CPO is wholly in accordance with the development plan and has the benefit of outline planning permission. There is an extremely compelling case in the public interest for the development, in meeting economic, environmental and social needs. This would considerably outweigh the heritage harm and loss of existing jobs.
369. The shopping centre and town centre overall needs redevelopment, it is the lowest ranking Borough in London for poverty, and this scheme is the catalyst that would spark further regeneration. There are also no realistic alternative proposals that would achieve the purpose for which the AA is proposing to acquire the land.
370. I am completely aware that failure to confirm the CPO would have an adverse consequence of losing the opportunity to comprehensively redevelop the site at this time. The Council has staked its reputation on the delivery of the scheme and its delivery is critical to achieve its ambitions.
371. I fully recognise much of the potential financial viability of the scheme is reliant upon the scheme itself and it is a complete ‘catch 22’ situation. The developer is confident the Scheme will be delivered. The funding intentions are clear, and I have no doubt that the developer has access to funds.
372. Nevertheless, there is fundamental lack of tangible and substantive evidence on viability. Given the gravity of the 2016 appraisal, and the lack of an updated appraisal, I cannot be certain that the scheme is financially viable despite all assurances from the AA. Other methods to present the evidence confidentially could have been explored and, if the scheme was viable, I do not understand why this evidence was not presented. Whilst the AA claims viability evidence from objectors has not been presented, it is for the AA to demonstrate substantive information as to the financially viability of the scheme. It has not done so in a way that convinces me.
373. Consequently, because I cannot conclude that the scheme is financially viable, I cannot be confident that there is a reasonable prospect that the scheme will proceed at this time, or that the necessary resources are likely to be made available within a reasonable time scale. This is because there is an expectation of return, and no developer or investor would pursue a scheme that is not economically viable or feasible. This is even if it has access to funds, sees a long term vision, or pools funds so that one scheme may perform better than another. The legal agreements also provide me with little comfort of delivery, despite the depreciating value of the lease.
374. This makes it difficult to show conclusively that the compulsory acquisition of the land included in the order is justified in the public interest at this time, as detailed by CPO Guidance.
375. Added to this are my concerns that inadequate negotiations have taken place, when considering the CPO Guidance. It could not be said that delays have been keep to a minimum. The lag from Cabinet approving the making of the CPO to making the CPO was 3 years. There has been a significant delay in the submission of reserved matters applications, and the outline permission expires in April 2023.
376. The efforts to acquire the CPO lands by private treaty have also been largely ineffective. Claims are made by objectors that the financial offers have not been market value, and it is the shopping centre that has failed, not the surrounding businesses on Ripple Road and Station Parade. There have also been limited efforts to relocate those affected by the CPO to date. A ‘not before’ date has been absent and this has resulted in those subjected to the CPO unable to fulfil business plans, living in limbo for a long period of time. Full information was also not provided at the outset and there was no clearly specified case manager.
377. Consequently, whilst I acknowledge the pressing need for redevelopment and the extremely compelling case for the CPO, for the above reasons, I cannot confirm that the compulsory acquisition of the land included in this Order is proportionate or justified in the public interest.
378. Thus, the London Borough of Barking and Dagenham Council (Vicarage Field and surrounding land Compulsory Purchase Order) 2021 is not confirmed.”
I recommend that you read my partner Raj Gupta’s 10 October 2022 blog post The Vicarage Field CPO and viability and that you subscribe to his forthcoming posts which will cover:
the Inspector’s criticisms of the promoter’s engagement with occupiers and the deficiencies of its relocation strategy.
other points made by the Inspector including in relation to planning, publicity and timing matters with some bonus musings on whether the CPO reforms proposed by LURB (e.g. conditional confirmation) would have made any difference to the outcome.
The decision is no doubt frustrating to all those who worked so hard, with the best of objectives – whilst no doubt equivalently a huge relief for those organisations, businesses and individuals whose land interests, activities and livelihoods were at stake.
Michael Walton posted these words on LinkedIn:
“The proposed regeneration of Vicarage Field shopping centre in Barking adds enormous value to the transformative vision for the borough.
As Head of Regeneration Strategy at Be First I advised on initiatives which helped accelerate growth in Barking & Dagenham. Oversight of Vicarage Field was led by another division, and I moved on from Be First prior to the public inquiry into the CPO being held this year.
The decision made recently by the Inspector to not confirm the CPO is disappointing. Prior to it being made, I highlighted similar issues around deliverability. However, the Inspector also placed a high bar on negotiations with affected parties when reaching her decision.
Nonetheless, this should not deter local authorities from seeking CPO powers as part of their regeneration plans – it merely reinforces the need to de-risk projects and put forward a compelling case.”
Agreed. In fact, I suspect that the decision will prove helpful to promoters of future CPOs, in underlining for them what has to be in place, however difficult it may be in current uncertain circumstances, in order for a CPO to be confirmed.
Now to check whether the sun is still shining – and whether we still have a Prime Minister.
“The government will look to introduce primary legislation in order to enable the offer on tax and simplified regulations. The final offer will be subject to the passage of that legislation through parliament.”
There really isn’t much clarity as to the nature and extent of any primary legislation that will in fact be required to deliver the regimes envisaged for each investment zone (potentially bespoke for that investment zone). When you add this to the wider confusion as to the relationship of the proposed Planning and Infrastructure Bill with the current Levelling-up and Regeneration Bill (with much of what was trailed for the former either already within the latter – eg environmental law reform – or shortly to be added by way of amendments.- eg amendments to NSIP processes – or able to be secured by way of secondary legislation), some clarity from Government is urgently needed.
Turning to the question of what amended planning regimes may be appropriate for some investment zones, people have rightly pointed to the potential use of local development orders, which for example the Government has previously encouraged in relation to enterprise zones and freeports.
However I’m wondering whether, instead of further primary legislation to set out some unspecified new procedure (which sounds slow and impractical), the Government has considered whether two provisions which are already on the statute book are in fact sufficient: simplified planning zones and planning freedoms schemes. Are ministers even aware of them? I would be interested in people’s experiences with either.
“(1) A simplified planning zone is an area in respect of which a simplified planning zone scheme is in force.
(2) The adoption or approval of a simplified planning zone scheme has effect to grant in relation to the zone, or any part of it specified in the scheme, planning permission—
(a) for development specified in the scheme, or
(b) for development of any class so specified.
(3) Planning permission under a simplified planning zone scheme may be unconditional or subject to such conditions, limitations or exceptions as may be specified in the scheme.”
This is a good explainer, with examples: How simple are Simplified Planning Zones? (Local Government Lawyer, 4 February 2016) and here is some information about Slough Borough Council’s Slough Trading Estate SPZ.
“Section 154: Planning freedoms: right for local areas to request alterations to planning system
441 This section enables the Secretary of State, by regulations, to make planning freedom schemes in England. Planning freedom schemes may only be made following a request from the local planning authority for the relevant area and only if the Secretary of State considers the scheme will lead to additional homes being built.
442 Before bringing forward proposals for a scheme the local planning authority must consult in their local area.
443 Such schemes will operate for a specified period (although subsection (7) includes the power to bring schemes to an end early, for example, where the local planning authority asks the Secretary of State to do so).
444 Planning freedom schemes will apply in relation to a specified planning area which will be the area of a local planning authority or an area comprising two or more adjoining areas of local planning authorities. The Secretary of State may restrict the number of planning freedom schemes in force at any one time.”
Is anyone aware of this, extremely open-ended, power ever having been used?
Planning legislation is full of these false starts and dead ends. I’m sure there’s plenty more that you can point to. Regardless of any substantive changes, a spring clean of the whole legislative framework is well overdue. Although who knows what we’ll find.
I hope people enjoyed listening to the clubhouse chat with Hashi Mohamed last week. If you missed it you can listen back here.
“If passed, REULRR will effectively sweep away any and all EU laws that the Government hasn’t actively decided to keep.
It does this by:
Repealing EU derived laws by the end of 2023. The government will be able to extend that deadline to 23 June 2026 (the tenth anniversary of the Brexit referendum) but can’t further extend it.
Repealing the principle of supremacy of EU law by the end of 2023. Currently, any EU decision reached before 1 January 2021 is binding on UK courts unless the government departs from it. However, this bill will subjugate all EU law in favour of UK law by default.
Repealing directly effective EU law rights and obligations in UK law by the end of 2023; and
Establishing a new priority rule requiring retained direct EU legislation to be interpreted and applied consistently with domestic legislation.”
She discussed this further at our clubhouse Planning Law Unplanned session last week on the Growth Plan, which Sam Stafford has now trimmed neatly into a 50 Shades of Planning podcast:
You will remember that the European Union Withdrawal Act 2018 had the effect of retaining, post Brexit, EU-derived domestic legislation such as the regulations in relation to environmental impact assessment, strategic environmental impact and conservation of habitats, leaving it to Parliament in due course to determine the extent to which the legislation should subsequently be repealed or amended.
”The REUL [retained EU-derived law] framework established by EUWA, however, was not intended to be maintained indefinitely on the UK statute book and now the Government is in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens.”
The Bill now places a firm deadline on that process:
“The Retained EU Law (Revocation and Reform) Bill facilitates the amendment, repeal and replacement of REUL by the end of 2023, and assimilates REUL remaining in force after that date by removing the special EU law features attached to it.”
The end of 2023 deadline can only be extended, to 23 June 2026 “should a lack of parliamentary time, or external factors, hinder progress towards reform of retained EU law prior to the 2023 sunset date.”
Is this of concern?
In short, yes of course. It may be said that the Government is committed to a principle of non-regression from current environmental standards, but given the current political pinball and the lack of relevant ministers with any real experience of the sheer complexity and nuances of what they are dealing with, frankly anything is possible. Campaign groups are certainly on edge: Brexit freedoms bill’ could abolish all pesticide protections, campaigners say (Guardian, 29 September 2022).
To an extent, at a high level, the principle of non-regression is built into the trade and co-operation agreement between the UK and EU which was signed on 30 December 2020 and came into force on 1 May 2021. The UK gave various, at least theoretically, binding commitments in the agreement as to non-regression from environmental levels of protection, which I describe in my 27 December 2020 blog post Brexit & Planning: An Update.
There are also generalised commitments within the Environment Act 2021 (which of course Parliament is always of course at liberty to amend or repeal as it chooses). The Government consulted in May 2022 in relation to its draft environmental principles statement. The statement has not yet been finalised and there is not yet any duty upon ministers to take it into account in their policy making. This may not be until summer 2023 at the earliest! The Office for Environmental Protection (a body established pursuant to the 2021 Act) has criticised the statement for “a relatively limited degree of ambition”. The OEP has similarly criticised as unambitious the Government’s draft environmental targets, also consulted upon pursuant to the 2021 Act.
As against these inchoate commitments to environmental standards, what is going to give in the face of a Government which, according to its Growth Plan, will be “disapplying legacy EU red tape where appropriate” in the investment zones it is proposing, and which proposes a Planning and Infrastructure Bill which will be:
“reducing the burden of environmental assessments
reducing bureaucracy in the consultation process
reforming habitats and species regulations”?
Genuine improvements to the processes are certainly possible. But do we trust the Government to strike an appropriate balance, hurtling towards a self-imposed December 2023 deadline and (at the latest) 2024 general election? In the coming year, most of our environmental legislation, and planning legislation to the extent that it is intertwined, will need to be reviewed, line by line, and, given that most of it is in the form of secondary legislation (and the sheer lack of time – after all the REULRR Bill covers all EU derived legislation!), there will be relatively limited Parliamentary scrutiny of that process. Even with the best of intentions, how is this timescale even going to be possible if we are to avoid a complete bodge-up? We have been treading (often polluted) water for so long and we still have no sense whatsoever of what the long trumpeted “outcomes focused” approach will look like in practice – eg see my 2 April 2022 blog post Is the Nature Recovery Green Paper The Answer? (& If So What Was The Question?)
On a slightly different, although possibly related, note….
At 6 pm on Wednesday 5 October 2022 we will be having a discussion on Clubhouse with barrister Hashi Mohamed, around the themes of his FT article The housing crisis sits at the centre of Britain’s ills (1 October 2022, behind paywall) and his recent book A home of one’s own, a trenchant and personal look at the politics of planning and housing.
Join via this link. If you use the link to RSVP in advance (you don’t have to) you’ll get a reminder when we start – and we can get a feel for likely numbers.
What is needed to calm the nerves all round – on planning, on housing, on environmental protection – is detail. When are we going to get it? HM Treasury announced on 26 September 2022:
“Cabinet Ministers will announce further supply side growth measures in October and early November, including changes to the planning system, business regulations, childcare, immigration, agricultural productivity, and digital infrastructure.”
Always just another month or so to wait, every time.
HM Treasury published its Growth Plan 2022 on 23 September 2022. There is so much to take in, this initial blog post simply sets out all of the key passages. A panel including Samuel Stafford, Shelly Rouse, Nicola Gooch, Iain Thomson and myself will be discussing all of this in detail on clubhouse at 6pm on Tuesday 27 September 2022 and we would love to hear your views too. Join the session here (and nowadays if you RSVP within the app you can diarise it, get notified when the session starts etc).
All I would say at this point is that:
I’m not sure whether it’s right to assume that this means the end of the road for the Levelling-up and Regeneration Bill in its entirety? Along the way there is reference to a proposed Planning and Infrastructure Bill but there is no detail yet as to its contents and whether of the LURB will be retained or recycled.
There are some eye catching proposals here and the direction of travel is clear, although in most instances of course what we need is a further layer of detail.
From the executive summary
“The Growth Plan 2022 makes growth the government’s central economic mission, setting a target of reaching a 2.5% trend rate.”
“To drive higher growth, the government will help expand the supply side of the economy. The Growth Plan sets out action to unlock private investment across the whole of the UK, cut red tape to make it quicker to deliver the UK’s critical infrastructure, make work pay, and support people to get onto the property ladder. New Investment Zones will provide time-limited tax reliefs, and planning liberalisation to support employment, investment, and home ownership.”
Chapter 2, “tackling energy prices”
“To increase energy resilience, the North Sea Transition Authority will shortly launch a new oil and gas licensing round. This is expected to deliver over 100 new licenses. The government has also announced an end to the pause on extracting reserves of shale. The government is driving the development of home-grown nuclear – including Small Modular Reactors – hydrogen, Carbon Capture, Utilisation and Storage and renewable technologies. The government will unlock the potential of onshore wind by bringing consenting in line with other infrastructure. The UK is a world-leader in offshore wind, with 8GW of offshore wind currently under construction. By 2023 the government is set to increase renewables capacity by 15%, supporting the UK’s commitment to reach net zero emissions by 2050.”
Chapter 3, “growth”
“…the government must cut taxes, streamline the public sector, and liberate the private sector, by making Britain the place for:
• investment: creating the right conditions and removing barriers to the flow of private capital – whether taxes or regulation
• skilled employment: helping the unemployed into work and those in jobs secure better paid work
• infrastructure: accelerating the construction of vital infrastructure projects by liberalising the planning system and streamlining consultation and approval requirements
• home ownership: getting the housing market moving
• enterprise: cutting red tape and freeing business to grow and invest.”
Investment zones
“The government will work with the devolved administrations and local partners to introduce Investment Zones across the UK. Investment Zones aim to drive growth and unlock housing. Areas with Investment Zones will benefit from tax incentives, planning liberalisation, and wider support for the local economy. The specific interventions in Investment Zones will include:
• Lower taxes – businesses in designated sites will benefit from time-limited tax incentives.
• Accelerated development – there will be designated development sites to deliver growth and housing. Where planning applications are already in flight, they will be streamlined and we will work with sites to understand what specific measures are needed to unlock growth, including disapplying legacy EU red tape where appropriate. Development sites may be co-located with, or separate to, tax sites, depending on what makes most sense for the local economy.
• Wider support for local growth – for example, through greater control over local growth funding for areas with appropriate governance. Subject to demonstrating readiness, Mayoral Combined Authorities hosting Investment Zones will receive a single local growth settlement in the next Spending Review period.
Specified sites in England will benefit from a range of time-limited tax incentives over 10 years. The tax incentives under consideration are:
• Business rates – 100% relief from business rates on newly occupied business premises, and certain existing businesses where they expand in English Investment Zone tax sites. Councils hosting Investment Zones will receive 100% of the business rates growth in designated sites above an agreed baseline for 25 years.
• Enhanced Capital Allowance – 100% first year allowance for companies’ qualifying expenditure on plant and machinery assets for use in tax sites.
• Enhanced Structures and Buildings Allowance – accelerated relief to allow businesses to reduce their taxable profits by 20% of the cost of qualifying non-residential investment per year, relieving 100% of their cost of investment over five years.
• Employer National Insurance contributions relief – zero-rate Employer NICs on salaries of any new employee working in the tax site for at least 60% of their time, on earnings up to £50,270 per year, with Employer NICs being charged at the usual rate above this level.
• Stamp Duty Land Tax – a full SDLT relief for land and buildings bought for use or development for commercial purposes, and for purchases of land or buildings for new residential development.
The Department for Levelling Up, Housing and Communities will shortly set out more detail on the planning offer. This will include detail on the level of deregulation and the streamlined mechanism for securing planning permission.
The government will deliver Investment Zones in partnership with Upper Tier Local Authorities and Mayoral Combined Authorities in England, who will work in partnership with their relevant districts and/ or constituent councils. All Investment Zone agreements will contain tax and development sites. Areas will be responsible for putting forward sites and demonstrating their potential impact on economic growth, including by bringing more land forward and accelerating development.
Investment Zones will only be chosen following a rapid Expression of Interest process open to everyone, and after local consent is confirmed. However, examples of illustrative sites that may have the potential to accelerate growth and deliver housing in the way the Investment Zone programme envisages can be found in Annex A.
The government is in early discussions with 38 Mayoral Combined Authorities and Upper Tier Local Authorities who have already expressed an initial interest in having a clearly designated, specific site within their locality. A full list of these 38 authorities is available in Annex A.
The government will deliver Investment Zones in Scotland, Wales and Northern Ireland and intends to work in partnership with the devolved administrations and local partners to achieve this. The government will legislate for powers to create tax and development sites in Investment Zones where powers are reserved.
The government remains committed to the progress of the Freeports programme. The government will work with local partners involved in current and prospective Freeports to consider whether and how the Investment Zones offer can help to support their objectives, as part of the wider process for identifying Investment Zones. This will ensure that both programmes complement one another.”
Annex A lists 24 examples of “illustrative sites that may have the potential to accelerate growth and deliver housing in the way the Investment Zone programme envisages” and 38 authorities with which the government is in early discussions with a view to establishing an investment zone in their area.
“The government envisages that Investment Zones will be one or more specific sites within an MCA or UTLA where a variety of tax, regulatory innovations and flexibilities, and planning simplifications will apply within those site’s boundaries.
As MCAs and UTLAs consider coming forward to express interest in pursuing Investment Zones with the government, they should consider which sites will best drive a substantial contribution to the UK’s economic growth and a significant acceleration of delivery of additional housing. There is a strong expectation that Investment Zones will bring forward additional development, and that they bring forward a mix of both commercial and residential development. Both of these will be considered in the EOI assessment process.
Sites may be aligned with existing local growth strategies and transport plans. Sites that already have a masterplan, development order or outline permission could be considered by MCAs and UTLAs as a potential Investment Zone, as could sites where planning consents are not yet in place. Development sites where planning simplifications apply may be co-located with, or separate to, tax sites, depending on what makes most sense for the local economy.”
Housing
“To make buying a home a reality, the government must accelerate housing delivery. Planning permission was granted for more than 310,000 homes last year, up 10% on the year before,10 but further reform is needed. Later this autumn, the government will set out its vision to unlock homeownership for a new generation by building more homes in the places people want to live and work and by getting our housing market moving. This will boost growth across the UK helping more people afford to live near good jobs. The government’s full proposal will be set out in due course.
The government will promote the disposal of surplus public sector land by allowing departments greater flexibility to reinvest the proceeds of land sales over multiple years. This will encourage the sale of more public land for housing and allow departments and the NHS to reinvest in public services. Devolved administrations have bespoke flexibilities to move funding between financial years and the government will discuss the implications of this change with them in due course.”
Planning
“The UK’s planning system is too slow and too fragmented. For example, an offshore wind farm can take four years to get through the planning process and no new substantive onshore wind farm has received planning consent since 2015.”
“The Growth Plan announces that new legislation [the Planning and Infrastructure Bill] will be brought forward in the coming months to address […] barriers by reducing unnecessary burdens to speed up the delivery of much-needed infrastructure. This includes:
• reducing the burden of environmental assessments
• reducing bureaucracy in the consultation process
• reforming habitats and species regulations
• increasing flexibility to make changes to a DCO once it has been submitted.”
Infrastructure
“The Growth Plan also announces further sector specific changes to accelerate delivery of infrastructure, including:
• prioritising the delivery of National Policy Statements for energy, water resources and national networks, and of a cross-government action plan for reform of the Nationally Significant Infrastructure planning system
• bringing onshore wind planning policy in line with other infrastructure to allow it to be deployed more easily in England
• reforms to accelerate roads delivery, including by consenting more through the Highways Act 1980 and by considering options for changing the Judicial Review system to avoid claims which cause unnecessary delays to delivery
• amendments to the Product Security and Telecommunications Infrastructure Bill to give telecoms operators easier access to telegraph poles on private land, supporting the delivery of gigabit capable broadband.”
“The Growth Plan also sets out the infrastructure projects that the government will prioritise for acceleration, across transport, energy and digital infrastructure. This non-exhaustive list is set out in Annex B and reflects projects which have particularly high potential to move to construction at an accelerated pace. The government will also continue to focus on delivering its wider infrastructure priorities, from major projects such as HS2, to its wider nuclear strategy.”
The 50th Oxford Joint Planning Law Conference took place this weekend. It was great to see many of you.
On the first morning, Christopher Lockhart-Mummery KC gave a lovely paper contrasting his recollections of the planning system as it was in 1972 with how it was when he retired from practice last year.
Of course, we can all bemoan the modern-day complexity, but of course one reason for it is the range of regulatory checks and considerations which have been shoe-horned into the system, often for the best of reasons but boy does this system take time to load these days.
The now disbanded Advisory Team for Large Applications had the very apt acronym, ATLAS, who is shown in sculptures as carrying the weight of the world on his shoulders (although this was rather an exaggeration as apparently – this is all real, right? – he only held up the sky – which frankly doesn’t sound so difficult).
Rather than write a proper blog post this weekend, I thought I might simply set out some links to previous blog posts where I have covered matters which have become relevant to the consideration of planning applications since the simplistic system of the 1970s that Christopher nostalgically described. These are just some examples of many. No surprise why the system is more complex now than then.
Environmental impact assessment – see eg my 25 February 2022 blog post Two Plugs which referred to the Court of Appeal’s ruling in Finch, the appeal from which is now due to be heard in the Supreme Court
I could add many more. There are so many public policy outcomes which, for delivery, rely in large measure on our poor creaking planning system. There’s little “red tape” in any of this either. “Simplifying” planning isn’t easy.
Much has happened since my last blog post two weeks ago. Eclipsing all else has been the death on 8 September 2022 of Her Majesty Queen Elizabeth II – surely one of our greatest Britons. It is right that we mourn as a country as if a family. If anyone deserves that, she does.
What is appropriate in this period of mourning? Hashi Mohamed and I decided to postpone our clubhouse chat about his new book A home of one’s own that was due to take place this Monday. It will now happen at 6 pm on Wednesday 5 October 2022 and we hope that you can join us. It felt wrong to be promoting the event actively this weekend and having what I hope will turn out to be a lively, no holds barred, discussion on what is wrong with our approach to housing.
However, it feels equally wrong to pretend that everything else of concern in the world is on hold. There was literally no other news on the BBC last night.
And yet, these are momentous times. Liz Truss became prime minister on 6 September 2022 and on the morning of 8 September 2022, opening a debate on energy policy, she announced an energy price guarantee for individuals and businesses as wider energy policy changes (see Government announces Energy Price Guarantee for families and businesses while urgently taking action to reform broken energy market (press statement, 8 September 2022)). The energy price guarantee (a matter that is literally of life or death to many people, and a matter of survival or not for many businesses) needs to be fleshed out and of course one of the controversial aspects of the measure is the decision not to impose any further windfall tax on energy suppliers. Another controversial aspect is the unsurprising announcement by Truss that the Government would resume its support for fracking:
“We will end the moratorium on extracting our huge reserves of shale, which could get gas flowing in as soon as six months, where there is local support.”
Fracking proposals have effectively been on hold since November 2019, following this announcement by Andrea Leadsom and Kwasi Kwarteng: Government ends support for fracking (press statement, 2 November 2019)
“On the basis of the current scientific evidence, government is confirming today that it will take a presumption against issuing any further Hydraulic Fracturing Consents. This position will be maintained unless compelling new evidence is provided. While future applications for Hydraulic Fracturing Consent will be considered on their own merits by the Secretary of State, in accordance with the law, the shale gas industry should take the government’s position into account when considering new developments.
The OGA has advised the government that until further studies can provide clarity, they will not be able to say with confidence that further hydraulic fracturing would meet the government’s policy aims of ensuring it is safe, sustainable and of minimal disturbance to those living and working nearby.
The Infrastructure Act 2015 included the requirement for operators to obtain Hydraulic Fracturing Consent which ensures that all the necessary environmental and health and safety permits have been obtained before activities can commence. The Consent process also includes the requirement for an independent financial analysis of the operator to be carried out to ensure they can meet their licence obligations, including decommissioning.”
“We placed a moratorium on fracking in England with immediate effect. Having listened to local communities, we have ruled out changes to the planning system. We will not support fracking unless the science shows categorically that it can be done safely.”
By way of contrast, as quoted by Sir Keir Starmer in his response to Truss’ speech, this was Kwarteng from March 2022 when he was Business Secretary:
“Even if we lifted the fracking moratorium tomorrow, it would take up to a decade to extract sufficient volumes – and it would come at a high cost for communities and our precious countryside.
Second, no amount of shale gas from hundreds of wells dotted across rural England would be enough to lower the European price any time soon.
“And with the best will in the world, private companies are not going to sell the gas they produce to UK consumers below the market price.”
Surely there are at least five questions at large:
Is there now adequate scientific evidence that fracking is safe?
We are waiting for the publication of a review by the British Geological Survey of the science of fracking, commissioned in April by BEIS, which has apparently had it since early July. Its publication is apparently imminent.
Have we any headroom within the “net zero by 2050” target to allow us to continue relying on extracting and burning hydrocarbons and what example does this set?
A bigger question but surely this is a big step away from where we should be heading.
Is it feasible in any event to extract meaningful levels of shale gas which would have any meaningful effect either on energy security or energy prices?
Maybe circumstances have changed so radically since Kwarteng’s March 2022 comments such that current gas prices suddenly make fracking a potentially economic proposition? We don’t have the data but what a u-turn that would be from that March statement. In any event is there the evidence that as a country we do even have large amounts of shale gas to extract? The quantities would surely need to be enormous to have any economic impact.
Given the technical and planning processes involved, and widespread public opposition, how will projects secure local support such that gas can be flowing within six months?
It’s interesting to compare with the on-shore wind policy position – still restrictive, the killer restriction being, by way of footnote 54 of the NPPF, that “a proposed wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified as suitable for wind energy development in the development plan; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing.”
Who knows, perhaps we will see a return to the idea of a “shale wealth fund” for the benefit of local communities that I have just remembered that I was writing about in my 8 August 2016 blog post Back Yard Back Handers?
So is this all largely about anti-woke political positioning – and, as with the decision not to impose any further windfall tax on them, about signalling to energy companies that the UK is still open for (fossil fuel) business?
In the words of our fictional Prime Minister Francis Urquhart: “You might very well think that; I couldn’t possibly comment.”
Simon Ricketts, 10 September 2022
Personal views, et cetera
NB For up to the minute policy commentary on fracking issues I do recommend the Drill or Drop website.
“When Britain built something big” is the sub-title to Dave Hill’s book Olympic Park, which tells the story of how an Olympic park was created in London’s Lower Lea Valley in time for London 2012. It is a detailed factual account, not just of the politics, planning, infrastructure engineering and deal-making that led up to that event, but of its implications in terms of urban regeneration and legacy.
I’m interviewing Dave about the book and its themes at 6 pm on Tuesday 30 August 2022 on the audio social-media app Clubhouse, and you’re welcome to listen in here and indeed we’d love to here your own accounts.
A number of things are striking to me, looking back.
The first is that huge things can be achieved if individuals and institutions collectively grasp a vision and secure the necessary buy-in. At a time when this country had perhaps lost its self-belief in being able to deliver a project successfully and on time, here we were setting ourselves up to fail – but we didn’t. By luck there was a new system of London regional government in place to facilitate London’s bid for the games (Ken Livingstone as mayor, not a sports fan at all but persuaded as to the regeneration potential of a London Games) with the full support (not easily secured by the indefatigable Tessa Jowell) of the Blair government, and with the individual host boroughs, with capable leaders, willing to come together as a Joint Planning Applications Team to determine massively complex planning applications within tight timescales.
The second is that there are inevitable trade-offs if a project such as the transformation of this huge area of east London was to be achieved by what was an immovable deadline. When London secured the Games, the London Olympic Games and Paralympic Games Act 2006 gave significant powers to unelected bodies, which has continued with the creation of the London Legacy Development Corporation in 2012. Many people’s homes and businesses were the subject of a compulsory purchase order, which was confirmed after a 41 day inquiry and which survived at least three legal challenges in the High Court. Should we have done it? Or should we have let community politics take their course?
The third is that whilst it is important to have the necessary statutory processes and a strategy, so much comes down to problem-solving, creativity and negotiation. Whilst the right calls may have been made in the negotiations necessary with the Stratford City development partners (at times a fragile partnership due to the takeover of Chelsfield during the process), was money wasted in deciding to proceed with a stadium design that did not easily allow for West Ham’s subsequent use – and just how good was West Ham’s eventual deal?
The fourth is that engineering constraints and their lead-in periods can cause headaches – for example the huge commercial, logistical and regulatory challenge of undergrounding electricity lines and removing pylons – achievements which we then utterly take for granted.
The fifth is the need for cross-party consensus – long-term projects can’t be the punchbag of short-term party politics. So there was the unholy alliance between Livingstone, expelled from the Labour party, and the New Labour government, both then replaced before the Games themselves by Johnson and the Conservative/Lib Dem coalition and now the approach to various legacy aspects being the domain of Sadiq Khan.
The sixth is that surely we need to learn from what went well and what perhaps didn’t, and to apply it to the immediate challenges around us: climate change, including renewables and making existing buildings more energy-efficient; and indeed the challenge of delivering a new generation of affordable homes. What more broadly should we learn about how our planning system needs to adapt?
There is so much more to talk about. Do join us, or read the book, or both.
Then do join us again a couple of weeks later for another book club special! At 6 pm on Monday 12 September 2022, we have barrister and broadcaster Hashi Mohamed, to talk about his book, A home of one’s own – his very personal take on the housing crisis, its causes and some possible solutions. Invitation here.
You can RSVP for the events on the clubhouse app via the links so as to be reminded when the event is starting, or just log in when the time comes
My ear-worm for this blog post is a 40 year old song by Spandau Ballet. Possibly not originally about home improvements in the green belt, with one word changed its chorus goes like this:
Reasons, reasons were here from the start,
It’s my extension,
It’s my extension.
Reasons, reasons are part of the art,
It’s my extension,
It’s my extension.
Words are important. If you engage a competent lawyer, their toolbox will be full of precise words, as short as possible for the job, together with the necessary interpretation widgets, i.e. case law.
If you engage a competent builder and say to them that you would like an extension to your house, would you both be assuming that, inherent in the word the word “extension”, it would need to be attached to the house rather than, say the replacement of an outbuilding by a larger structure down the garden 20 metres away from your house?
It’s a really important question if your house is in the green belt, because you don’t have to demonstrate “very special circumstances” where specific exceptions in paragraph 149 of the NPPF apply. Two of the exceptions are as follows:
“c) the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;
d) the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;”
If an out-building falls within (d), the size of its replacement is obviously constrained by the fact that must be “not materially larger than the one it replaces”. But what if the replacement were actually to be interpreted as an extension to the house itself, such that you just have to show that the replacement “does not result in disproportionate additions over and above the size of the original” house? Gold!
Over to Eyre J in the Warwick case:
“The Second Defendant’s property is in Vicarage Road in Stoneleigh. The village of Stoneleigh is “washed over” by the West Midlands Green Belt. The Second Defendant’s property consists of a Grade II timber-framed cottage (“the Cottage”), a garden, a garage, and a currently disused timber structure.
That structure has a footprint of 10.2m2 and appears to have been originally used as the garage for the property but that use has been superseded by a more recently-built garage. This timber structure is in the garden of the Cottage but is approximately 20m from the Cottage itself. The Second Defendants sought permission to demolish the timber structure and to replace it with a garden room/home office with a footprint of 16m2.”
Warwick District Council had refused the application, taking the position that paragraph 149 (c) did not apply. On appeal, the inspector disagreed:
“9. Framework paragraph 149 (c) permits the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building. The existing building was the original garage to the house and as such could reasonably be considered to have been a normal domestic adjunct to it. Likewise, the proposed outbuilding would be used for purposes clearly related to the occupation of the dwelling. It would be in the same location on the site, relatively close to the dwelling and within a group of buildings closely associated with it. Therefore, I am satisfied that the proposed out building can be considered as an extension to the dwelling.
10. The evidence before me is that there have been various extensions to the original building and a detached garage. Planning permission has recently been granted to replace the rear single storey extension with something similar in scale and the garage is relatively small in relation to the dwelling. The proposed outbuilding would be located behind this building and would be much smaller in scale compared with the host dwelling. Given the modest scale of these existing additions and the limited additional footprint from the proposed outbuilding, I find that the proposal, in combination with previous additions, would not result in disproportionate additions to the host dwelling.”
The inspector allowed the appeal and the Council challenged the decision. Eyre J concluded as follows, after analysis as to the normal meaning of the word “extension” and then the policy context within which it is used in paragraph 149 (c) (the Council = Claimant, the Secretary of State = First Defendant):
“Looking at the matter in the round no one of the points advanced is conclusive by itself but I am persuaded by the combined weight of the points advanced by the First Defendant. It is right to note that if the language of [149(c)] were to be considered in isolation from its context then the Claimant’s interpretation of the words used would be the more natural reading of those words. It is not, however, the only legitimate reading of the words and the First Defendant’s interpretation that an extension of a building can include a physically detached structure is also a tenable reading of the words used. The First Defendant’s interpretation is, in my judgement, the reading which accords considerably more readily with the content and purpose of the relevant part of the NPPF. While the Claimant’s interpretation has the potential to lead to artificial distinctions which would do nothing to further the purposes of the Green Belt whereas that advanced by the First Defendant would remove the risk of that artificiality without jeopardising those purposes. Accordingly, I am satisfied that [149(c)] is not to be interpreted as being confined to physically attached structures but that an extension for the purposes of that provision can include structures which are physically detached from the building of which they are an extension.
If, as I have found, an extension can be detached from the building of which it is an extension the Inspector did not err in law in granting planning permission and this claim fails.”
I don’t know if Warwick will be applying for permission to appeal. As a humble jobbing planning lawyer I’m not sure I would have predicted the conclusion to which Eyre J came. Surely an “extension” to something is by definition connected to that thing? Isn’t that so unambiguous that you do not then look at the policy ramifications? But my views are irrelevant and I suspect we shall be seeing an increase in proposals by the owners of large homes in the green belt for the construction of out-buildings, relying full square on this case. And the larger the house, the easier it will be to show that the “extension” is not a “disproportionate addition” – it’s the planning law equivalent of regressive taxation!
Of course any politician’s toolbox is also full of words, there to serve a different purpose: not to define, but to win elections – and the two words “green belt” are right there near the top.
Does Rishi Sunak for instance really believe, or understand the real-world implications of, what he has been saying in relation to the green belt, in terms of tightening current restrictions? See e.g. Rishi Sunak: I’ll save Britain’s ‘precious’ green belt (Telegraph, 27 July 2022).
Or last week, according to twitter:
“We will stop urban mayors trying to push development out to the Greenbelt in largely Conservative areas. I will stop that from happening.”
Odd isn’t it? Owners of large homes in the green belt will be cock-a-hoop over the Warwick ruling (the larger the home, the more advantageous the ruling) and yet, without drawing breath, no doubt fully behind politicians who say no development in the green belt. Or at least, whether or not Sunak wins, (back to my ear-worm – take it away Tony Hadley…) it’s my instinction.
NB On the subject of words, spoken and written, we have two clubhouse Planning Law Unplanned sessions of interest coming up fast:
At 6 pm on Tuesday 30 August 2022, we have Dave Hill, who of course runs On London and is one of the leading commentators on London planning and development issues, to talk about his recent book, Olympic Park – a fascinating story of the politics, deal-making and sheer collective endeavour that delivered London 2012. Invitation here.
At 6 pm on Monday 12 September 2022, we have barrister and broadcaster Hashi Mohamed, to talk about his forthcoming book, A home of one’s own – his very personal take on the housing crisis, its causes and some possible solutions. Invitation here.
No talking heads today, despite it being the second anniversary of the publication of Planning for the future. We’re of course in stasis at least until the current round of talking (to the Conservative party membership) concludes and votes are cast. But then of course the party conferences will be hoving into view. And so it continues. (It goes without saying that the prospectus for an updated NPPF didn’t appear in July as promised).
Instead I’m simply going to repost a piece which my colleagues Mary Cook and Aline Hyde wrote last week on the updated BRE guidance, Site layout planning for daylight and sunlight: a guide to good practice, published in June 2022. Given the role that the guidance plays in the planning system, it is odd (to say the least) that it is not freely available but it isn’t (save for the index, glossary and introduction). Instead the guidance can be purchased for, gulp, £75 from the BRE bookshop.
Mary and Aline, over to you:
“BRE have issued a “comprehensive revision of the 2011 edition of Site layout planning for daylight and sunlight”. Like its predecessor,this 2022 third edition “gives advice on site layout to achieve good sunlighting and daylighting both within buildings and in the open spaces between them”. Equally it is “purely advisory and the numerical target values within it may be varied to meet the needs of the development and its location.”
Daylight
So what is new? Out go the average daylight factor (ADF) and No Skyline/Daylight Distribution Tests as recommended measures to assess the overall amount of daylight in a space. Those familiar with the old minimum values of 2% ADF for kitchens, 1.5% for living rooms and 1% for bedrooms must set this methodology aside since the third edition supersedes the second edition which “has been withdrawn”. All outstanding applications, environmental impact assessments & appeals which include daylight assessments will need to be re-assessed against the third Edition of BRE 209.
Daylight is now to be checked using either of two methods set out in British Standard 17037: 2018 “Daylight in Buildings” (“BS EN 17037”). Appendix C to the BRE 209 guidance summarises the two methods, both of which are more complex than the old ADF method.
The first (“the illuminance method”) is based on target illuminances from daylight to be achieved over specified fractions of the reference plane (a plane at table top height covering the room) for at least half of the daylight hours in a typical year. This requires climatic data for the site location “at an at least hourly interval for a typical year” and is described as “detailed and calculation intensive”. The alternative method (“the daylight factor method”) is based on calculating the daylight factors achieved over specified fractions of the reference plane but we are told that “usually a detailed simulation model is still used”. The results have then to be tested against the new BRE recommended daylight targets. Appendix C explains that the guidance in BRE 209 is intended to be used with BS EN 17037 and its UK National Annex. BS EN 17037 gives three levels of recommendations for daylight spaces and its Annex A provides values for different room types. For compliance with the standard we are advised the minimum level should be used. BRE 209 warns against very high daylight levels, where summertime overheating (of which more later) can arise.
Under the heading “Presentation of Results”, paragraph C32 of BRE 209 advises that for each room the median illuminance or median daylight factor should be presented “as this enables a comparison with the different recommendations in BS EN 17037”. This sentence needs to be read in the wider context of both BS EN17037 and the UK National Annex. “For non-domestic interiors where daylight calculations are undertaken, the minimum illuminance or median daylight factor should also be presented” the reader is advised. Practitioners will be alive to the fact that development planning policies or supplementary planning documents refer to the BRE Guidance rather than to BS standards. It is the advice in BRE 209 which is to be applied in such cases.
Specified default values are given to be used if none are measured or specified, and there are also maximum reflectances indicated for specific surfaces. Where specific surfaces finishes are used, appropriate factors for maintenance and furniture should be included. It is notable that the guidance is clear that the surfaces utilised in the assessment, as well as the maximum reflectances, need to be presented in the results. Where specific surfaces are relied upon either to achieve compliance or near compliance, it will be important to prove the characteristics of the material by reference to the manufacturer’s specification. Checking on the longevity of the product would also be useful. The wider the palette of materials with these characteristics, the more choice the developer will have at their disposal.
There will inevitably be pressure to impose planning conditions on planning permissions informed by such assessments to ensure that the surfaces relied upon to show compliance (or near compliance) with BRE 209 are used in the final development and thereafter maintained. It is unrealistic to think this can be avoided unless default values are used. The risk of planning conditions should be identified with the client up front. A decision needs to be taken to see if reliance on default values is preferable in order to avoid this risk. In high end bespoke developments with luxury space this could be a significant factor.
Sunlight
The Annual Probable Sunlight Hours (APSH) test has also been replaced for new buildings (the test is retained for assessing impacts on existing buildings). Sunlight amenity is now to be tested on March 21st when a habitable room, preferably a main living room, can receive a minimum of 1.5 hours of sunlight. This is to be assessed at the inside of the window. Sunlight received by different windows serving one room can be counted, but only if the sun lights the windows at different times. Where the positions of the windows are not known, availability of sunlight is to be assessed at points no more than 5m apart, and at a point of 1.6m above ground level. Though the minimum of 1.5 hours is given in the BS EN 18037, BRE 209 notes that a local planning authority may legitimately seek a different target value for hours of sunlight.
Further Tests for View, Sunlight Exposure & Glare are introduced.
Solar Panels
This third Edition of BRE 209 contains more guidance on the use of photovoltaics (“PVs”). The case of R (on the application of McLennan) v. Medway Council) [2019] EWHC 1738 established that the potential interference with solar panels is capable in law of amounting to a material planning consideration. In that case, the failure of an officer report to consider this impact led to the quashing of the permission.
Within BRE 209, the overshadowing or obstruction of PVs is noted as potentially capable of having a considerable negative impact on performance: where a proposed development of any type is near to an existing solar installation or building it is good practice to try to minimise any loss of solar radiation. Section 4.3 offers new more detailed guidance on this topic.
Most development plan policies that reference the BRE Guidance do so in the context of daylight and sunlight and broad residential amenity considerations, rather than specifically in the context of energy consumption. However, it has long been noted by decision makers that reductions in daylight can lead to increased energy consumption and the associated costs. In the context of Environmental Impact Assessment (EIA), there is no reason why existing solar panels are not capable of forming part of the wider “environment” which might be the subject of “likely significant effects”. Accordingly, where there are likely significant effects, they will need to be assessed. Scoping opinions and directions will need to consider if these effects should be scoped in or out in the same way as broader daylight & sunlight impacts.
Overheating
As in the previous edition, the risk of overheating is referenced and needs to be borne in mind. This is an area which is acquiring increased significance especially in the context of specialist accommodation for the elderly, where people can reasonably be expected to spend more time inside. The London Plan leads the way by including a policy directed to managing risks to the city from heat (Policy SI4), which highlights orientation and shading as key elements of the cooling hierarchy.
The Building Regulations 2010 Part O took effect on 15 June 2022 but applies only to new residential buildings. It does not apply to extensions added to residential buildings after they are built, nor does it apply to changes of use. Developers will require designers to heed the Building Regulations since compliance is mandatory. The need to comply with the Building Regulations is a material consideration for the designer just as much as the decision maker determining an application. Securing a consent for a scheme being designed now which is then not deliverable without requiring alterations to comply with the Buildings Regulations is likely to be problematic and time consuming. However, there may be a number of ways in which compliance can be achieved. If the need to comply with the Building Regulations resulted in a design that gave rise to identified planning harms, it should not be assumed that the permission would be granted in all cases. This would be a fact specific judgement weighing competing planning considerations in the overall planning balance.”
Thank you Mary and Aline!
(This is intended as an overview by planning lawyers who are not rights of light surveyors rather than to be relied upon as advice. Please contact Mary or Aline if you have a legal question and for detailed advice on the practical application of the guidance, do approach a rights of light surveyor).
SIMONICITY 